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 Yo|umo 104 - Number 250 - hoe 224g Tuesday, December 28, 1978
 THE DAILY WASHINGTON
 . Law Report.er ,
 Established 1874
 _,:C:__psr[QfCouM the crime charged. Moreover, defendant I. Does _he common law rec_gnize the
 - admitted that he had grown the marijuana in defense of necessity in criminal cases? If
 _y personal consumption. He further testified Although the defense of necessity was j
 narcotic are restricted by Jaw, the existence of such a defense has been
 _fi_$_l IS _l _U|lt_ O| p0ss_$$J0_ _f _rlj_fla Defendant nonetheless s_ugh_ to exor_erate recognized by _egal scholars since the turn of
 _$$ of _fi_flZs 0_ _di˘_! _e_sstt_/wh_re h_ himself through the presentation _f evidence _he twentieth century. Professor Courtney
 st_$ that t._eSti_s of _ri]uafl_ sm_ks haci tending to show that his possessisn of the Kenny has noted, for example, that the same
 _n_flc_a_ affect _a his _ys co_d_tio_, r_orm_iIzi_
 mariijuanawas the result of medical nece_s_:y, togic which prevents the imposition of civil
 i_t_˘o|ar p_$st_rs $_d [sa$o_ia_ v[_t_at dtsta˘- Over gsvernment objection of irrelevancy, liability _a situations in which one has harmed
 • *fi_, defendant testified that he had begun expe- _he person or property of another in order _o
 UNITED STATES v. RANDALL, Super, rienc_ng visual difficulties as an undergradu- avoid a greater harm may also be applicable in
 Ct. D.C, Crim. No. 65923-75, November 24, ace in the iate 1960's. In 1972 a local certain criminal cases, s. Simfiarly, Ciarrkand
 _976. O_nn/on per Washington, J. John Karr ophthalmologist, DrY Benjamin Fine, dingo Marshall in their treatise on criminal law note
 %r defendant. Rivhard.,_olker for United nosed defendant's condition as glaucoma, a
 disease of the eye characterized by the
 several situations in which the
 necessity
 defense may be raised to criminal charges.
 _tates. excessive accumula_tion of fluid causing in- This common iaw defense is also recognized b_
 WASHINGTON, J.: On August 27, 1975, creased intraocular pressure, distorted vision such legal scholars as William L. Burdick,
 !.fondant Robert C. Randall was arrested and and_ ultimately, blindness. Dr. Fine treated Ro|lin F, Perkins,_ and M. Cherif Basaouini. 7
 .h_,rged with possession of a dangerous drug, defendant with an array of ˘_nventionai More recently, the necessity defense has been
 ;.SD, and of a narcotic, marijuana, in violation drugs, which stabilized the iatraocular pros- considered in leading law reviews_ in modern
 _ Sections 33.702(a)[4) and 38-402 rennet- sure when first introduced but becarae :reference works,9 cases, Z0 the Model Penal
 ::veto of the District of Columbia C_)de. increasingly ineffective as defendant's taler- Code and the various state laws which have
 i_feadant moved ˘o suppress these items as once increased. By 1974, defendant's in_rao been revised under its influence.el While a
 ._'_dence, aileging that they were the fruit of ocular pressure could no longer be controlled consensus has not been reached concerning
 _._ _llegat search. After argument° the motion by these medicines, and the disease had the specific contours of the defense, there is
 .a,, granted with respect to the LtD, and the progressed to the point where defendant had substantial unanimity in the belief that such a
 _,_wiated charge subsequently dismissed; the suffered the complete toss of sight in his right defense exists.
