AUTHOR: Jack Fruth
With the patchwork of cannabis laws throughout America and states changing their cannabis laws every year, there is a general sense of flux. In that grey area some defense practitioners are using cannabis use a defense against crime. For the first time cannabis use may actually limit or even eliminate charges rather than enhance them. A case study can be found in the alleged attempted kidnapping of the Michigan Governor, where cannabis use by members of the group plotting the attack was used in multiple courtrooms this year, with success. These novel defenses are only available since both the legalization of cannabis in many states and the changing public perception on cannabis use.
General History of Cannabis in America
Cannabis has only been outlawed since the 1930s, but the history of cannabis in America is a long and sordid tale involving everything America is well known for: racism, economic exploitation, capitalism, cultural appropriation, and social inequality. The story really starts before the creation of America or the colonies. When Europeans arrived at what is now known as North America, the Native Americans already used wild hemp for clothing, flooring, string, and fishing tackle. William Henry Holmes, Prehistoric Textile Art of Eastern United States 22 (1896).
Historically, the euphoric effects sought recreationally and the medicinal uses are highly intertwined. Manfred Frankhouser, Cannabis and Cannabinoids 38 (2002). The medical use in Western society can be traced back to the writings of Dioscórides in 50A.D., who wrote of cannabis, “Cannabis … being juiced when it is green is good for the pains of the ears.” Id. at 38. However, this paper will only deal with cannabis in a recreational context; medical use of cannabis and hemp as well as perceptions of them will not be discussed here.
Public Perception of Cannabis in America Through the Years
The cannabis-based issues of today really started around 1910 and the end of the Mexican Revolution. PBS, Marijuana Timeline (2014). The end of the revolution brought many people north into America, spreading the use of recreational cannabis. Id. America, never having ever tried to live up to the motto inscribed on Lady Liberty, did not like the influx of immigrants and sought to demonize them in multiple ways, one of which was the criminalization of cannabis. The term ‘marijuana’ was consciously chosen by the American Government to further associate the use of cannabis with Spanish speaking peoples. Press reports and speeches spoke of the ‘Marijuana Menace’ used by Latinos, particularly Mexican men, who would go on to rape white women. Kalea Young-Gibson, Marijuana in the American Political Landscape, The Winthrop McNair Res. Bul. 45, 46 (2020).
Things only got worse, as racism is oft to do, when the economy in America took a sharp downward turn in the 1930s. Id. At that time white Americans were fearful of Mexican immigrants stealing what little work there was to do. PBS, supra. In this environment, cannabis was quickly criminalized, and by 1931, 29 states had outlawed cannabis. Id. The 1930s is also the time when the cult classic film, Reefer Madness, was released. Id. It used pseudoscience to claim that cannabis use made people turn into crazed villains. Young-Gibson, supra, at 46. In the film a character goes from an innocent boy to a murderer by smoking cannabis. Id.
America changed greatly between the 1930s and the 1960s in many different facets, including perception of cannabis and cannabis use. In the 1960s with the hippie movement there was an enhanced interest in the legalization of cannabis. PBS, supra. With the hippie movement being mostly white, the demonization of cannabis changed in some ways but remained in others. Simeon Spencer, Redressing America’s Racist Cannabis Laws, NAACP (2022).
By the end of the 1960s there was a clear stereotype of cannabis and of recreational cannabis users, one that has endured until today. President Nixon’s domestic policy chief, John Ehrlichman, famously said how the War on Drugs started by Nixon was directly put in place to harm the two groups most detrimental to Nixon’s power: Black Americans and hippies. Tom LoBianco, Report: Aide says Nixon’s war on drugs targeted blacks, hippies, CNN (2016) Ehrlichman made it clear that while they could not make being Black or a hippie directly illegal, they could disrupt their groups, meetings, and lives through the War on Drugs, one major prong of which was the criminalization of cannabis. Id. Speaking about it, he famously said, “[w]e could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” Id.
This politically motivated war has lasting effects on how American’s view cannabis and cannabis use. In their 2020 study, The marijuana user in US news media: an examination of visual stereotypes of race, culture, criminality, and normification, Mortensen, Moscowitz, Wan, and Yang said the following about media images of cannabis use in the 2000s before Colorado legalized recreational cannabis:
Pot-culture stereotypes included instances of marijuana users being portrayed as psychotic, sleepy, or lazy, indulgently high, eating ‘munchies,’ images of youth rebellion associated with smoking, stoned appearances, weed being used in combination with other drugs, the symbolic marijuana leaf on clothing, peace signs excess, multiple joints being smoked at once, exaggeratedly-large joints, laziness/unkemptness, illness associated with usage, addiction/preoccupation/overzealousness for weed, and the visualization of smoke-filled festivals. Visual Communication 19(2) 231, 238 (2020).
