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 One of the oldest recognized drugs, mari-
 _mpr0_ t_l q_a[_ anti CQ_-6_QCt_VQn_S Of y_r practice with th6 h6_p of juana was not regulated in the United States
 LAWYER'S ASSISTANT, iNC. until the Pure Food arid Drug Act of 1906,
 which rrequired that the presence of marijuana _7
 be' indicated on the labels of products of which
 T@mp0ra_ settees o$ _ttorneys, _aw $cho_ O_uate$ and students, p_raSeg_I_, it was a component. 2o The m(_:tern prohibition
 on ca, ]n Md., D._., Ya= Legal d0llv,W teams, began in 1937, in response to _primarily
 economic pressures 21 without significant in-
 (SOl} 869-7444 P.0. B0x 2016, Ga_hersbar_, Md. 20780 quiry into its effects on users. More recently,
 the 1970 Controlled Substances Actr2 cootie-
 1. The duress or circumstance has been kind of medic_neo _9 ued the prohibition of the use of marijuana,
 brought about by the actor himself; The third limitation, that the harm avoided but a Presidential Commission was appointed
 2. The same objective could have been must be more serious than that perfornmd to to study its effects. Pending receipt of this
 accomplished by a _,ess offensive alter- escape ire was a factor in _he decision in Psopie report, marijuana was classified as a non-nor-
 native which was available to the actor; v. Broum, 70 Misc. 2d 224, 333 N.Y.S. 2d 342 cotic and although its use was stfllprohibiLed,
 or (1972). Defendants, inmates at the facility the penalties were considerably reduced, with
 3. The evil sought to be averted was less known as the Tombs, had been convicted of first offenders being discharged conditionally.
 heinous than that performed to avoid rioting and seizing control of the prison. On The District of Columbia law, however, was
 it. xs appeal the prisoners alleged that they had not changed, and retains the narcotic ciassffi-
 acted in protest of the crowded and inhumane cation based on the I937 Uniform Narcotics
 tn brief, the necessity defense may not be conditions which prevailed at the fanility_ and Act
 raised unless the actor was reasonably that this justification should shield them from Medical evidence suggests that the prohibi-
 compelled by circumstances to commit the criminal penalties. The court disagreed, tion ._;s not weI1 founded.. _ Reports from the
 proscribed act. It is unfeJ,r to excuse one who however, noting that the harm to society President's Commission and the Department
 has brought the compelling situation upon inherent m permitting this transgression of Health, Education and Welfare have
 himself, and it is violative of public policy to among convicted criminals was more poles- concluded that there is no conclusive scientific
 grant an exemption from punishment for tinily damagdng than their grievances° evidence of any harm attendant upon the use
 _ehavior more detrimental to satiety than the In sum, the neceasity defense has been of marijuana. 2_ According to the most recent
 consequences the actor seeks to avoid, or _or recognized at common law as one which arises HEW study, 25 research has failed to establish
 behavmr which is not the least offensive where the actor is compelled by external any substantial phys_cal or mental impairment
 alternative. The application of these principles circumstances to perform the illegal act. caused by marijuana. Reports of chromosome
 is well illustrated by the case law. Provided that the case does not fall within the damage, reduced immunity to disease, and
 The first limitation, that necessity cannot scope of the three limitations, necessity psychosis are unconfirmed; actual evidence ]s
 serve as a defense where the compiling constitutes a defense to criminal liability, to the contrary. Furthermore, unlike the
 circumstances have been brought about _y the so-called hard drugs, marijuana does not
 accused, is a significant component o_the H. H_ necessity been es_abbLshed _ the generally appear to be physically addictive or
 decisionin United S_a2ee v. Moore, 486, F.2d instant case? to cause the user to develop a tolerance,
 11890 158 U.S. App. D.C. 375 (D.Co Cir. _n the case at bar, defendant alleges that he requiring more and more of the drug for the
 1973). Appealing from a conviction in the is suffering from glaucoma, an incurable eye same effects. _ The current HEW report also
 District Court for possession of heroin in disease wnich results inevitably in to_s of notes the possibility of valid medical uses for
 violation of two federal statutes, defendant sight. While conventional medications and this drug. Both the President's Commission
 did not dispute that the government had surgery offer little hope of improvement, and H_W found the current penalties too
 established all the elements of the offenses defendant contends that the _nh_ation of harsh in view of the relatively inoffensive
 charged. In,Lead, he urged that because of his marijuana smoke has a beneficial ellen o_a his character of the drug, and recommended
 harem addiction, he lacked capacity to choose condition, relieving the symptoms and re- decriminalization, Commissions of study in
 to _ct otherwise, and therefore that his fording the progress of the disease. Defendant other countries have reached similar eeoc[u-
 conviction should be vacated because the therefore asserts that he should not be visited sions, 27 and several states have taken steps in
 requisite criminal intent was absent. While with the criminal consequences of pcasession this direction. 2s
 none of the opinions represented a majority of of the proscr_bed narcotic marijuana. The The right of an individual to urotect his
 the nine judges, the concurring opinions by Court finds upon these facts that the body has been weighed by several courts
 Judge Wflkey, joined by Judges M_cK_nnon defendant has estabfished the basic elements
 andRobb, and by Judge Leventhal _ined by of the traditional necessity defense° It remains 2o. _ure Fo_d _nd _r_ Act of _0_. eh _15. :_ St_
 Judge McGowan, noted appellant's role in to consider whether he is barred from _.
