New York: the new version of the medical cannabis bill is worse than no bill

On June 14 the sponsors of the medical cannabis bill in the New York State Assembly and Senate introduced a new version of the bill.

This bill is worse than no bill. It would be best if this bill does not pass. Unfortunately, Jeff Klein, the leader of the independent bloc of Senate Democrats who are in a power-sharing arrangement with the Republicans, is now a co-sponsor of the bill. I expect Klein’s imprimatur may push this version of the bill to the full Senate for a vote.

This bill is a disaster and will set back reform in New York for years. All reform advocates should pray that the bill dies so that the way will be clear in the next legislative session to push for general legalization.

Arbitrary limit of ten manufacturers

Section 3366 now sets an arbitrary cap of ten cannabis growers for the first two years.  Section 3364(6) requires that all cultivation take place in an enclosed facility, e.g. a greenhouse. So now there is an arbitrary limit of ten manufacturers for the entire state? The huge consumer population of City of New York alone will need ten manufacturers, unless all ten are immense factories that can operate indoors. The practical effect will mean that the only applicants will be giant operations requiring immense capital and foreclosing small entrepreneurs. This provision and the union labor requirement described below lead me to conclude that the goal of the new bill is to put control of the cannabis industry into the hands of big corporate interests.

There is no basis for the ten-grower limitation. It will have the same function as the system in New Jersey, which, although not the same form of obstacle, is to create a system that will inhibit interest in entering the market and will be inherently inadequate to meet the needs of New Yorkers.

The original version of the bill delegated to the Commissioner of Health the authority to deny an application for licensure on the grounds that licensure is not within the public interest. That should have been sufficient.

Requiring that all Registered Organizations enter into collective bargaining agreements with unions

The bill now requires at Section 3365(1)(A)(V) that a Registered Organization demonstrate that it has entered into a “labor peace agreement” and states that such agreement is a requirement for maintaining a license to operate. Section 3365(5) provides that the Commissioner may deny renewal of a license if s/he finds that the Organization has violated or terminated the “labor peace agreement.” Subparagraph (6) provides that the Commissioner shall revoke a license upon finding that a Registered Organization has violated or terminated a “labor peace agreement.”

The pretext for requiring a “labor peace agreement” is a never-seen-before legislative finding that the state has a significant interest in ensuring that no labor-management conflict impairs the financial viability of a Registered Organization. Section 3360(14) defines a “labor peace agreement” as an agreement between an “entity” and a labor organization that prevents the picketing, work stoppages, boycotts and other economic interference with the Registered Organization’s business.

Although this device is articulated as a mechanism for protecting a Registered Organization, it is nothing of the sort. Examination of Section 3365(1)(A)(V) demonstrates what it really is – a requirement that all Registered Organizations of whatever size use union labor. That section states that the applicant for a license demonstrated that it has executed a “labor peace agreement with a bona-fide labor organization that is actively engaged in representing or attempting to represent the applicant’s employees.” In other words, Registered Organizations must use employees who are represented by a union.

I have been informed that the requirement to enter into a labor peace agreement applies only if the Registered Organization seeks to use union labor. I don’t read it that way. At a minimum, it is highly ambiguous and will be a litigation factory.

Section 3364(1)(A)(V) provides in full:

1. APPLICATION FOR INITIAL REGISTRATION. (A) AN APPLICANT FOR REGISTRATION AS A REGISTERED ORGANIZATION UNDER SECTION THIRTY-THREE HUNDRED SIXTY-FOUR OF THIS TITLE SHALL FURNISH TO THE DEPARTMENT A DESCRIPTION OF THE ACTIVITIES IN WHICH IT INTENDS TO ENGAGE AS A REGISTERED ORGANIZATION AND ANY INFORMATION THE DEPARTMENT SHALL REASONABLY REQUIRE AND EVIDENCE THAT THE APPLICANT:
(V) HAS ENTERED INTO A LABOR PEACE AGREEMENT WITH A BONA-FIDE LABOR
ORGANIZATION THAT IS ACTIVELY ENGAGED IN REPRESENTING OR ATTEMPTING TO
REPRESENT THE APPLICANT’S EMPLOYEES. THE MAINTENANCE OF SUCH A LABOR PEACE AGREEMENT SHALL BE AN ONGOING MATERIAL CONDITION OF CERTIFICATION.

What does that look like to you? When I see that a labor peace agreement is a condition to licensure, I naturally conclude that execution of a collective bargaining agreement is also a condition to licensure.

If so, this requirement can be understood as a ploy to ensure that only large corporations can operate as Registered Organizations, naked and reprehensible protectionism.

