The following discussion of the medical necessity defense is intended for general information purposes only. It does not constitute legal advice for any specific case. The applicable law of necessity varies from jurisdiction to jurisdiction. Persons with specific cases or questions are advised to seek the advice of experienced attorneys and physicians.

Although an increasing number of states are enacting statutes permitting seriously ill people to use marijuana legally for medicinal purposes, the majority of states still provide no legitimate access to marijuana for medical use. In states where affirmative rights to use marijuana for medicinal purposes have not been enacted, individuals may still be prosecuted for growing, possessing or using marijuana for treatment of their medical condition. When these prosecutions occur, raising the "medical necessity defense" may provide a means of avoiding a criminal conviction.

The medical necessity defense is usually grounded in either a state's common law or general necessity defense statute. Regardless of its origin, the basis of the necessity defense is that society is sometimes willing to excuse or even justify conduct that would otherwise be illegal if that conduct was done to avoid an even worse or greater evil. This defense theory reflects society's understanding that external forces beyond a person's control sometimes place that person in an emergency situation where he or she must choose between the harm or "evil" of breaking the criminal code or complying with the code and allowing an even greater harm or "evil" to occur. In these situations, if a person violates the law in order to avoid the greater harm, the defense of necessity excuses the person from being guilty of what would otherwise be a crime.

The elements of a necessity defense vary from state-to-state, and from the federal standard. Generally, the defense must show 1) that the defendant did not intentionally bring about the circumstance which caused the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive (i.e. "more legal") alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. Under federal law, a defendant must establish the existence of four elements to be entitled to a necessity defense: 1) that he was faced with a choice of evils and chose the lesser evil; 2) that he acted to prevent imminent harm; 3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 4) that there were no other legal alternatives to violating the law. See , e.g., United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989).

Necessity defenses are sometimes labeled "competing harms". Under such circumstances, the evil brought about from violating the law is deemed to be less than the evil which would have resulted from literal compliance with the law. For example, suppose Tom sees a little girl drowning in a backyard pool as he walks down his neighborhood sidewalk. Suppose further that Tom sees a sign between himself and the little girl which says, "No Trespassing. Violators Will Be Prosecuted." Tom is now confronted with a choice. He can comply with the law and the little girl will drown, or he can break the law of trespass and avoid the greater evil of a little girl senselessly dying. If Tom were to be charged with trespass after choosing to save the little girl, he could raise the defense of necessity in order to avoid what would otherwise be a crime because the harm which Tom sought to avoid (the little girl's death) was greater than the harm resulting from violating the law against trespassing.

In the medical necessity context, courts must balance the interest of an individual in his or her health and welfare against the government's interest in upholding the criminal law. To successfully present the defense in this context, the defendant will typically be required to convince the court that his/her health is threatened to the degree that engaging in otherwise criminal activity is warranted. Although the specific requirements vary from state to state, this usually requires a person using marijuana for medicinal purposes to show that he/she acted under the reasonable belief that the marijuana use was necessary to avoid serious medical harm. Medical testimony and evidence from a treating physician or medical expert is nearly always required to support the claim. Without medical testimony, a court is likely to refuse a jury instruction on the medical necessity defense.

The harm sought to be avoided must be more serious or greater than the harm or "evil" of breaking the applicable marijuana law. This aspect of the defense requires the judge or jury to evaluate the severity of the harm that would result without marijuana use as compared to the harm of violating the marijuana law. Although it is difficult to anticipate what judges or juries will decide in a given case, the more severe the personal harm an individual is seeking to avoid, the greater the chance a judge or jury will find the individual's efforts to avoid it were appropriate. Most importantly, the medical necessity defense affords individuals the opportunity to present evidence of marijuana's ability to minimize the effects of their disease or illness. For example, in Washington v. Diana, 604 P.2d 1312, 1317 (WA 1979) "[t]he defendant, a victim of multiple sclerosis, testified as to his belief that marijuana was a 'primary sedative' for the 'frustrations' caused by multiple sclerosis. While no argument was presented to the trial court concerning a medical necessity defense, the appellate court, in the 'interests of justice,' remanded the matter so that the issue could be fully determined. The court noted that a necessity defense is generally available only when the physical forces of nature cause the accused to take unlawful action to avoid harm which social policy deems greater than that which results from a violation of the law. It determined nonetheless that the defendant should be afforded the opportunity to demonstrate the potential beneficial effects of marijuana on the symptoms of multiple sclerosis."