 causing his addiction. Since drug dependence asserting it by one of the limitations. 2_. Liquor ms.nufac_urers and distributor_, still recover
 was a condition which the appeUant had freely A brief consideration reveals that of the ing from the effects of Prohibition, were interested tn
 eradicating the potential competition from a drug often used
 brought upon himself, he could not e_pe three limitations, only the third p_ses any for recreationM purposes. Brother, L_c_t and PAic_ Dru_
 criminal sanctions by showing that he had threat to this defendant's use of this defense. (Little, Brown. 1972L in additkm, criminaiizing marijuana
 been impelled by addiction to commit the While the exact cause of defendant's glaucoma simplified the task of eliminating the composition for jobs
 prohibited acts. is unknown, neither the government nor any during the Depression posed by the pr/ncipol _ser_ of the
 The second limitation, that necessity cannot of the expert witnesses has suggested that the drug. Mexican migrant laborers. Munro. "The Msri_sns
 Tax Act of 1937", Arch. Gee, Psychiat.. Vol. 26. Feb., 1972
 be raised where there is a less stringent defendant is in any way responsible for his 2_. 21 v.s.c. 8oi st seq.
 alternative, was demonstrated in B/co v. condition. Similarly, no alternative course of 22. This observation should not be taken as _ homing (m
 Stets, 109 Ga. 117, 34 S.E. 202 (Gao, 18991. action would have secured the desired result t_evaedicalrneritso_thisdrug[ngener_l, aai_suethlsC_ur_
 Convicted of a violation of a statute prohibit- through a Iess illegal channel. Becau_ of is not called upon to decide.
 ing the transporting of liquor to a church, defendant's tolerance, treatment with o:_ber 24. Testim_ny of Director of the Nstion_i Institute of
 Mental Health, • d_viaie_ o_ the Department of Hetdth,
 defendant appealed, alleging, inter a2ia, drugs has become ineffective, and surgery Education and WeLfare. at H. _ep. _1-[444 on F.L 91 513
 medical necessity. Defendant admitted that offers only a slim possibility of favorable -_'i_st Reporl o_the National Commission on Marijuana sod
 liquor was contained in his carriage, which resnlts coupled with a significant risk of Drug Abuse: Marijuana: A signal of Misuederst&eding '
 was parked in the vicinity of a church while he immediate blindness. Neither the origin of the "_:oad Report of the National Commission on Mlrijusaa
 and [)rug Abuse; Drug Use in America: Problems m
 and his wife attended services, but contended compelling circumstances nor the existence of Perspertive.'
 that this proximity was necessary bet&use the a more acceptable alternative prevents the 25. HEW,"Marijuana and Health. Fifth Annual Rep_wt to
 intoxicant was being used by his wife, for successful a_sertion of the nece_ity defen_e in the U.S. Congress." at 4.7 {1975), This dc,curnen_ "_&_
 this _,seo entered in evidence ss Defendant's Ex_bit #1
 medicinal purposes pursuant to the instruc-
 tions of her physician. The court noted the The question of whether the evil avoided by 2o. HEW. "Marijuana and Health", supra, rmte 25. =t p._
 27. See _or exar_ple the [edmr, Hemp Drug._ Comm_m_
 legal use of liquor in the treatment of such defendant's action is less than the evil of I894. sponsored by the indian and British governmee_s.
 disorders as heart disease and colic but upheld inherent L_ his act is more difficult. It requires the Baroness wooton Report ef 19_8 in _he United Kin_pJ_,
 the conviction, stating: a balancing of the interests of this defendant the LeDain Report of Canada in 1970.
 against those of the government. While 2s. Thirty.nine st&tea have _dopted all or most o_ the ,:
 Uniform Controlled Sub_nces Act. which ce_d _
 _f one should unfortunately be subject _o de_endant's wish to preserve his sight is too classification of marijuana _ = n_r_ot_c: Al_be_m_, Arkeu_a_.
 any of these _s, he must either stay at obviates to necessitate further comment the cc_nnectieut. De,ware. FIor_d_. Ge_r_, Mexylsad, M_
 home, or, if he wishes to provide against _'
 governments interests require a more de- s_chu_eU_. Michigan, Minneso_=. MLt_sippi. Mtat_o_n.
 sudden attacks, take with him _me ether tailed examination. Mom_ea. Nebraska. Nevada, New Jerser. New Mete.
 New York, North Carolina. North Dah_,_, Oklahoma. So_th
 18. C, Kenny, note 3, e_pra. I_. i_vze, sup're, at 203. Care!Lea, So_h Dakota. TeahoUSe, Tex_. ('_h V*rKm_.

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