Updated: Jan 19, 2019
On Oct 30, 1996, a Kentucky Court heard Woody Harrelson’s Motion to Dismiss after planting hemp seeds in Lee County, Kentucky, and indicated that the General Assembly “arbitrarily removed a viable alternative crop, industrial hemp, from the possibilities available to Kentucky farmers.” (Charges are dismissed.) See full text of Woody Harrelson's legal hemp brief below.
COMMONWEALTH OF KENTUCKY
23RD JUDICIAL CIRCUIT
LEE DISTRICT COURT
COMMONWEALTH OF KENTUCKY PLAINTIFF
BRIEF ADDRESSING CONSTITUTIONALITY OF KRS 218A.010 (12) WOODY HARRELSON
Comes the Defendant, Woody Harrelson, by counsel, and hereby submits his Brief pursuant to this Court's Order of October 30, 1996. Additionally, contemporaneous with the filing of this Brief, Harrelson is tendering to the Court a transcript of the hearing which occurred on October 30, 1996.
The Brief submitted by the Commonwealth on November 22, 1996 is correct insofar as it relies upon the testimony presented to this Court on October 30, 1996. (Note 1, The Commonwealth's Brief strays from the record before this Court on numerous occasions when it quotes individuals and documents which are not in the record before the Court. Specifically, Harrelson refers the Court to the Commonwealth's citation to Professor Robert G. Robertson paragraph 3, page 2; and DEA Agent Wayne Roques paragraph 2, page 6. Due to the fact that these individuals were not before the Court, Harrelson requests the Court to disregard those portions of the Commonwealth's Brief.)
However, a more thorough discussion of what transpired during the hearing on Harrelson's Motion to Dismiss is needed to adequately address the issues before this Court.
COUNTERSTATEMENT OF THE CASE
On June 1, 1996 Harrelson planted four industrial hemp seeds on a plot of land located in Lee County, Kentucky. The seeds planted were industrial hemp seeds certified to have a tetrahydrocannabinol ("THC") content of less than one percent by weight. (Transcript of Hearing, October 30, 1996, pp. 28-29)(hereinafter "TR"). Harrelson was arrested, charged with misdemeanor cultivation of marijuana and subsequently released on a $2,000.00 /10 percent bond. The Commonwealth subsequently moved to amend the charge to misdemeanor possession of marijuana in violation of KRS 218A.1422. On October 23, 1996 Harrelson filed a Motion to Dismiss contesting the constitutionality of the definition of "marijuana" found in KRS 218A.010(12). An evidentiary hearing on the Motion to Dismiss was held before this Court on October 30, 1996. (Note 2, An Agreed Order between the Commonwealth and Harrelson changed the venue between the Lee County situs of the alleged crime and the actual location of the hearing in the Owsley District Court.)
Woody Harrelson was the first witness presented by the defense. Harrelson stated that he currently resides in Costa Rica but is an American citizen and is a graduate of Hanover College, Indiana.
Harrelson testified that he planted four industrial hemp seeds in Lee County, Kentucky on June 1, 1996. Harrelson indicated that the seeds were certified to have less than one percent THC. (TR. pp. 28 29).Harrelson stated that he became interested in industrial hemp in 1991 due to the environmental advantages of industrial hemp. Harrelson stated that he is now a partner in a company known a Hempstead Company which is located in Costa Mesa, California. The Hempstead Company markets textile products and clothing products made with industrial hemp. Harrelson stated that gross sales from this company was $1.5 million dollars in 1995. All sales were made in the United States. (Id., p. 30).
Harrelson related that it was difficult economically to make a profit on industrial hemp products in the United States. He stated that it is mainly because industrial hemp cannot be grown legally in the United States and, therefore, all industrial hemp must be imported from other countries. Harrelson stated that his company has purchased at least $150,000.00 of industrial hemp on the world market in 1995. He stated that his company owned one of 180 stores currently marketing hemp products in the United States. (Id., p. 31).
Harrelson indicated that he had visited farms in England where industrial hemp is grown legally. Harrelson stated that there was no problem with the law enforcement officials in England concerning the growth of industrial hemp. (Id., p. 35).
All in all, Harrelson indicated that he had planted the four seeds in Lee County in order to test the constitutionality of the Kentucky definition of marijuana. Furthermore, Harrelson stated that he was trying to bring more attention to the issue by his participation in the marketing of industrial hemp.
