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Photo of Matt M. McClenahen
Photo of Matt M. McClenahen

Pennsylvania Judge Buys Medical Marijuana Justification Defense

by | Sep 4, 2015 | Marijuana

A Pennsylvania judge recently found a York County man not guilty of possession of marijuana for personal use based upon the defendant’s successful assertion of the justification defense. Judge Thomas H. Kelley VI found 64 year old Chuck Homan not guilty, after hearing credible testimony from a psychiatrist who opined that medical marijuana alleviates symptoms associated with Mr. Homan’s bipolar disorder.

Pennsylvania lags behind the rest of the country, and the rest of the industrialized world for that matter, by failing to legalize medical marijuana, however, the Pennsylvania Crimes Code does provide the defense of justification pursuant to 18 Pa.C.S.A. 502 and 503. The justification defense provides that a defendant is not guilty of a crime if the harm or evil sought to be avoided by his conduct is greater than the harm or evil sought to be prevented by the law defining the offense charged. In other words, if smoking medical marijuana prevents a greater evil than the “evil” of simply possessing and smoking marijuana, then the marijuana smoker should be found not guilty.

Clearly, a person who uses cannabis for medical purposes is preventing a harm or evil, while Prohibition proponents must jump through all kinds of hoops of twisted logic to argue that cannabis presents any harm or evil to society at all. The most common Prohibitionist arguments are variations of the “gateway drug” myth and “well, what about the children?” Those hackneyed arguments do not fly when compared to the needs of a sick person whose symptoms are ameliorated by medical cannabis. Thus, in this light, Judge Kelley had no logical choice but to find Mr. Homan not guilty. Any other decision would have been a perversion of justice, but, of course, the entire War on Drugs since its inception has been marked by one perversion of justice after another. Hopefully, we will see more and more jurists like Judge Kelley do the right thing, as marijuana Prohibition fade away.

You may be wondering why Judge Kelley was deciding the issue of guilt or innocence rather than a jury. The simple answer is that the York County DA’s office was either afraid, embarrassed or both to take this case before a jury. With the majority of Americans overwhelmingly in favor of medical marijuana, and a slight majority now in favor of legal, recreational marijuana, chances are that most jurors would have been sympathetic to Mr. Homan. Thus, the DA’s office made a tactical move to deprive Mr. Homan of a jury trial, when it withdrew the drug paraphernalia charge.

Strangely enough, a person accused of possessing a bowl or bong is entitled to a jury trial in Pennsylvania, while a person accused of possessing less than 30 grams of cannabis is not entitled to a jury trial. In order to be entitled to a jury trial under Pennsylvania law, a defendant must face the possibility of six months of incarceration or more if convicted. The maximum penalty for possessing a small amount of marijuana is 30 days in jail and a $500 fine, yet possessing a bowl, bong, grinder, rolling papers or even an empty dime bag can lead to 12 months in jail and a $2,500 fine. Yes, there is no limit to the Kafkaesque absurdity of the Prohibition laws.

This case should not be taken to mean that a medical marijuana justification defense will always work in Pennsylvania from henceforth. Although Judge Kelley made the only logical decision, we still have some ardent Prohibitionist judges in this Commonwealth, especially in rural areas. Judges with a distorted and archaic “Reefer Madness” view of cannabis might believe that the devil’s weed creates more societal harm than it does good for medical marijuana patients. Fortunately, Prohibitionist judges are dying and retiring faster than they are being replaced, while I would venture to guess that most new judges taking the bench in Pennsylvania have smoked marijuana at some point in their lives.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, who represents victims of marijuana prohibition. He is the only State College lawyer on the NORML Legal Committee.

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