IN THE SUPREME COURT OF FLORIDA
STATE OF FLORIDA,
Petitioner,
v.
Case No. 92-514
GEORGE SOWELL,
Respondent.
ON APPEAL FROM THE DISTRICT COURT OF APPEAL
FIRST DISTRICT OF FLORIDA
AMICUS CURIAE BRIEF OF THE NORML FOUNDATION
ON BEHALF OF RESPONDENT GEORGE SOWELL
GRANT J. SHOSTAK
8015 Forsyth Boulevard
St. Louis, Missouri 63105
Telephone: (314) 725-3200
Missouri Bar No. 45838
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was deposited in the U.S. Mail this ____ day of April, 1998 to the following:
ATTORNEYS FOR PETITIONER
ROBERT A. BUTTERWORTH
Attorney General
PL-01
The Capitol
Tallahassee, Florida
32399-1050
(850) 414-3300
JAMES W. ROGERS
Tallahassee Bureau Chief
Criminal Appeals
GISELLE LYLEN RIVERA
Assistant Attorney General
ATTORNEY FOR RESPONDENT
JOHN F. DANIEL
Daniel & Komarek, Chartered
Post Office Box 2547
Panama City, Florida 32402
(850) 763-6565
Respectfully submitted,
_________________________________
GRANT J. SHOSTAK
8015 Forsyth Boulevard
St. Louis, Missouri 63105
Telephone: (314) 725-3200
Missouri Bar No. 45838
TABLE OF CONTENTS
TABLE OF CONTENTS........................................i
TABLE OF CITATIONS......................................ii
PRELIMINARY STATEMENT....................................1
STATEMENT OF THE CASE AND FACTS..........................1
SUMMARY OF ARGUMENT......................................1
ARGUMENT.................................................2
ISSUE:
WHETHER A COMMON LAW DEFENSE OF MEDICAL NECESSITY REMAINS VIABLE IN LIGHT OF THE 1993 LEGISLATIVE AMENDMENTS TO SECTION 893.03(1)(d) OF THE FLORIDA STATUTES?...........3
CONCLUSION..............................................13
CERTIFICATE OF SERVICE.................................end
TABLE OF CITATIONS
CASES Page
Jenks v. State, 582 So. 2d 676
(Fla. App. 1 Dist. 1991).............................1,4,7
Carlisle v. Game and Fresh Water Fish Commission,
354 So. 2d 362 (Fla. 1977)...............................8STATUTES
§ 2.01 Fla. Stat. (1995).................................7OTHER AUTHORITIES
W.R. LaFave & A.W. Scott, Jr., 1 Substantive Criminal
Law § 5.4 (1986).........................................4
Grinspoon, Lester, Marijuana, the Forbidden Medicine (1993)...................................................5
1996-1997 AAFP Reference Manual - Selected Policies
on Health Issues.........................................6
Council on Scientific Affairs Report #10: Medical Marijuana................................................6
Resolution #9513 ”Access To Therapeutic Marijuana/Cannabis“......................................6
Florida Medical Association Resolution #97-61............7
Grinspoon, Lester, Marijuana Reconsidered, (Second
Edition 1977)............................................7
Schlosser, Eric, ”Reefer Madness,“ The Atlantic
Monthly, Aug. 1994.......................................7
ii
In the Matter of Marijuana Rescheduling Petition, Docket 86-22, Opinion, Recommended Ruling, Finding of Fact, Conclusions of law, and Decision of Administrative Law Judge, September 6, 1988 (Drug Enforcement Agency, Washington, D.C., 1988).................................11
iii
PRELIMINARY STATEMENT
Respondent George Sowell, Appellant in the First District Court and Defendant in the Trial Court, shall be referred to as “Mr. Sowell” or as the “Respondent.” The Petitioner is the State of Florida, and shall be referred to as the “State” or as the “Petitioner.” References to the Record on Appeal and the Trial Transcript shall be referred to as “R” and “T,” respectively, and shall be followed by the appropriate page number(s).
STATEMENT OF THE CASE AND FACTS
The NORML Foundation adopts the Statement of the Case and Facts appearing in Mr. Sowell’s brief.
SUMMARY OF ARGUMENT
The Legislature of the State of Florida has not abolished the defense of medical necessity because it did not clearly and unambiguously repudiate the defense of medical necessity.
ARGUMENT
ISSUE
WHETHER A COMMON LAW DEFENSE OF MEDICAL NECESSITY REMAINS VIABLE IN LIGHT OF THE 1993 LEGISLATIVE AMENDMENTS TO SECTION 893.03(1)(d) OF THE FLORIDA STATUTES? (Restated)
The Florida courts recognize that a common law defense survives statutory enactments and deletions when the legislature does not abolish the common law defense in unambiguous and unequivocal terms. See Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), rev. denied, 589 So. 2d 292 (Fla. 1991); Carlisle v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla. 1977). The Florida legislature did not abolish the medical necessity defense addressed in Jenks when the legislature amended section 893.03(1)(d) Fla. Stat. Consequently, a seriously ill patient like Mr. Sowell who meets all requirements for the medical necessity defense listed in Jenks, may continue to use marijuana therapy to treat his serious health problems related to glaucoma and nausea and weight loss from medications connected to kidney transplant.
