Today, marijuana is legal to use for medical reasons in 23 states and Washington DC. While the laws vary from state to state, the legislatures in each have passed laws that make it legal to use cannabis for medical purposes within their borders. As long as the residents comply with the conditions of state law, they will not be prosecuted by the police of that particular state.

This does not immunize anyone from prosecution by the federal government which can still bring drug crime charges at their discretion. So, is possession and use of marijuana indefensible in federal court or in those states that have not yet legalized weed?

The Medical Necessity Defense

To convict a person of a drug crime charge, the prosecution must prove each point of the pertinent law. If they do, the defendant will be convicted unless he or she can bring to bear a valid and recognized defense.

Some states recognize the so-called medical necessity defense. If the defendant can present enough evidence to support medical necessity, he or she will be acquitted despite the evidence against him or her. Essentially, the court is asked to weigh the interest of the state in enforcing its drug use laws against the defendant’s competing interest in maintaining his or her health through the use of an illegal substance.

To do this, the defendant must show evidence that the defendant did not intentionally create the circumstances that caused the crime. The defendant must also show that he or she could not accomplish the same end through other legal means. And finally, the defendant must show that the harm intended to be avoided was worse than the crime he or she perpetrated to avoid it.

In plain English, you must show that it’s not your fault these laws exist, there was no reasonable legal alternative to the benefit you get from weed, and the benefit outweighs any harm you are doing.

Non-violent drug offenders

Is the fact that the defendant is not a danger to anyone a defense? Many – perhaps most – marijuana users are not violent by nature. The only danger they present is to themselves. But the laws on the books often require the most draconian penalties for possession, consumption and above all, sale of illegal drugs. Many non-violent drug offenders receive prison sentences exceeding those served by murderers.

The intent to sell and the amount of marijuana the defendant was arrested with weigh more heavily than the actual threat presented for violent behavior. Mandatory sentences still exist in states where medical marijuana is not yet legal, tying the hands of judges who might otherwise be inclined toward leniency.

First-time offenders

Being a first-time offender may still qualify you for stiff penalties, but being a third-time offender in some states can get you locked up for life with no chance for parole. The medical necessity defense may not be much, but it’s hope. Until the laws change.