Elimination of an affirmative defense for any patient or designated caregiver without a card

Perhaps the most vile and reprehensible aspect of the new bill is the deletion of the text that previously appeared at Section 3369(2). That section provided that a patient or designated caregiver who does not have a card from the Department of Health can still present the affirmative defense of medical use “to any prosecution for violation of state law for actions and conduct that is otherwise consistent with the certified medical use of marihuana as defined under this title.”

The essential function of a medical cannabis law is to codify in a statute a “medical necessity defense” to a criminal prosecution for a cannabis crime. In other words, if someone is prosecuted for growing cannabis, the defendant can argue that s/he should be exempt from criminal liability because he was doing what he was doing in order to protect his health (or, possibly, as described in footnote 1, the health of others).

The “medical necessity defense” for cannabis first emerged in 1976 in the decision of US v. Randall. Jurisdictions around the United States followed Randall, recognizing the medical benefits of cannabis for a variety of medical conditions, some of them life-threatening. (Analysis I wrote on the subject of the medical necessity defense for a memorandum of law appears at footnote [1]) The decisions referenced at the end of this post were judge-made law, in which a court decided to exempt the defendant from criminal liability upon a showing of medical necessity.

 
The essence of the 1996 voter initiative in California that created the first medical cannabis statute was a statutory medical necessity defense to prosecution. The New York bill, in a blinding display of foolishness, now will eliminate the medical necessity defense for any patient or caregiver who has not yet received a card. Why? Why limit protections for criminal prosecution? Leaving in place the opportunity to argue a medical necessity defense to a criminal court will allow patients and caregivers who have not applied for a card, have not yet received a card or have been denied a card due to some administrative error/misjudgment/bias (as if those never happen) to show facts sufficient to bring them within the scope of the affirmative defense. No one will lose if defendants are permitted to present an affirmative defenses of medical necessity – even when they are not licensed. Licensure under the statute should give an additional level of protection – it should not provide the basis for restricting use of an affirmation defense to criminal prosecution. Presumably in a case construing the statute for the first time the prosecution will demonstrate that the legislature considered leaving the medical necessity defense available to a defendant in the court’s discretion upon the proper showing; deletion of that provision from the final bill can be construed that the legislature intended to eliminate the defense unless the defendant has a card. It is a foolish, pointless retraction of protection to patients and caregivers in a law that is supposed to protect them.
 
Additional comments
 
Presumably the opponents of the bill recognize that there is no legitimate basis for their opposition, so instead of preventing the bill from proceeding, they are forcing revisions that will make the legislation unworkable. They will be able to claim that they have been reasonable and cooperated in enactment of a medical cannabis law. Since the bill provides that the Department of Health must report to the legislature and governor on how the program is functioning after two years, the opponents of cannabis law reform can deflect any criticism of the law by stating that everyone should wait for the Commissioner’s report.
I assume also that part of the motivation is to pass a bad medical cannabis bill to dissuade Senator Liz Krueger from introducing her general legalization bill in the next legislative session (even though she is a sponsor of the current bill). With a bad bill in place, it will require an expenditure of political capital to correct its dysfunction. That expenditure of political capital will deflate momentum to pass a general legalization bill.
 
Conclusion
 
The moral of this story is that concessions evoke aggression. In yet another attempt to appease opponents of cannabis law liberalization, the proponents of the bill have yet again given ground, as they did when they eliminated the ability of patients and caregivers to cultivate cannabis themselves. Each concession only demonstrates weakness and encourages the opponents to raise the bar, demanding more concessions.
 
The appropriate argument is that cannabis prohibition is stupid and has always been stupid. The proponents of prohibition seek to justify their past support for an extremely bad policy by maintaining the farce that cannabis is an extremely dangerous plant from which the public must be protected. The correct response is not to accept the validity of that position – by acceding to unnecessarily restrictive legislation – but to state openly that cannabis prohibition is and always has been a very, very bad policy that should be abolished as soon as possible. Perhaps immediate action by the prohibitionists to correct their mistakes will count towards leniency when the Truth and Reconciliation Commission on Cannabis Prohibition is appointed.
 
I fervently hope that the revised bill does not pass so that the way is clear for New Yorkers to move forward to general adult legalization in the next legislative session.
 

[1]  In U.S. v. Randall, 104 Daily Wash. L. Rep. 2249 (Super. Ct. D.C. Nov. 24, 1976), the defendant, Robert Randall, argued that his possession of marijuana was medically necessary because he was using it successfully to save his vision in the absence of any other effective treatment. Judge Washington of the District of Columbia Superior Court engaged in an extended examination of the law of medical necessity as a defense to criminal prosecution and the history of marijuana prohibition before acquitting Randall.
 