Jenks and other significant cases listed in Mr. Sowell’s brief have accepted and allowed necessity as a defense. LaFave and Scott have addressed the necessity defense:
The pressure of natural physical forces sometimes confronts a person in an emergency with a choice of two evils: either he may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and thus produce a greater or equal or lesser amount of harm. For reasons of social policy, if the harm which will result from compliance with the law is greater than that which will result from violation of it, he is by virtue of the defense of necessity justified in violating it.
W.R. LaFave & A.W. Scott, Jr., 1 Substantive Criminal Law §5.4 at 627 (1986).
The defense of medical necessity is a more particular application of the necessity defense. Jenks, at 679. The elements of the medical necessity defense are: 1) Mr. Sowell did not intentionally cause the circumstance which lead to the unlawful act; 2) Mr. Sowell could not accomplish the same objective using a less offensive alternative; and 3) the evil sought to be avoided was more heinous than the unlawful act done to avoid it. Id.
Mr. Sowell has suffered from glaucoma since 1977 and was prescribed medicine which caused kidney failure. (T. 76-77). Naturally, Mr. Sowell did not intentionally cause his glaucoma and his kidney failure.
In 1982, Mr. Sowell received a kidney transplant. (T. 77). He diligently followed doctors’ orders and used all medications prescribed to him for glaucoma and his kidney transplant. (T. 76-77). Nonetheless, the medications failed to mitigate, stabilize, or otherwise effectively treat his glaucoma and increasing loss of sight. The anti-rejection medicine prescribed to Mr. Sowell to prevent his body from rejecting his kidney transplant caused extreme nausea. (T. 76-77). Medications to control the nausea did not provide Mr. Sowell any relief (T. 77-78); indeed, the medications caused him to rapidly sink from 200 pounds to a life-threatening weight of 112 pounds, Mr. Sowell’s Brief on the Merits, at 1. As a last resort to save his eyes and his life, Mr. Sowell decided to test marijuana as medication. (T. 77). He tried to gain access to medical marijuana without success (T. 78-79); consequently, he cultivated his supply. Mr. Sowell consulted with his physicians about his use of marijuana and doctors recommended he continue to smoke marijuana for its medical benefits. (T. 78).
Research studies and rapidly accumulating anecdotal evidence reveal that tens of thousands of seriously ill patients who fail to respond to conventional drug and surgical therapies do respond to marijuana. Moreover, marijuana is less toxic and less costly than conventional medicines.
The best established medical use of smoked marijuana is as an anti-nauseant and is more effective than both conventional prescription anti-nauseants and the synthetic cannabinoid “THC,” marketed as Marinol, Id. Thousands of glaucoma patients could halt the progress of this disease (which is the leading cause of blindness in the United States) by smoking marijuana since marijuana reduces intraocular pressure. Marijuana also reverses dangerous weight loss, as Mr. Sowell demonstrates. AIDS patients suffering from the "wasting syndrome,” a rapid and seemingly irreversible loss of weight benefit from appetite stimulation of smoking marijuana. Clinical and anecdotal evidence also points to the effectiveness of marijuana as a therapeutic agent in the treatment of a variety of spastic conditions such as multiple sclerosis, paraplegia, epilepsy, and quadriplegia. A number of animal studies and a handful of carefully controlled human studies have supported marijuana’s ability to suppress convulsions. A summary of these findings was published by the National Academy of Sciences’ Institute of Medicine in 1982. Research also shows that the following afflictions are alleviated via marijuana treatment: chronic pain due to migraine headaches, phantom limb pain, and fibromyalgia; alleviates depression and anxiety; halts asthma attacks; and reduces symptoms of pruritus. See, Grinspoon, Lester, Marijuana, the Forbidden Medicine (1993).
Many prestigious medical groups acknowledge marijuana’s medical properties including the American Medical Association, American Public Health Association, American Cancer Society and the New England Journal of Medicine. The response among the medical community on the therapeutic value of medical marijuana ranges from advocating medical marijuana research to demanding immediate prescriptive access and the uninhibited right of physicians to discuss and/or recommend marijuana therapy to patients.
The American Academy of Family Physicians "[Supports] the use of marijuana ... under medical supervision and control for specific medical indications." 1996-1997 AAFP Reference Manual - Selected Policies on Health Issues. The American Medical Association (AMA) has stated that it “believes that effective patient care requires the free and unfettered exchange of information on treatment alternatives and that discussion of these alternatives between physicians and patients should not subject either party to criminal sanctions." Council on Scientific Affairs Report #10: Medical Marijuana.
