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Carl Olsen's Marijuana Archive

April 1996

Dear candidate:

Historical Background
Medical Necessity

Over the past 20 years, thirty-seven states have passed legislation recognizing marijuana's therapeutic value. Iowa enacted a law allowing doctors to prescribe marijuana in 1979. See Iowa Code 124.204(4)(m), 124.204(7) and 124.206(7)(a). To understand the history of this legislation and the need to amend current state law, a brief review of some national court decisions is enlightening.

In 1976, a glaucoma patient by the name of Bob Randall was brought to trial for growing marijuana plants on the balcony of his apartment in Washington, D.C. The court dismissed the charges, ruling that Randall's use of marijuana was a "medical necessity." Federal agencies began providing him with marijuana, and Randall became the first American to receive marijuana for the treatment of a medical disorder.

In 1981, a multiple sclerosis patient by the name of Sam Diana was convicted for possessing marijuana in the state of Washington. The Washington Court of Appeals overturned the verdict and returned the case to the lower court for retrial. The Appeals Court ruled that "medical necessity" was a valid defense. On retrial, the Washington court concluded that Diana was "not guilty by reason of medical necessity."

In 1989, a glaucoma patient by the name of Elvy Musikka was brought to trial for cultivation of marijuana plants. The court found Musikka not guilty, ruling that her use of marijuana was a "medical necessity."

In 1991, a hemophilic patient by the name of Kenneth Jenks was brought to trial for growing marijuana plants. Kenneth received AIDS at a hospital through a blood transfusion and transmitted the disease to his wife before he knew that he had the disease. Both Kenneth and Barbara were found guilty at trial, but the Florida Court of Appeals reversed their convictions, ruling that their use of marijuana was a "medical necessity." The Florida Supreme Court affirmed the reversal of their criminal convictions.

The federal government is the only legal supplier of medical marijuana in the United States, and currently supplies marijuana to only 8 medical patients, two of whom, George McMahon and Barbara Douglass, are Iowans. In 1991, the federal government decided to stop accepting any new applications, effectively nullifying all state laws allowing medical use of marijuana. Without a federal license, no one can use medical marijuana by prescription in the United States.

In 1994, Judge Irwin, an Iowa district court judge for Pottawattamie County, ruled that "medical necessity" is a recognized defense to prosecution for possession of marijuana in the state of Iowa. A copy of that order is enclosed with this letter.

Iowa law says that possession of marijuana is legal when used for medicinal purposes pursuant to rules of the board of pharmacy examiners. We have contacted the board of pharmacy examiners and discovered that the only rules are those contained in the regulations of the Food and Drug Administration and the Drug Enforcement Administration.

In 1991, an Iowan with multiple sclerosis by the name of Ladd Huffman was approval by both the Food and Drug Administration and the Drug Enforcement Administration to receive medical marijuana. However, his prescription was never filled, because the federal government decided to stop accepting new applications. Ladd's application was one of 28 which was approved but was never honored.

It is our position that seriously ill people who use marijuana for medicine should not be arrested and required to prove their medical necessity in a criminal trial. Seriously ill patients using marijuana as medicine should be able to have a hearing with the board of pharmacy examiners, or other qualified board. If they have a legitimate medical necessity, they should be certified and exempted from criminal prosecution by the state of Iowa. The Iowa Legislature should amend current state law by immunizing certified medical marijuana users from prosecution by the state.


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