 . _ _ , _ [ ,1_ _ w _ denied with respect to the eye and considerable impairment of vision in As Clark and Marshall supra, note:
 _:':)uan_. An additional pre-tria_ request, a _he left,
 ,,,_,m to dismiss on constitutional grounds, Despite the ineffectiveness of traditional An act which would otherwise be a crime
 . _, w,tt_drawn. The case came for trial by _che _rea_ments. defendant during this period may be excused ff the person accused can
 ,,_r_ on July 20 and 22, 1976, after the nonetheless achieved some relief through the show that it was done only in order _o avoid
 • ._p;etion of which this matter was taken inhalation of _n_rijuaaa smoke. Fearing the consequences which couldno_ otherwise be
 ._d_.r _dvisement. Pest trial briefs were legal consequences, defendant did not inform avoided, and which, if they had followed,
 -_i. _nd a memorandum on behalf of the Dr. Fine of his discovery, but after his arrest would have inflicted upon him, or upon
 :._,.r, dant was received on September 14. detendant participated in an experimental others whom he was bound to protect, in-
 i_, :_ i_es recessed between September i7 program being conduced by ophthalmologist evitab|e and irreparable evil. _2
 _.-_ ,k-t.ber _, and after further delay Dr. Robe_ Hepler under _he auspices of the Necessity is the conscious, rational act of one
 _'_,,:med by the illness of the trial judge, Lhe United States Government. Dr. Hepler teso who i_ not guided by his own free will It
 , _r_ p_r_ant to due deliberation and upon tiffed that his exaraination o_ the de_endam arises from a determination by the individual
 ,._,,_rst_ of defendant's post trial sub- revealed that treatment with conventional that any reaszmable man in his situation would
 ..,-Has. a,_' readers this decision, medicatisns was ineffective, and also that find the personal consequences of violating Lhe
 surgery, while offering some hope of preserv-
 FACTS lag the vision which remained to defendant, (Cont'd. on p, 2251 - Necessity}
 _'_" _ _re sot ia dispute, The govern- also c,_rried signffican_ risks of immediate _. As Judge Leventhal noted in United States v. Moore,
 "-_' _ ,_tabfished, and _he defendant has blindness. The results of the experimental _ F.2d 11_9,158U.S. App. D.C. a75, 417 (D.C. Cir. 1973L
 _,_ _tt_,_ed to refute, that on or about program indicated that _he ingestion of Lhe common law defense of necessity has been "more
 -c,,_ 2I. )975, police officers in the course marijuana smoke had a beneficial effect on d.isc_d than litigated".
 ' '-'_ _,,rmal duties noticed what they defendant's condition, normalizing intraooular _. co Kenny, Outli_# of Criminal Law _-71) i1907),
 - -, _ '.,, he cannabis plants on the rear pressure and lessening visual distortions. 4. w. Clar_ _d W. Marsh_l, _a_Oe on g_/_w o/
 C,_/_ve_ 104 et s_q, (dth ed. 1940).
 _e-_: a_'_d :n _he fror_t windows of defendant's 5. w. Bardick, :the La_ o/Crime _ (INS).
 _'_ _ L_ the basis o[ these observations OPINION s.R. Perkfias, Perkin_ Ca-imi_agLaw_l (_d ed. 19_J).
 _',._ _ _ ,.eat which confirmed the _resence This is a case of first impression in this 7. M. B_uiut, Crlminai Law and i_a incenses 10_ et
 ,_ T_ _ _ive ingredient of marijuana, a jurisdiction, one which raises significant seq. I_9).
 "_._ _z,, t_sued and a search of the s_ See, for example, Fletcher, The [ndividuaKza_ion _f
 Excusing Canditior_, 47 8. CaL L. Roy. 1274 _1974), _nd
 issues. Consequently, the Court recognizes its
 "'_ ._ _._due_.ed _e August _, 1975. responsibility to set forth clearly and in some Note, du_tifiza_io_.. _e Impact af ff_e Ma<_[ Pout Code on
 _'" _ bant_ _nd a dried substance |ater depth its understanding of the applicable _aw. s_ Rs]orm, 75 CCoium. L. Roy. _14 {t975}.
 9. _e, for example, 1 R, Auder_z_n, W_ar_on'_ Crimln_
 - _d ,._ marUuan a were seized, and The legal questions presented by Chin code can _ _ P,_m_dure ,mS-40_ (_9S7), _ A_ Jr _d Cr/_
 _'_.._ _ arrest folbawed, be _tated a_ follows: Law _}99.
 _" _'*_- :_' government's evidence demon-
 u,,_ t_..a_ _ _,_ sub_t,snce seized _t defend- L Does the _mmon law recognize the de- _o. S_me _ample csse_ will be diseuued h_rsia_._r.
 _ _ '_,_e_ _aa marijuana lz, Made[ P_al Code, _3:01 and $.02, and C,_m_ent
 possession of lense of necessity in criminal cases? [f s_, {Tent. Draft No. 8, 9, I0, I_).
 _s _ _ib_d _ by D.C.' C_e Section what are its parameters7 z2, w. C_k _ w. M_h_l, _ot_ 4, _.
 _" _ _gg all the elements of 2. Have the elements of a necessity de- TABLE 0F CASES
 _' _ _"_'_ _an= _ _o_ totally lense beer estab|_shed here?
 _ _ _ '_, ",_ _ot_ _=t r._iua.z These questions w_ be dealt with separately
 _ a..,_ _',Za • a _e_ D_.'tnr_ ol Columbia. in the discussion which foilowso United States v, Randall ............... 2249