Furthermore, the American Public Health Association (APHA) maintains that:
Understanding that marijuana has an extremely widely acute margin of safety for use under medical supervision ... [and] concluding that greater harm is caused by the legal consequences of its prohibition than possible risks of medicinal use; therefore [the APHA] encourage[s] research of the therapeutic properties of various cannabinoids and combinations of cannabinoids, and ... urges the administration and Congress to move expeditiously to make cannabis available as a legal medicine.
Resolution #9513: "Access to Therapeutic Marijuana/ Cannabis."
Closer to home, the Florida Medical Association has stated that "The FMA urges the state and federal governments and U.S. Public Health Service to open limited access to medical marijuana by reopening the investigational new drug [Compassionate IND] program to new applicants." FMA Resolution #97-61.
Using marijuana is safe and has a low potential for abuse. Dr. Lester Grinspoon, Psychiatry Professor at Harvard Medical School) documented conclusions reached by earlier researchers that moderate use of marijuana causes no physical or psychological harm to the users. Marijuana Reconsidered, (Second Edition 1977). Dr. Grinspoon also concluded that marijuana is not addictive, has never been shown to have caused death of any user, does not produce psychosis, does not lead to the use of other drugs such as heroin and does not lead to criminal or other violent behavior and is not an aphrodisiac. Id.
It is practically impossible to consume a lethal dose of marijuana. An article in the August, 1994 issue of The Atlantic Monthly Magazine noted that:
Although misuse of over the counter medications such as aspirin, acetaminophen and antihistamines each year kills hundreds of Americans, not a single death has ever been attributed directly to smoking or consuming marijuana in the 5,000 years of the plant's recorded use. Marijuana is one of the few therapeutically active substances known to man for which there is no well-defined fatal dose. It has been estimated that a person would have to smoke a hundred pounds of marijuana a minute for fifteen minutes in order to induce a fatal response.
Schlosser, Eric, "Reefer Madness,” The Atlantic Monthly, August, 1994 at 48.
In contrast, the class of legally prescribed drugs cannot claim such an impressive safety record. On Wednesday, April 15, 1998, The Washington Post newspaper reported an article from the Journal of the American Medical Association (JAMA) which was released the same day. According to the newspaper, JAMA announced the conclusion of a comprehensive study which determined that appropriately prescribed and taken legal medications are a leading cause of death in the United States:
More than 2 million Americans become seriously ill every year because of toxic reactions to correctly prescribed medicines taken properly, and 106,000 die from those reactions, a new study concludes. That surprisingly high number makes drug side effects at least the sixth, and perhaps even the fourth, most common cause of death in this country.... If the findings are accurate, then the number of people dying each year from drug side effects may be exceeded only by the numbers of people dying from heart disease, cancer and stroke, and may be greater than the number dying from lung disease, pneumonia or diabetes.
The Washington Post Newspaper, April 15, 1998.
The Drug Enforcement Agency’s Chief Administrative Law Judge Francis Young observed, “Marijuana has been accepted as capable of relieving distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.” Judge Young recommended “that the Administrator transfer marijuana from Schedule I to Schedule II, to make it available as a legal medicine.”
Twenty-five states recognize marijuana’s safety and therapeutic value and have enacted laws to allow marijuana to be used legally under a physician’s supervision. Unfortunately, states are severely limited in their ability to protect patients from federal criminal prosecution or provide medical marijuana to those who need it. Thus, the many thousands of Americans suffering from illnesses and conditions best treated by marijuana cannot procure their medicine because of federal prohibition. Additionally, federal officials have threatened to sanction physicians who recommend or prescribe marijuana in compliance with state laws.
It is critical to separate this public health issue from the “war on drugs.” This is a question of whether seriously ill patients should be allowed to use marijuana without criminal sanction. The common law defense of medical necessity is essential to protect sick and dying people from blindness, life-threatening weight loss, extreme nausea, and many other ailments.
Mr. Sowell’s case presents the Supreme Court of Florida with an opportunity to recognize the common law defense of necessity and protect seriously ill patients who must use marijuana for medical reasons from criminal sanctions. Statutes are to be construed strictly so as to preserve common law principles which have not been clearly and unambiguously repudiated. Carlisle v. Game and Fresh Water Fish Commission, 354 So. 2d 362, 364 (Fla. 1977). In amending section 893.03, Fla. Stat., the legislature did not clearly and unambiguously repudiate the defense of medical necessity. As such, First District Court of Appeal’s ruling that the necessity defense remains viable should be affirmed.
CONCLUSION
Based on the foregoing, The NORML Foundation respectfully requests this Honorable Court to affirm the decision of the District Court of Appeals as reported at Sowell v. State, 23 Fla. L. Weekly D 549 (Fla. 1st DCA February 27, 1998), ___ So. 2d ___, and the order of the trial court be reversed.
Respectfully submitted,
_________________________________
GRANT J. SHOSTAK
8015 Forsyth Boulevard
St. Louis, Missouri 63105
Telephone: (314) 725-3200
Missouri Bar No. 45838