The defense also presented the testimony of Dr. Varley Wiedeman. Dr. Wiedeman stated that he was Professor Emeritus of Biology from the University of Louisville and is currently the Science and Education Advisor at the Bernheim Arboretum and Research Forest. Wiedeman indicated that Bernheim Arboretum Forest is the state arboretum of Kentucky that contains approximately 14,000 acres of land and is used as a research forest.
Dr. Wiedeman indicated that he has a Bachelor of Science Degree in Botany and a Masters of Science Degree in Plant Ecology from the University of Oklahoma. He also indicated that he possesses a Doctorate in Botany from the University of Texas in Austin. Dr. Wiedeman stated that he has taught botany at the University of Louisville for thirty-one years and is continuing to teach there on a part-time basis. Dr. Wiedeman defined botany as a study of plants. He defined plant taxonomy as the interrelationship of plants from one species or subspecies to another.
Dr. Wiedeman stated that a species is defined botanically as an interbreeding population of organisms that produce viable offspring. Dr. Wiedeman stated that a subspecies is a variety or a form of plant that is slightly different based on plant physiology. (TR, pp. 37-39).Dr. Wiedeman stated that he has extensively researched the plant known as cannabis. He stated that cannabis is a single genus within the family, cannabis E. Dr. Wiedeman stated that there are two major subspecies of cannabis; subspecies sativa which is commonly known as hemp, and subspecies indica which is commonly known as marijuana. (Id., p. 39).
Dr. Wiedeman related that hemp has been grown in the world from at least 4,000 B.C. He stated that hemp was brought to the United States in the 1700's and was a major cash crop in Kentucky by 1812. Dr. Wiedeman testified that the hemp fabric was the first fabric used for the production of denim and that much of the paper in this country in the 17th and 18th centuries was in fact made with hemp fiber. Dr. Wiedeman related that some portions of the original Constitution and Bill of Rights were written on hemp paper.
Dr. Wiedeman stated that hemp has many and varied economic uses today. He stated that the hemp oil can be used in paints, varnishes and also as a food source. He stated that the oil is also used in the cosmetic industry. Dr. Wiedeman stated that hemp fiber is the single longest continuous fiber that is grown naturally. He also stated that hemp fiber is extremely durable and is one of the most resilient fibers known. (Id., p. 40).
Dr. Wiedeman indicated that the two subspecies of cannabis are easily distinguished. Dr. Wiedeman stated that hemp can grow to twenty-five feet in height in maturity. He also stated that hemp had a tougher skin which was hard and "woody". The stem of the plant has a square shape. Finally, Dr. Wiedeman stated that the internode, i.e., the space between branches on the stem, in hemp is several inches apart. Significantly, Dr. Wiedeman stated that the THC content of industrial hemp is less than 0.3 percent of mass by dry leaf weight. (TR, p. 41).
Alternatively, Dr. Wiedeman stated that subspecies indica, i.e. marijuana, is a much shorter plant which only reaches four to five feet in height at maturity. He stated that the internodes were much closer together with a great deal more branching. Dr. Wiedeman also stated that the indica subspecies has a smaller stem.Dr. Wiedeman was also questioned about his knowledge of a plant known as kenaf. Dr. Wiedeman stated kenaf is a tropical plant which originated in India. He stated that it is not frost resistant and has difficulty growing in the state of Kentucky.
Dr. Wiedeman was specifically asked to review the definition of marijuana as contained in KRS 218A.010(12). (Note 3, KRS 218A.010(12) states that marijuana is: [A]ll parts of the plant cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances.) Dr. Wiedeman opined that the definition contained in that statute comprises the entire genus of cannabis. Specifically, he stated that "cannabis sp." means any species or any form of the genus cannabis. Therefore, the definition includes both subspecies. Dr. Wiedeman stated that based on this statute hemp or any part of the plant is illegal in Kentucky. Dr. Wiedeman was questioned concerning his botanical expertise and its relation to this statute. Specially, Dr. Wiedeman was asked:
QUESTION: "Now from a botanical perspective, is there any logic behind [KRS 218A.010(12) ?"
ANSWER: "I don't think so. I don't agree with that myself... have not for many years since I have been teaching economic botany. We have talked in economic botany about the use of hemp and the history behind that and I just simply am not in agreement with the fact that to generalize [it] in that way." (TR, p. 43).
