If Your Two Sons are Slowly Dying of Serious Illness, Can You Gr
If Your Two Sons are Slowly Dying of Serious Illness, Can You Grow Marijuana to Ease Their Pain Until Death?
Sue Thayer’s oldest son, TT, was dying of leukemia. Neither chemotherapy, nor bone marrow transplants or other medicine helped. Sue grew marijuana on her land for TT to use. He found it effectively alleviated his symptoms - his nausea eased, his appetite improved, and he was even able to return to school for a while before he died.
Sadly, her youngest son MT, who suffered from scarred kidneys caused by a medical emergency as an infant, experienced wasting symptoms, including chronic nausea and loss of appetite. Sue found that marijuana helped his symptoms as well. She grew 50 to 100 marijuana plants indoors in the spring and planted them outside in June. This was about 50% more than she needed for MT, but she lost about half due to natural crop losses. Although Vermont has a law allowing people to register as patients or caregivers and grow up to nine marijuana plants indoors to produce not more than two ounces of marijuana for medical purposes, Sue did not register. She was busted for felony growing of more than 25 plants outdoors.
Sue asked the trial judge to permit her to put evidence before the jury that the medical suffering of MT made it necessary for her toviolate the law in order to care humanely for her son, who otherwise would suffer debilitating symptoms. In addition, she had no time or money to construct an indoor growing facility. The trial judge said “No.” Sue appealed.
Three Justices of the Vermont Supreme Court (Burgess, Skoglund and Dooley) also said “No.” The “necessity defense,” they wrote, is only available if there is an emergency and there is no reasonable opportunity to avoid injury without committing a crime. You can’t violate the law just because you disagree with the policies of the government, they wrote. Further, Sue offered no real proof that it would be impossible to grow enough marijuana indoors, to provide for MT’s use, so there was no “necessity.”
Chief Justice Reiber and Justice Johnson dissented in an opinion sharply criticizing the majority. A jury was entitled to decide the necessity issue if Sue had any evidence to support it, they wrote. People accused of a crime are entitled to a trial by jury, not hair-splitting analysis of issues by judges. A jury should determine whether Sue’s course of action was reasonable to care for MT’s illness.
Sue offered evidence that MT would soon die of kidney failure. “If that isn’t an emergency what is?” The necessity defense also requires avoidance of imminent danger. Impending death met this test as well. Nor did the law permitting indoor growing prevent Sue from arguing to a jury that in her case it was complicated and expensive to comply. The irony of this case, they wrote, was that the majority justices interpreted a law aimed at decriminalizing certain uses of medical marijuana, to effectively criminalize Sue’s actions, by taking her case from a jury.
No doubt a jury would have had compassion for Sue as did the dissenting justices. Their dissent is a powerful argument for legislative changes to decriminalize certain uses of marijuana. It should be read. State v. Sue Thayer 2010 VT 78