Notice how ‘lazy’ appears more than once. Some of these are clear holdovers from the 1930s: psychotic, sleepy, lazy, laziness/unkemptness, illness associated with usage, or addiction. These were all thrown at Latinos and cannabis users in the 1930s. But some reflect the new association with the mostly young, white hippie movement: indulgently high, the symbolic marijuana leaf on clothing, excess peace signs, or exaggeratedly-large joints. And some have remained but slightly altered with the changing times: youth rebellion by consuming cannabis in the 1930s was portrayed less like a mistake and more like throwing away one’s life like in Reefer Madness. Young-Gibson, supra, 45. In the 1960s, it could be seen more like teenage drinking: a rebellious phase that one may (or more importantly could) grow out of. Mortensen et al., supra, 240. Also change ‘smoke-filled festivals’ to ‘smoke-filled jazz bars’ and the connection to the 1930s is clear.
It is also important to point out the diametrically opposing terms: a preoccupation/overzealousness for cannabis yet combining cannabis with other drugs, psychotic yet sleepy, and lazy yet rebelling. These dichotomies are still very present today and make up the backbone of how American’s see cannabis in a strange duality.
This characterization of recreational cannabis use can be traced directly to today, where the only difference is the rise of mass incarceration on the back of the War on Drugs, which has exploded the prison population, locked up two generations of Black and Brown people, and has led America to locking up more people than any other country has ever. See Michelle Alexander, The New Jim Crow, (2010). The harmful racial stereotypes of the past are fading, but not disappearing. Mortensen et al., supra, 232. The concept of the ‘thug,’ a dangerous and racially charged idea still exists and is still associated with cannabis, even though generally Americans’ views on cannabis use are softening. Id.
Current State of Cannabis in America
This is per data compiled in December 2022 and with cannabis laws now possibly shifting at both the Federal and State level things could change dramatically. That is also the reason why this section is so brief and surface level.
Cannabis is still illegal federally under the Controlled Substances Act of 1970. Controlled Substances Act, 21 U.S.C. § 801. It is still classified as a schedule one substance, one which has no acceptable medical value and has a high probability of abuse. Id. No modern president has tried to change that, even though it would have been entirely within their power; they can instruct their attorney general and the FDA to de-schedule or reschedule cannabis. Mona Zhang, Pardons, descheduling, and the DEA: Making sense of Biden’s weed actions, Politico (2022). The Surgeon General has the ability to change the CSA scheduling, or congress can change it legislatively. CSA, 21 U.S.C. § 801. Obama’s Surgeon General, James Cole, did not change the scheduling of cannabis, instead he issued what is known as the Cole Memorandum, which said that the federal government would no longer enforce the CSA in terms of cannabis. See James Cole, Guidance Regarding Marijuana Enforcement, (2013).
As long as states followed the mostly basic guidelines laid out in the memorandum (e.g. not suppling cannabis to children or allowing people to drive after consumption of cannabis) then states could sell cannabis without fear of the DEA busting down their doors. Id. This created a legally complex system of state laws since the federal government opened the doors to ‘legal’ cannabis but did not create a national framework, forcing interested states to go it alone.
DISA Global Solutions Inc., which operated the most drug testing in the country from 2020-2022, keep a very good public chart of state cannabis laws which they update frequently. DISA, (2022). While at first a seemingly strange source, given their clear financial incentive to know every state’s stance on cannabis, they are actually one of the best up-to-date sources for a basic overview of every state. DISA Chart, (2022). Compiled as follows:
20 states have fully legalized cannabis, 8 states have legalized medical cannabis and decriminalized cannabis, 9 states have legalized medical cannabis without decriminalizing cannabis, 2 states have not legalized any form of cannabis but have decriminalized it, 7 states allow hemp (including new psychoactive Delta-8 products) but not cannabis, and 4 states have outlawed all types of hemp and cannabis. Id.
This, combined with Biden’s return to the Cole Memorandum, means that cannabis laws are currently still a patchwork across the country. This has led to increased concern about cannabis purchased legally in one state being moved to another state where it is not legal. For example, according to the Illinois Department of Financial and Professional Regulation, in the first ten months of 2020, Illinois sold approximately 1.28 billion dollars of cannabis; of that, about 398 million dollars was sold to people with out-of-state licenses, equaling about 31% of all revenue. IDFPR, Illinois adult use cannabis monthly sales figures, (2022).