Dr. Wiedeman was also questioned concerning the economic impact of growing industrial hemp in Kentucky. Dr. Wiedeman stated that it would "revolutionize" agriculture in the state of Kentucky and would greatly reduce the cutting of trees. (Id., p. 44). Dr. Wiedeman opined that there was a strong market waiting for hemp fibers. Id., p. 46).
Dr. William Pierce also testified for Harrelson. Dr. Pierce is an Associate Professor of Pharmacology and Toxicology at the University of Louisville School of Medicine. Dr. Pierce stated that he had a Bachelors Degree in Chemistry and a Doctorate in Pharmacology and Toxicology from the University of Louisville. Dr. Pierce stated that pharmacology is the science that studies the way drugs interact with the human body and that toxicology is the science that deals with poisons and toxins interact with the human body. (TR, p. 48). Dr. Pierce testified that he is a qualified clinical chemistry laboratory director and that his laboratory is certified by the Drug Enforcement Administration. (Id., p. 49).
Dr. Pierce that stated that he is very familiar with the effects of THC on the human body. He stated that THC can cause euphoria, a sense of well-being, an elevated heart rate and changes in short term memory. Dr. Pierce stated that a dose of 10 milligrams of THC could cause the effects mentioned previously. (Id., p. 49-50).Dr. Pierce also testified that he had also research the various subspecies of cannabis known as industrial hemp and marijuana. He stated that from a toxicological viewpoint, the main difference between the two subspecies is the concentration of cannabinoids, primarily being THC.
Dr. Pierce stated the THC content in marijuana can be as high as ten to twenty percent as a percentage of the dry weight. Dr. Pierce stated that industrial hemp generally has be THC content of less than 0.5 percent and that they are some varieties that have a THC content of as low as 0.05 percent THC. (Id., p.51).
Dr. Pierce stated that they are two routes of administering THC to the human body from marijuana. Specifically, he stated that marijuana can be used to administer THC to the human body through inhaling the smoke or from ingestion orally. (Id., p. 51).
Dr. Pierce then stated that he had calculated the amount of industrial hemp necessary to produce a 10 milligram dose of THC by way of smoking. Dr. Pierce stated that it would take 16 to 17 grams of industrial hemp based upon a 0.5 percent THC content. Dr. Pierce testified that he used the maximum THC content of hemp, i.e., 0.5%. Consequently, lower THC contents would obviously require much more hemp to produce a 10 milligram dose. He testified that 16 or 17 grams of hemp would be equivalent to the tobacco content of approximately 25 to 26 eight-five millimeter cigarettes. Dr. Pierce opined that it would be necessary to smoke the 25 to 26 hemp cigarettes within a time period of one hour to deliver the standard 10 millimeter dose of THC. Although Dr. Pierce stated that it would not be physically impossible to do to smoke that amount, it would definitely cause severe discomfort in the upper respiratory tract of the smokers. (Id., p. 52).Dr. Pierce stated that it would take approximately the same 16 to 17 gram dose of industrial hemp ingested orally to get a standard 10 milligram dose of THC. He stated that that would be the equivalent mass to 26 to 30 standard cigarettes. He stated that the fiber content contained in that amount of industrial hemp would provide the same amount of roughage equivalent to 4 to 5 standard doses of a fiber laxative and that it would have the same effect on the human body. (Id., p. 52).
Finally, Dr. Pierce testified that industrial hemp and marijuana contained different amounts of CBD, also known as cannibididol. He stated that this was another group of cannoids found in cannabis. He stated that the marijuana subspecies is rich in THC and low in CBDs where as the industrial hemp subspecies is high in CBDs and low in THC. Dr. Pierce testified that there are anecdotal reports of CBD causing headaches in humans. He also stated that due to the similarity in chemical structure between CBDs and THC, CBDs may block the effects of THC when given in the same dose.The Commonwealth also presented the testimony of Sgt. James Tipton of the Kentucky State Police. Sgt. Tipton stated that it was his opinion that the legalization of industrial hemp would cause difficulty for law enforcement and the enforcement of our present marijuana laws. However, he bases his opinion on the contention that industrial hemp was difficult to distinguish from marijuana. He also stated that industrial hemp could be used to hide marijuana plants. However, upon cross-examination, he also acknowledged that planting industrial hemp in close proximity to marijuana would result in a less potent version of marijuana which would not contain high amounts of THC. (TR, p. 9).
