Marijuana Edibles Lawsuits Resurrect ‘Reefer Madness’

“The candy made me do it!” Legalization has reopened the floodgates to centuries-old ‘marijuana madness’ product liability lawsuits.

Just one bite-sized edible of marijuana candy was all it took to push Richard Kirk over the edge.

After fatally shooting his wife and the mother of his three children, he recovered from the candy’s intoxicating effects which had triggered his temporary bout of insanity and called his lawyers. They helped him plead not guilty to the criminal charge on an insanity plea, then file a suit in civil court against the real culprit: the unscrupulous marijuana manufacturers who had failed to warn the public of the foreseeable danger of their products triggering murderous fits of rage.

Victor Licata woke suddenly, retrieved an axe from the shed, then hacked his parents and three siblings to death. The chief of police, going to the press, revealed that he had uncovered a marijuana addiction which Licata had nursed for six months prior to his murderous deeds. He also learned that Licata’s family had attempted to have him committed for violent insanity six months before his marijuana “addiction” supposedly began, but that mattered little: marijuana was the real culprit.

One of these incidents occurred in 1933, and became reframed by Harry Anslinger as the smoking gun he needed to push prohibition through lagging states and, later, Congress; the other occurred in 2014 in a legal marijuana state. If you’re having trouble telling them apart, you can be forgiven. In the conservative halls of our nation’s courts, prejudicial attitudes against cannabis have barely budged in 80 years.

Both cases turn on a legal conundrum which, over a hundred years since it was first described, still has yet to be resolved.

In the late 19th century, a medical student in Mexico wrote the first academic paper describing the legal defense of marijuana insanity, which, if you think about it, is exactly synonymous with “reefer madness.”

As U.S. newspapers of the 1920s and ’30s continually repeated the story that even a single hit of “marihuana” could drive the user into violent madness, clever defense lawyers wasted little time taking the point to its logical conclusion: if what the government reports and nonprofit educational films was saying were true, they argued, then it was not their clients, but rather the muggles they consumed, which were responsible for the crimes committed.

Though there are no known cases of defendants beating criminal charges using the marijuana insanity defense, the rapid spread of the argument was sufficient to alarm prosecutors nationwide – and soon enough, government propagandists discarded the reefer madness line for the “gateway drug” narrative, which resolved the logical contradictions of the police state without ever truly addressing them. The question of cannabis culpability has been kicked down the road by the courts ever since.

The 2014 Kirk case, which occurred in Colorado, may provide a glimpse as to how major changes in the criminal code – like legalization – may reopen the floodgates on an old issue temporarily put to rest. Kirk is unlikely to fare on his insanity plea as well as Victor Licata, who in 1933 was found mentally unfit to stand trial and committed to a mental institution; courts are no more willing to let defendants use pot smoking as a “get out of jail free” card in the 21st century than they were in the 20th.

But his civil lawsuit could presage a very different world to come. Licata’s surviving family may have liked to have sued the dealers who supplied him, but under prohibition finding them would have been practically impossible; now that the licensed manufacture of edibles is legal in Colorado and a growing list of other states, finding an alleged tortfeasor and serving them with process has become as simple as Googling their address.

This could quickly sweep in an ironic return to reefer madness. As Kirk’s lawyers wrote in their suit against the edible manufacturer:

“Edibles themselves are not the evil, it is the failure to warn, the failure to properly dose, the failure to tell the consumer how to safely use edibles, that is the evil. And this lawsuit will force change.”

Indeed it may. Faced with the prospect of any crazed violent criminal popping a candy in an attempt to relieve himself of the responsibility of his actions, edibles manufacturers may simply find it more convenient to plaster their packaging with “warnings” auguring all manner of mayhem and death resulting from their product’s use, to the point that they begin to resemble a pharmaceutical drug commercial. And if that happens, history will remember the legal marijuana industry as the force that finally brought reefer madness back.

Do you think there is any merit to blaming edibles for criminal behavior?

Jeremy Daw is a contributor of Cannabis Now Magazine and the author of Weed the People: From Founding Fiber to Forbidden Fruit. After studying English Literature at the University of Texas, philosophy at NYU, and law at Harvard, he embarked on a career of writing about his favorite plant. As an expert in the law, history, and politics surrounding cannabis sativa L., Jeremy provides exceptional insight and analysis for cannabisnow.com.

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