Michael Tate has been indicted for unlawful possession of marijuana on March 29, 1983, in violation of N.J.S.A. 24:21-20(a). The defense has given notice to the prosecution that at trial the fact of possession will be admitted but that proofs will be adduced on the alleged defense of "medical necessity" for the possession and use of the substance. The State moves for a pretrial resolution of its contention that as a matter of law, "medical necessity" is not a cognizable defense to this criminal charge. For reasons which follow, I rule that "medical necessity" can be a viable defense and, accordingly, deny the State's motion to strike.
Michael Tate is a quadriplegic. He alleges that he uses marijuana because it eases the pain of spastic contractions to which his body is regularly subject and that no other prescribable medication gives him such relief.
N.J.S.A. 24:20-20(a) provides:
It is unlawful for any person, knowingly or intentionally, to obtain, or to possess, actually or constructively, a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this act.
The penalty for obtaining or possessing marijuana in an amount of more than 25 grams is imprisonment for up to five years or a fine of $15,000 or both. N.J.S.A. 24:21-20(a)(4). Marijuana is classified as a Schedule I controlled dangerous substance. That classification means that the Commissioner of Health has found that it "(1) has high potential for abuse; and (2) has no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision." N.J.S.A. 24:21-5. It is a non-prescribable controlled dangerous substance.
Tate argues here that at trial he will be able to adduce proofs from which a jury could conclude that it is medically necessary that he have and use marijuana to alleviate his symptoms in similar fashion to its use by glaucoma and cancer patients -- a practice permitted under certain federal and state laws and by court decisions in a limited number of jurisdictions. The State argues that such proofs are legally irrelevant; that the prohibition against obtaining or using marijuana in New Jersey is absolute; that "medical necessity" as a justification for criminal conduct is not recognized under our law and that Tate will have to rely on other prescribable medications to alleviate his condition.
"Necessity" as an affirmative defense based on justifiable conduct appears in the New Jersey Code of Criminal Justice. It is not, however, defined. N.J.S.A. 2C:3-2a. provides as follows:
a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
What does "necessity to the extent permitted by law" mean? Does that phrase include "medical necessity"?
The inquiry begins with Vol. II Commentary, The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, October, 1971. At page 80 the Commission commented on "necessity" in the following language:
This Section incorporated the defense of necessity to the extent that such a defense is now permitted to operate to justify conduct under the law. There is no existing statute on the necessity problem in New Jersey and there have been no cases dealing with the issue. The drafters of the MPC take the position that, "while the point has not been free from controversy, it seems clear that necessity has standing as a common-law defense. Such issue as there is relates to its definition of scope." MPC T.D. 8, p. 5 (1958). Many other states have adopted statutes recognizing the defense and defining its limits. The Commission believes it more appropriate to leave the issue to the Judiciary. The rarity of the defense and the imponderables of the particulars of specific cases convince us that the Courts can better define and apply this defense than can be done through legislation. In this regard, the courts should look both to MPC § 3.02 and New York Penal Code § 35.05 for guidance as to the scope of the defense as defined at common law.
As pointed out in the commentary the defense of necessity did exist at common law. The framers of the Code evidently intended not only that it be incorporated into the framework of our criminal law, but that it be allowed to grow and be clarified (in the traditional evolutionary process of the common law) on a case by case basis and against varied factual backgrounds.
The basic thrust of the common law was stated by the Supreme Court of Vermont in the following fashion:
The defense of necessity proceeds from the appreciation that, as a matter of public policy, there are circumstances where the value protected by the law is eclipsed by a superseding value, and that it would be inappropriate and unjust to apply the usual criminal rule. State v. Warshow, 138 Vt. 22, 26, 410 A.2d 1000, 1003 (1980).
Courts have considered necessity as a justification for criminal acts under the following, varying, factual conditions. These cases convey a sense of what public policy has meant to different courts in the past.
A woman, while under the influence of alcohol, drove herself to a hospital after a brutal beating by her husband. The court held that "her need for treatment as she conceived it to be,
outweighed the criminal law of driving under the influence." State v. Shotton, 142 Vt. 558, 458 A.2d 1105 (1983).
A vessel was ruled not liable for a violation of embargo laws where, during a legitimate voyage, it was obliged by stress of weather to take refuge in a proscribed port. Brig " Struggle " v. United States, 13 U.S. (9 Cranch) 71, 3 L. Ed. 660 (1815).
Self defense, defense of another, defense of one's home have always been considered necessitous circumstances justifying the use of force which otherwise would be criminal. See N.J.S.A. 2C:3-4, 5 and 6 as generally codifying this concept.
Mutiny at sea was held justifiable as necessary if it could be shown that the sailors had a reasonable basis for perceiving that the only means of preserving their safety would be to disobey their captain. United States v. Ashton, 24 F. Cas. 873 (C.C.D.Mass.1834).
A speeding violation was justified by necessity where the driver was a military dispatcher delivering an emergency message in time of war. State v. Burton, 41 R.I. 303, 103 A. 962 (1918).
The necessity defense, however, was unavailable to one who burglarized a restaurant and sought to justify the act on the basis that he needed the money taken for food for his family. There were alternate means available to meet that concern. State v. Gann, 244 N.W. 2d 746 (N.D.1976).
However, when deliberate homicide was involved, (and except for self-defense and defense of another or of one's home) common law courts did not allow necessity as a justification for the criminal act. Thus in United States v. Holmes, 26 F. Cas. 360 (CC E.D.Pa.1842) a sailor was tried for causing male passengers to be thrown overboard to prevent a lifeboat full of women and children from capsizing because of overloading. Necessity was ruled out as justification as a matter of law. In Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) an ...