Dr. Morris Bitzer, a Professor of Agronomy at the University of Kentucky, also testified for the Commonwealth. He stated that a similar plant, kenaf can now be grown in the United States. He stated that kenaf contains fibers similar to industrial hemp. However, he admitted that kenaf is not frost resistant and has a long growing season. Dr. Bitzer acknowledge that it was impossible to do research on industrial hemp at the University of Kentucky due to the current status of law. (TR, p. 16).
Finally, Dr. Scott Smith, an agriculture economist at the University of Kentucky, also testified for the Commonwealth. He stated that based upon all of his research he could only find evidence of $600,000.00 of hemp fibers being imported in the United States in 1995. (TR, p. 21). While acknowledging that there were economic possibilities for industrial hemp in the United States, Smith stated that he did not think that the market was very broad. (TR, p. 22).
The current definition of marijuana found in KRS 218A.010(12) was passed by the General Assembly of Kentucky 1992. Prior to 1992, "marijuana" was defined as:'Marijuana' means all parts of the plant cannabis sativa el., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound ,manufacture, salt, derivative, mixture or preparation of the plant, its seed or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound manufactured, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, with the sterilized seed of the plant which is incapable of germination.
KRS 218A.010(9) (1992 version). The General Assembly does not publish an official legislative history. Therefore, there is no information concerning the rationale for deleting the portion of the definition of marijuana which referred to industrial hemp during the 1992 amendment.
Section 2 of our Constitution states:
Absolute and arbitrary power denied. Absolute and arbitrary power over the lives, liberty and property of freemen exist nowhere in a republic, not even in the largest majority.Section 2 of our Constitution has been held to be a curb on the powers of the legislature as well as any other political body attempting to exercise arbitrary political power. Sanitation Dist. No. 1 v. The City of Louisville, 308 Ky. 368, 213 S.W.2d 995 (1948). When the political action taken rests upon reasons so unsubstantial or the consequences are so unjust as to work a hardship, judicial power may be imposed to protect the rights of persons adversely effected. Wells v. Board of Education of Mercer County, Ky., 289 S.W.2d 492, 494 (1956).
Section 2 of our Constitution is broad enough to embrace the traditional concepts of due process of law [and] equal protection of the law. Pritchett v. Marshall , Ky., 375 S.W.2d 253, 258 (1963).The most illustrative case concerning the judicial interpretation of Section 2 of the Kentucky Constitution is Kentucky Milk Marketing v. Kroger Company, Ky., 691 S.W. 2d 893(1985). In addressing a milk pricing statute and holding that it violated Section 2 of the Constitution, the Supreme Court stated, "we believe the enactment of [this statute] is an arbitrary exercise of power by the General Assembly over the lives and property of freemen." 691 S.W.2d at 900.
The Commonwealth argues in this case that industrial hemp should be illegal due to the difficulties in distinguishing industrial hemp from marijuana. Unfortunately, the testimony from Dr. Varley Wiedeman, a noted botanist, indicates that the plants are easily distinguishable. In fact, the testimony of the Commonwealth's own witness, Sgt. James Tipton, demonstrated that if the plants are intermingled the THC content of the marijuana would be dramatically lessened. Arguably, this would have a detrimental effect on the marketability of the illegal marijuana. Consequently, it is hard to imagine that someone attempting to grow marijuana would attempt to mix it with industrial hemp as a cover crop as alleged by the Commonwealth.
The Commonwealth also contends there is no economic market for industrial hemp. Unfortunately, Harrelson's own testimony clearly indicates that this is not so. Harrelson stated that his company, which owns only one store, had sold over $1.5 million dollars worth of hemp-based articles in 1995 alone. Harrelson also testified about the economic disadvantage of having to import industrial hemp from other countries. As Harrelson stated, his company alone had imported over $150,000.00 worth of industrial hemp in 1995. (Note 4, The testimony of the Commonwealth's witness, Dr. Scott Smith, should be discounted due to its obvious implausibility. Dr. Smith stated that only $600,000.00 of industrial hemp was imported in the United States in 1995. Harrelson stated that his company alone, imported one quarter of this amount. Harrelson also stated that there were over 180 different companies marketing industrial hemp and operating in the United States.)