Many jurisdictions also require that there be no other available options for the individual to avoid the harm. For example, in Idaho, the defense is not applicable where the compelling circumstances have been brought about by the accused or where a legal alternative is available to the accused. In other words, if a viable, legal alternative treatment to marijuana exists, the individual cannot claim necessity as a defense. This issue is frequently the subject of pretrial motions and hearings, and may be hotly contested at trial. The prosecution and the defense frequently disagree about whether a legal alternative exists. Medical experts are used by both sides and the question is left for the judge or jury to decide.

Although the current law of necessity in some states technically limits marijuana's medicinal use to situations where individuals have no other alternative, the law is usually applied in a more compassionate manner. NORML believes that marijuana laws should reflect the inherent rights of individuals to choose their own course of treatment as is reflected in other legal contexts. The right of an individual to preserve his/her health came into play in the abortion context. For example, the abortion cases of Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973) stress the fundamental nature of an individual's right to preserve and control their own bodies. These decisions allow a woman to terminate a pregnancy at any stage in which the mother's own existence is threatened. Justification for using marijuana is even more understandable because it is a "victimless crime". That is, no one is harmed by an individual's use of marijuana to reduce pain, intraocular pressure, nausea or muscle spasms. In addition, individuals growing marijuana for their own personal consumption do not contribute to the illegal trafficking of the drug and therefore are not injuring innocent members of the public.

NORML believes these cases support the right of an individual to choose their own medicine. Proposition 215, the current law in California, is the most widely publicized example. NORML encourages other states to take similar steps, but where states fail to do so, the medical necessity defense often times provides individuals with hope for avoiding criminal liability for possessing the medicine they desperately need. However, the necessity defense to possession or use of marijuana for medicine may not be available in every state. See., e.g. State of Minnesota v. Corrigan, 2001 Minn. App. 889 (2001); Spillars v. State, 245 S.E. 2d 54 (Ga. App. 1978); State v. Tate, 505 A.2d 941 (N.J. 1986). Even where the defense does apply, it is subject to change because medical research continues to find new medicinal uses for marijuana. As is true with any medication or course of treatment, whether marijuana is an appropriate means of treatment is a decision which should be thoughtfully made with the consultation of a physician.

The requirement that no legal alternative be available may mean that the defense is no longer available in states where marijuana can be legally obtained for medical purposes, or if a physician is willing to prescribe Marinol. If marijuana is needed, individuals must comply with the appropriate statute to possess the substance. Individuals who illegally obtain marijuana will have considerable difficulty showing that illegal possession is necessary when a legal method is readily available. Another requirement for the defense is that the state legislature has not precluded the necessity defense's applicability to a given set of circumstances. As the number of medical marijuana cases increases, the possibility exists that a state legislature could amend their necessity defense statute to exclude the medical use or medical marijuana use defense. NORML intends to vigorously discourage any such attempt and to continue advocating the implementation of procedures for prospective access to marijuana for medicinal purposes.

The NORML Foundation is committed to educating both the legal community and the public about this important issue. Until every jurisdiction allows patients access to the medicinal marijuana they need, NORML is committed to assisting and promoting the medical necessity defense for those patients charged with a criminal offense. The NORML Foundation's Legal Director is available to answer general questions about the defense and to assist legal counsel in various aspects of preparing the defense, including briefing, legal research, and locating expert witnesses. Attorneys and the public are encouraged to call 202-483-8751 for further information.