Some states do not seem to care about interstate movement of cannabis. Since Kentucky has been for years trying to get some type of regulatory market started with no movement in the legislature, Kentucky Governor Andy Beshear announced that he will be pardoning anyone who can show that they have a legitimate health concern signed off unofficially by a doctor and have purchased cannabis outside of the state and brought it back into Kentucky, getting arrested carrying it into or within the state. Andy Beshear, Executive Action Related To Medical Cannabis, (2022). He is directing people to break federal law, but since the Cole Memorandum is currently in effect, they are not breaking actively enforced federal law.
Some Historical Defenses of Cannabis Possession
Before discussing historical defenses for cannabis possession, we must first define possession. Possession is a deceptively easy sounding charge but is actually quite difficult to define. Robert Mikos, Marijuana Law, Policy, and Authority, 35 (2017). The government must only prove that one possessed it, not what they were planning on doing with it, which is why it is referred to as simple possession. Id. at 36. In general, simple possession has three elements which must be proven to find someone guilty of cannabis possession: 1) Defendant was aware of the presence of cannabis and its nature, 2) Defendant had the ability and desire to control the cannabis, and 3) the substance was actually cannabis. Id. Some states’ courts have interpreted possession to be a strict liability offense. Id. at 84. In the possession context that means that the government has no need to prove knowledge or intent to possess nor knowledge as to the nature of the drug. See City of Kennewick v. Day, 11 P.3d 304 (2000).
There are many defenses that are relevant to all manner of crimes that were employed to fight simple possession of cannabis charges, but three defenses became prominent that are specific to this crime: necessity, innocent possession, and unwitting possession. The first successful medical necessity case occurred in the District of Columbia in 1976, United States v. Randall. Mikos, supra, 77. Necessity is a long-standing defense that covers a wide range of crimes. Id. In simple terms the defense of necessity is one where the actor is not guided by their own free will. US v Randall, D.C. Crim. No. 65923-75 (1976). The act is voluntary in the sense that the actor consciously decides to do it, but the decision is dictated by the absence of an acceptable alternative due to some type of present condition. Id.
There are three accepted limitations to the defense, if any are present the defense does not apply: 1) Defendant is responsible for the condition, 2) a different less offensive action could have alleviated the condition, and 3) the evil avoided by committing the crime is less heinous than the crime committed. Id. Randall was able to prove that his cannabis use was necessary in preventing him from becoming blind from glaucoma after all FDA approved medications had failed him. Id. Clearly this can only be used for medical cannabis use, and so is inherently limited.
Innocent possession involves a person meeting all of the elements of possession, but whom the charge seems grossly unjust. Mikos, supra, 83. Mikos gives the hypothetical of a principal who takes cannabis out of a student’s locker and puts it in their office while they call the police. Id. They have control over the cannabis and know of its nature. Id. No state would charge someone in that situation with those facts for possession, but some courts have explicitly recognized the defense. Id. Kentucky, for example, has in their laws that the possession must be “knowing and unlawful” for this exact reason since, for example, a person picking up a narcotic for their ill family member is knowledgeable but is not unlawful in their possession. Id. Some states, however, allow it implicitly but do not instruct the jury directly on it. Id.
The final common classic defense for cannabis possession is unwitting possession, which is only raised in the ever-dwindling number of states that have interpreted possession to be a strict liability offense. Id. at 84. It is similar to innocent possession; the defendant is claiming that they did not know either that the substance was cannabis or that they did not know that they possessed it. See City of Kennewick, 11 P.3d. It is considered a novel defense since the elements of possession are different in these jurisdictions. Mikos, supra, 84.
New Cannabis Defenses Post-State Legalization: Scent and Probable Cause
In 2016, with more states starting to legalize some form of cannabis, police started coming up to a big problem, they could no longer be sure that a person had broken the law by smelling like cannabis. This means that there became a real question as to whether scent of cannabis alone was still enough for probable cause, the legal standard necessary to search someone. Because of police departments’ reliance on cannabis for all types of stopping of people, it turned a niche issue into a major problem, and as such courts got involved.