Dr. Wiedeman also testified that he felt that there was a viable market for industrial hemp. In fact, he testified that industrial hemp would "revolutionize" the agriculture economy of Kentucky. Dr. Wiedeman testified about the many uses of industrial hemp and the vitality of the industrial hemp plant in the Kentucky climate.
Although Harrelson contends that it is irrelevant, the Commonwealth has also argued that a separate plant, kenaf, is available as an alternative crop in Kentucky. Unfortunately, this has nothing to do with the issue before the Court - the constitutionality of the Kentucky definition of marijuana. However, even if the Court does accept this alternative crop argument, the Commonwealth's own witness agreed with Dr. Wiedeman in testifying that the kenaf plant is not frost resistant and has a lengthy growing season. Consequently, kenaf is not a viable alternative in the Kentucky climate.
Finally, Harrelson has readily demonstrated to this Court that industrial hemp has a minimal psychoactive effect upon the human body. The testimony of Dr. Pierce demonstrated that 25 to 26 cigarettes made from industrial hemp must be smoked in a period of under one hour in order to produce a standard 10 milligram dose of THC. As Dr. Pierce stated, this would cause severe upper respiratory tract irritation. (Note 5, By way of analogy, Harrelson contends that this would be comparable to smoking 25 to 26 unfiltered cigarettes in a sixty minute period. Simple math indicates that this would require the smoking of one industrial hemp cigarette every two minutes and fifteen seconds.) Dr. Pierces testimony indicates that the oral ingestion of industrial hemp in order to produce a 10 milligram dose is just as implausible. Dr. Pierce concluded his testimony with the fact that industrial hemp contains amounts of CBDs which the effects of THC on the human body. In fact, he stated that it was quite possible that the CBDs contained in industrial hemp also would cause headaches if administered by either route.
In sum, the Commonwealth has not produced a plausible reason why industrial hemp was made illegal in Kentucky in 1992. (Note 6, Any argument about federal preemption of this issue is also irrelevant. The Court has only been asked to address the Kentucky statute on this issue. Federal preemption is a different question for a different court at a different time.) It is clear that the General Assembly arbitrarily reached this decision with no basis in fact. Consequently, this Court should hold the definition of marijuana contained in KRS 189A.010(12) to be an absolute and arbitrary exercise of power by the General Assembly which is unconstitutional.
Additionally, KRS 218A.010(12) is constitutionally defective due to its overbroad application. As Dr. Wiedeman testified, there are two subspecies of the species known as cannabis sativa sp. One subspecies, marijuana, is illegal due to its possession of psychoactive properties. The other subspecies, industrial hemp, contains minute amounts of THC and is a viable alternative crop for Kentucky farmers. Kentucky courts had previously held a statute to be unconstitutional due to its overly broad application. In Commonwealth v. Foley, Ky., 798 S.W.2d 947 (1990) the Supreme Court of Kentucky stated: A challenge to the statute on the basis that it is over-broad is essentially an argument that in an effort to control impermissible conduct, the statute also prohibits conduct which is constitutionally permissible. 798 S.W. at 952.
Dr. Wiedeman provided a interesting analogy for the court concerning the Commonwealth's actions pursuant to the statute. The Commonwealth, by enacting the statute, has made an entire species illegal when only one subspecies has any possible illegal use. As Dr. Wiedeman stated, this is comparable to making all dogs illegal because one subspecies, the pitbull, has been found to be violent. It is clear that there is not rational basis for mandating that industrial hemp to be illegal.
This Court heard testimony on Harrelson's Motion to Dismiss on October 30,1996. The record clearly indicates that there is a viable market for industrial hemp. The record also indicates that industrial hemp does not possess the psychoactive properties of its cousin, marijuana. The record clearly demonstrates that both subspecies are easily distinguishable. Kentucky agriculture is now at a crossroads due to the heightened scrutiny on Kentucky's traditional cash crop, tobacco. The passage of KRS 218A.010(12) by the General Assembly arbitrarily removed a viable alternative crop, industrial hemp, from the possibilities available to Kentucky farmers.
WHEREFORE, this Court should hold KRS 218A.010(12) to be an unconstitutional on its face and dismiss the charges currently pending against Harrelson.
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