New Jersey Section 2C:36-6.3 – Affirmative defense to criminal action, construction of act.
New Jersey’s Drug Laws: Understanding the Affirmative Defense in 2C:36-6.3
New Jersey has some of the strictest drug laws in the country. But in 1987, the state legislature enacted Section 2C:36-6.3 to provide an affirmative defense for people charged with minor marijuana offenses. This law allows defendants to avoid conviction if they can show their marijuana use was to treat a debilitating medical condition.
What is an affirmative defense?
An affirmative defense is a legal argument that a defendant can make to avoid liability, even if the prosecution can prove all the elements of the charged offense. Rather than claiming “I didn’t do it,” the defendant is essentially saying, “I did it, but I should not be punished because…”
Affirmative defenses acknowledge the defendant committed the prohibited act, but argue there are facts that excuse or justify their conduct. Common examples include self-defense, insanity, and entrapment. 2C:36-6.3 establishes medical necessity as an affirmative defense for minor marijuana possession and use.
How does the medical necessity defense work?
To assert the affirmative defense under 2C:36-6.3, the defendant must show three things:
- They suffer from a debilitating medical condition
- A doctor advised that marijuana may mitigate the symptoms of that condition
- The quantity of marijuana was no more than reasonably necessary to treat the condition
If the defendant establishes these elements by a preponderance of evidence, they cannot be convicted of marijuana possession or use. The law defines debilitating medical condition as:
“Seizure disorder, including epilepsy; intractable skeletal muscular spasticity; post-traumatic stress disorder; or glaucoma, if any of these conditions are resistant to conventional medical therapy.”
The legislature picked these conditions based on clinical research showing marijuana’s therapeutic potential. The law recognizes that for some patients, cannabis offers relief when other treatments fail.
What’s the history behind 2C:36-6.3?
New Jersey enacted the Comprehensive Drug Reform Act in 1987. This legislation adopted strict mandatory minimum sentences for drug offenses. Simple marijuana possession became punishable by up to 6 months in jail and a $1000 fine.
Many lawmakers worried these harsh penalties would brand as criminals those using marijuana for legitimate medical purposes. So the legislature included Section 2C:36-6.3 to ensure patients could defend themselves.
The medical necessity defense was the country’s first recognition that marijuana has accepted medical uses. It paved the way for broader medical marijuana laws in other states.
Who can use the affirmative defense?
The defense applies to prosecutions for:
- Possessing less than 1 ounce of marijuana
- Using or being under the influence of marijuana
- Possessing drug paraphernalia for marijuana use
It does not apply to distribution charges. Selling marijuana remains illegal with no exceptions.
Critically, the defense is not limited to the debilitating conditions listed in the statute. Courts have allowed patients to assert medical necessity for conditions like HIV/AIDS, Crohn’s disease, and chronic pain. As long as the defendant meets the three requirements outlined above, the specific diagnosis is not controlling.
What are the pros and cons of 2C:36-6.3?
Proponents argue the law provides critical protections for sick people who use marijuana out of medical need. It prevents patients from being convicted as criminals simply for following their doctor’s advice. The defense gives prosecutors discretion to not charge those using cannabis for legitimate medical purposes.
Critics counter that the affirmative defense is an inadequate half-measure. They point out that it still involves arresting, prosecuting, and requiring sick people to prove themselves in court. These critics advocate broader access to medical marijuana through dispensaries, home cultivation, and protection from arrest entirely.
How effective is the affirmative defense?
It’s hard to quantify how often defendants succeed with the medical necessity argument. Most cases plead out or get diverted from the criminal justice system before trial. Some prosecutors are also reluctant to target medical marijuana users in the first place.
But the defense has clearly helped many sick people avoid convictions over the past 35+ years. Courts have recognized its applicability to an expanding list of conditions. The legislature has also shown a willingness to revisit marijuana laws as public attitudes evolve.
Looking forward
While Section 2C:36-6.3 remains in effect, New Jersey has significantly expanded access to medical marijuana. The state’s Compassionate Use Medical Marijuana Act, adopted in 2010, allows licensed physicians to recommend cannabis for any condition they believe it would help.
In 2020, New Jersey went even further by legalizing possession and home cultivation of small amounts of marijuana for all adults 21 and over. However, the medical necessity defense retains importance for those facing prosecution for quantities above the legal adult use limits.
For defendants asserting medical need, 2C:36-6.3 provides critical protections not available in many other states. It reflects an acknowledgement by New Jersey lawmakers that marijuana has legitimate medical applications for some patients. While not as comprehensive as broader medical marijuana laws, the affirmative defense continues to serve an important purpose even as social attitudes toward cannabis evolve.