First was Colorado, where recreational cannabis started in 2012, where it took a few years for People v. Zuniga to go to the Supreme Court. The issue was of a police dog that detects four narcotics: heroin, cocaine, methamphetamine, and cannabis, but the dog cannot distinguish how much of the thing it is smelling, just its presence. People v. Zuniga , 2016 CO 52, 4 (2016). This means that since 2012 it no longer only detects illegal items, but also potentially entirely legal items like a small amount of legally purchased cannabis. Id. at 21.
The district court found that a search based on that evidence was unconstitutional under the 4th Amendment, but The Colorado Supreme Court ruled that the presence of a possible legal item being found does not destroy the use of the evidence or cause it to be thrown out; it merely adds a layer of ambiguity to the evidence’s probative value. Id. at 20. The result is that scent of cannabis can still be used as probable cause, it just carries less weight and so cannot be used alone. Id.
Other states where forms of cannabis are legal have similar set-ups. After Arizona legalized medical cannabis in 2010, a similar case was decided right after in 2016, State v. Sisco. The Arizona Supreme Court ruled that the scent of cannabis is enough to get a warrant, unless there is some reason to believe that it may be legal. See State v. Sisco, 239 Ariz. 532 (2016). At the time this reason could have been someone with a medical cannabis prescription connected to the item or building for which police want a warrant. Id. at 538-39.
Scent of cannabis has naturally changed in the legal analysis since the legalization of some forms of cannabis, but in the past the consumption of cannabis could not really be used as a defense of an alleged crime. This, however, is also starting to change. Since driving under the influence is still illegal everywhere, and must be under the Cole Memorandum, scent is still used in determining probable cause for police, but cannabis use itself is becoming a novel, experimental defense in a different area of law, conspiracy.
New Cannabis Use Defense for Non-Possession Crime: Conspiracy/Attempt
With changing attitudes about cannabis use and a lessening of cannabis restrictions around the country, defenses are now starting to utilize cannabis use to actually lessen criminal liability. This is only possible because of both the changing perception and the changing laws, and a good case study is the alleged attempted kidnapping of Michigan Governor Gretchen Whitmer.
In 2020 several men, mostly from Michigan, plotted to kidnap Gretchen Whitmer, the Governor of Michigan, mainly due to political differences and her COVID policies. Ken Kolker, Timeline: The plot to kidnap Gov. Gretchen Whitmer, WoodTV (2022). They called themselves the Wolverine Watchmen, and they had many different, often incompatible, goals including: kidnapping the Governor, breaking away from America and forming their own country, executing the Governor, putting the Governor on trial that they conducted, helping Trump win re-election, and ending the COVID restrictions put in place by the Governor. Criminal Complaint at 3-4, United States v Fox, 2022 US Dist LEXIS 147752 (2022) (No. 1:20-mj-416). No matter the ultimate goal, all of their plans revolved around her kidnapping, and so they plotted to grab her at her summer home; importantly, the plan involved blowing up a bridge near her home. Kolker, supra.
The FBI had police informants involved with the group almost immediately, given that they openly plotted to kidnap the Governor of Michigan on Facebook. Complaint, supra at 4. Police eventually infiltrated the group to such an extent that at one point they not only had an undercover officer in each car but had two in one of them. Id. The FBI set up a fake bomb seller and asked the members to put together four thousand dollars to buy the bomb. Id. at 5. This would likely classify as a concrete step necessary for the FBI to arrest them on attempt of kidnapping charges. With attempt charges, the prosecution must prove that a concrete step was taken in furtherance of the crime; the step must be substantial in the process of completing the alleged crime. Congressional Research Service, Attempt: An Overview of Federal Criminal Law, 4-5 (2020).
Fourteen men were arrested and charged, six with federal charges. As of December 2022, the results of the Federal allegations are as follows: 2 plead guilty to multiple federal crimes and cooperated with authorities, 2 had a hung jury and we retried leading ultimately to a guilty verdict on several counts, and 2 were found not guilty. Of the State charges 3 were found guilty and 5 have yet to be tried. The two found not guilty were tried together, and their defense lawyers tried several different defenses.
These types of conspiracy cases have historically led to some interesting defenses, including the classic, “My client is an idiot” defense, where defense council argues that the Defendant is incapable of carrying out the crime. Barrie Hardymon, Ladies And Gentlemen Of The Jury… My Client Is An Idiot, NPR (2010). Cannabis use can now fall into that category. Defendants in their trials were called by their own lawyers: “big talkers,” “high all the time,” and “a stoner pirate kind-of whack nut.” Ed White, Marijuana smoking hangs over Whitmer kidnap plot trial, AP (2022). Clearly defense council was trying to paint them as too lazy and stupid to actually try to go through with their plan, and they used their cannabis use to highlight that.
