When Marijuana Reform Is A Medical Necessity

Larry M. Elkin,

Jesse Teplicki, a 50-year-old resident of Hollywood, Florida, recently took a big gamble: He told a jury the whole truth about his decision to knowingly break the law.
An anonymous tip led police officers to Teplicki’s home, where he cooperated in showing them the marijuana plants he was growing for his own medicinal use. As Teplicki told the Miami Herald, “I took a bad moment and said this is going to give me freedom because I feel like a criminal growing this stuff, and now if I can just explain to someone honestly what this is all about.” He has used marijuana for years to treat chronic anorexia nervosa.

What made Teplicki’s case unusual was not that his defense was built on “medical necessity,” but that his case actually went to a jury. It was the first such case known to have done so in Florida, the Herald reported; previously, arguments about medically necessary marijuana use had only been presented in bench trials decided by a judge. But Teplicki’s honesty and confidence in the judgment of his peers paid off. The jury acquitted him in a little over half an hour.

Essentially, this case is an example of jury nullification. Nullification is a discretionary act, rather than a legally sanctioned jury function, but it has a long tradition in the United States. A jury deliberately refuses to apply the law despite understanding it and finding the evidence compelling, out of a sense of justice, fairness or compassion. American juries have taken this course throughout our nation’s history, from civil rights cases to alcohol control cases during Prohibition.

But jury nullification is a blunt tool for correcting errors in the justice system. Ordinarily, courts work best when judges instruct jurors on the law, and the jury then determines the facts, as it is charged to do. It is also risky for defendants like Teplicki to forego a plea deal in pursuit of jury nullification. If the defendant is, in fact, convicted, prosecutors and judges tend to throw the book at those who put them through the exercise of a genuine trial, especially in cases like this one. Had the Florida jury not nullified the law, Teplicki faced up to five years in prison. It is hard to see how anyone would find this result a just one.

When a majority of Americans have come to believe that marijuana use is generally harmless and occasionally medically necessary, laws that refuse to acknowledge this view are untenable. Such is the case with the federal law that continues to maintain that marijuana has no accepted medical uses when, in fact, it does. Jury nullification is far from an ideal solution, but it is hard to blame those who advocate such measures when the law so badly lags behind societal reality.

So we find ourselves in a legal limbo, not unlike the one occupied by same-sex couples over the past two decades as society transformed from broadly rejecting same-sex marriage to broadly accepting it. We can hope that, like marriage equality, reform gains momentum. In the meantime, we are stuck in a situation where the law of the land does not reflect the reality of how most of us live.
It’s a shame that the current administration, headed by an experienced marijuana user, has failed to take the lead in updating our national drug policy, so that lagging states like Florida could more easily follow.

Despite years of hinting he might, someday, perhaps get around to advocating change in marijuana law at the federal level, the president has made no public shift in position. Instead, he continues to lament the costs of imprisoning nonviolent drug offenders while carefully avoiding expressing any personal opinion at all.
As more states liberalize their marijuana laws, the federal government is content to sit back and watch.

This leaves us in the uncomfortable position of watching U.S. prosecutors targeting state-level marijuana operations while the Justice Department toothlessly suggests they should back off. Without a real change in the law, this gap will continue to widen.
Until our drug laws reflect real life as ordinary citizens understand it, defendants in aggressive prosecutions will have to take their chances and hope for a judge or jury willing to do what is necessary, medically or otherwise.