 
Following Randall,  in State v Diana, 24 Wn. App. 908, 604 P.2d 1312 (Ct Appeals Div. Three 1979), among other decisions, a Washington state appellate court remanded the case to the trial court in order to give the defendant, a multiple sclerosis patient who argued that his possession of cannabis was medically necessary to treat his condition, the opportunity to demonstrate the alleged benefit of cannabis on his symptoms. In Jenks v Florida, 582 So. 2d 676 (Ct Appeal of Florida, First District 1991), the Florida judiciary recognized medical necessity as a defense to the charge of cannabis possession. In that case, the defendants were a couple suffering from AIDS after the husband, a hemophiliac, contracted the disease due to a blood transfusion and passed it to his wife. They began growing cannabis and using it to tolerate their AIDS medicines, continue to eat, maintain their health and stay out of the hospital. They were arrested and charged with cultivating cannabis. They proceeded to a bench trial focusing on a medical necessity defense. The trial judge rejected their defense. The appellate court reversed and directed entry of a judgment of acquittal, having credited the defendants’ evidence that no other drug or treatment was available that would effectively or diminish their nausea and that their lives were in danger if they could not control their nausea.
 
In State v. Thompson, 2000 WL 758767 (Neb.App.,2000), a Nebraska appellate court implicitly approved a medical necessity defense not just for the patient for even a person attempting to provide cannabis to patients for medical use.
 
           Randall is the seminal decision applying the defense of medical necessity to criminal prosecution for cannabis possession. Its reasoning is highly instructive when state legislators propose to restrict the ability of physicians to certify patients and and to prevent patients from providing themselves with  cannabis:

Necessity has also been seen in the law as a form of excuse. Under this view, criminal responsibility arises upon the performance of every willed action, regardless of the underlying reason of the underlying reason for the choice. The actor may be excused from punishment for public policy reasons, but not because he was without blame. Thus, although guilt is established punishment is not required because of extenuating circumstances which mitigate the seriousness of the offense. Under this theory, the necessity defense must be applied on a case by case basis rather than by reason of a general rule.



 

 

4 thoughts on “New York: the new version of the medical cannabis bill is worse than no bill”

  1. I don't think this would gut the medical necessity defense (which is already pretty beleagured post-Raich, at least in federal court).

    Have you read about cases like this in NJ:
    “Mr. Stevens said he has already witnessed a number of what he describes as success stories. “On the first day [Greenleaf was in operation] a guy came in. He was on 300 mg of morphine a day. He was like a zombie. He would take his dose of morphine and he would lie on the couch and his wife would go to work. She would come back and he was still in the same position. One and a half months later, he’s vibrant and full of life. His life is back.”
    http://www.pharmacypracticenews.com/ViewArticle.aspx?d=Policy&d_id=51&i=May+2013&i_id=957&a_id=23216

    I think we can address these market control issues moving fwd. Even if there was just one producer, that would be that many more patients who could be helped.

    If it were to pass, I believe it would make Krueger's bill even more palatable.

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  2. Yes one producer would help people and yes the opening of the one dispensary in NJ presumably is helping individuals, even though all news stories are to the effect that the waiting list is interminable.

    The medical necessity defense is still valid in state prosecutions as far as I have heard. I am not aware of anything in Raich that changes the viability of that affirmative defense.

    I disagree re Krueger's bill. I believe that the effect of passing a bad bill will be (a) the opponents will say “you have your bill what more do you want?” and those who went along with it will say “you're not finished complaining?” and (b) the opponents will seize on complications in implementing the bill as proof that even a medical cannabis law cannot be implemented safely and effectively.
    I doubt that the legislature will take up a general legalization bill having just set in motion a multi-year experiment in legalizing cannabis for medical use.

    The bigger point is that it is time to get more direct with the opposition. Conciliation is not working: even if the bill passes, it is now a bad bill that will take a lot of work before it can be made useful. The opposition should not be allowed to control the process going forward. Senator Hannon and his ilk should have a regular stream of unannounced visitors at their offices.

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  3. Since I published the post this morning, a colleague disclosed to me the position of one of the people working on passing the bill: the “labor peace agreement” does not mandate employing union members. Instead, IF the registered organization uses union labor THEN the collective bargaining agreement must include a labor peace provision.

    However, (a) the bill does not clearly read like that, requiring litigation to clarify it, and (b) my reading indicates that a labor peace provision is actually favorable to the union, not management, because unions tend to exact favorable provisions in exchange. (I was informed that labor unions in Long Island influenced this addition.) If so, then the function of this provision will be to create a disincentive to those who wish to be registered organizations.

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  4. I'd like to suggest a new rule for legislators, i.e., if you're not familiar with the name and history of Harry J. Anslinger you don't get a place at the table. Even a superficial knowledge of ol' Harry would suggest that there's an awareness of the brutal, ignorant, racist and ideological nonsense behind prohibition policy.

    Good and smart legislation puts patients first. That means HOME CULTIVATION and it especially means NOT limiting the amount of production facilities.

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