At every opportunity defense council asked witnesses to comment on the cannabis use. Undercover police said that the defendants “probably smoked too much pot” and privately called them “morons.” John Agar, Defendants in Gov. Whitmer kidnapping trial called pot-smoking morons, Advanced Local Media (2022). Defense council for one of the men said that his client was “frankly high on marijuana all the time.” White, supra. An undercover officer was specifically asked in one trial, “[Defendant] routinely smoked marijuana in your presence, true? At almost every meeting you were at, correct?” Id.
Since the FBI was so heavily involved, defense council made an argument for entrapment. Michael Tarm, EXPLAINER: Jury Mulls Entrapment in Whitmer kidnap plot case, AP (2022). Undercover informants at one point made up a quarter of the group, and the undercover informants pushed up the timeline. Id. There is an argument to be made that the militia members may not have progressed to the point of going forward with the plan had the FBI not pushed them to take these concrete steps, and defense council made those arguments. Id.
It is impossible to say whether or not the use of cannabis defense worked, but we do know that those two men were acquitted of the charges against them, and two more had a hung jury (they were later found guilty). White, supra. Since the jury has not spoken publicly, no one knows what arguments led to finding two of the alleged kidnappers not guilty and a hung jury on two more, but it could have been the cannabis use argument.
Connection Between Dualities in Whitmer Kidnapping Case
Defense lawyers are trained to try many different ideas in the hopes that one will work and convince at least one jury member that there is reasonable doubt. Some have been dismissive of this argument. Henry Schlag, a Detroit area lawyer, said of the defense, “I don’t think it’s a really strong defense, but sometimes you’re looking for a juror as a holdout, something to rest their position on. Throw it out. Maybe the fish will bite.” Id.
These lawyers must have felt like cannabis use falls more onto the lazy, unkempt, and peace sign connotation, as opposed to the idea that cannabis use makes one an addict, psychotic, and a criminal. The fact that lawyers are even trying this type of defense in such high-profile cases is informative on the general trend of cannabis use still being seen as problematic and harmful, but no longer criminal in and of itself.
Even if the jury found the entrapment defense the most credible, perceptions of cannabis use can help establish that theory of the case as well. Defense council in their case spent time establishing that these men were unintelligent, ‘wannabe’ army guys who could not and would not have done this without the pressure of the police. Tarm, supra. The classic perceptions of cannabis smokers as lazy and sleepy help in this regard.
In December 2022, Americans still live in an uncertain duality when it comes to cannabis consumption, both legally and public perception. There are still the holdovers from 100 years ago: cannabis makes you lazy yet it also makes you a crazed criminal, cannabis use is unhealthy and unsafe yet it has been prescribed for hundreds of years. But now there are new seemingly hypocritic dualities: it can be prescribed by a doctor yet by definition has no acceptable medical uses, it is illegal federally yet some states are openly selling it and making billions in revenue.
These contradictions help make up the public perception of cannabis: one that is all over the place. Some continue to parrot ideas from the 1930s: it is a dangerous, evil drug that makes kids turn to a life of laziness and crime, when it does not outright cause psychosis! Tyler Fordham, Can Weed Cause Psychosis? (Spoiler: Yes It Can), AmethystRecovery (2021). And there are some that have turned their backs on all science in any direction: it is entirely safe, smoking cannabis does not cause cancer, in fact, it cures cancer! Sarah Brooks, How Cannabis Oil Works to Cure Cancer, Onco’Zine (2019).
With the political climate under current president, Joe Biden, nothing is likely going to change at the national level anytime soon. The Senate had hoped to pass some form of cannabis legalization bill, but with an incoming Republican led house and a time of unparalleled partisanship that bill has little chance of becoming law. Not to mention there is real question of Biden even signing it. This is a president who famously told interns to be honest about legal cannabis use before terminating aids who admitted to entirely legal cannabis use. Chris Roberts,
Biden White House Admits Firing Staffers For Marijuana, But Still Employs Some Past Pot Users, Forbes (2021). Biden did ask his attorney general to look into the scheduling of cannabis in November of 2022, but he did not signal that anything would certainly be changing. Zhang, supra. But in the meantime, with the patchwork of cannabis laws with no end in sight, the novel defenses being employed by defense lawyers across the country are fascinating and, more importantly, possibly working.