Can a person on probation or parole in Arkansas have a medical marijuana card? The answer is a definite – maybe, or maybe not — probably not, and it depends!
Arkansas voters approved an amendment to the state’s constitution legalizing medical marijuana in 2016.
Since the first sales were made in May 2019, the question of having a medical marijuana card while on probation or parole has rarely come before the courts, but the issue is arising with increasing frequency.
The problem is: federal law prohibits the cultivation, distribution or possession of marijuana – medical marijuana card or not.
This means on a federal level, all marijuana remains illegal and classified along with heroine and cocaine as a Schedule 1 drug.
When people are put on probation or parole, they must agree not to violate both state and federal law, and that’s where things get murky.
ISSUE COMING UP IN CIRCUIT COURT
Recently, two such cases were argued before Baxter County Circuit Judge John Putman.
In the first case, Judge Putman ruled against the motion to allow recertification of a medical marijuana card to permit its use by a man on probation.
When he made that initial ruling, Judge Putman said to grant the request would essentially leave him telling the defendant it was “perfectly okay to break federal law while on probation, and I am just not going to do that.”
In the first case, the probationer’s attorney argued medical marijuana had brought relief from a number of chronic medical conditions. If the man is not allowed to have medical marijuana while on probation, there appears little choice except for him to resume taking opiates and barbiturates, according to the motion filed by the lawyer.
In the motion on behalf of his client, the lawyer said the man has “had issues” with those type narcotics in the past.
A second case followed shortly and the argument was basically the same. The lawyer in that case said it appeared “to be the consensus that basically no one is going to get in trouble for having medical marijuana.”
Judge Putman said before he could rule affirmatively, the attorney needed to show him where it said in the Arkansas medical marijuana act that no one would get in trouble for breaking federal law.
How can it be legal to cultivate, sell and use medical marijuana in Arkansas, but deny use to a person on probation or parole?
It’s the pledge those on probation or parole make not to break both federal and state law during the term of a suspended sentence.
Such infractions could result in a revocation of probation/parole and time in prison.
LEGAL IN MOST STATES
The use of medical marijuana is legal in Arkansas and 36 other states, along with four U.S. territories. Non-medical adult use is allowed in 18 states, two territories and the District of Columbia.
The use of marijuana for both medical and recreational use is supported by a large majority of Americans, according to a recent Pew Center Poll.
But, because of the federal prohibition against its use, the issue is being handled in a variety of ways across the nation.
And, there is no guarantee that a U.S. attorney in some area would not take a hard line toward the possession and use of medical marijuana — or not.
Or, that probation and parole agencies in different states would adopt policies at significant variance with each other in what is allowed and not allowed.
Some time ago, the Department of Justice (DOJ) announced what amounts to a “look the other way” policy to the general use of medical marijuana.
The policy did not address those on parole and probation.
The DOJ said federal prosecutors should not focus resources on individuals “whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
Because there are so many different interpretations cropping up across the county dealing with the use of medical marijuana by those on probation and parole, many experts are predicting the issue will reach the U.S. Supreme Court at some point.
The task for the nation’s highest court would be to bring some consistency to the way medical marijuana users, including those on probation and parole, are treated under the law.
SECOND BAXTER COUNTY CASE
The attorney in the second case to come before Baxter County Circuit Court told Judge Putman she hoped the court would change its stance regarding not allowing those on probation to have medical marijuana cards.
The judge said the issue “puts me in quandary. I don’t want to break federal law, but I want to make sure we are approaching this correctly.”
At least one circuit judge in Northwest Arkansas has allowed a probationer with a medical marijuana card to continue to use his card.
The same judge denied another defendant’s request because the crime the person committed was based on inappropriate sexual behavior.
The judge said all such requests in his court would be handled on a case-by-case basis.
In Arkansas, enforcement of probation and parole terms and conditions is vested in the office of Arkansas Community Corrections (ACC).
A spokesman for ACC in Little Rock said the agency only enforces conditions set by a judge in the case of probation and the state parole board for parolees. The ACC spokesman said the agency “defers to the judge to determine if the individual probationer is permitted to use medical marijuana while under supervision.”
FEDERAL POLICY CHANGE WOULD SOLVE PROBLEM
As long as marijuana use is considered a crime by federal law, the issue of medical marijuana for those on probation and parole will leave courts in states where it is legal with no clear cut guidance as to how to proceed without violating federal law.
Unless a change is made in federal policy, a Little Rock defense attorney said that guidance from higher courts is needed to bring “clarity and consistency” to the issue.
Currently, the “look the other way approach” has come in for criticism because there is no guarantee all parts of the justice system will agree to avert their eyes from what is now clearly a federal crime.
In addition, according to some legal experts, a change in federal policy would also remove the threat that “when the political winds blow in a different direction, the feds might opt to throw the “look the other way’ approach out the window.”
The federal criminalization of marijuana also creates problems for those in the business of cultivating and selling the product.
Some financial institutions across the U.S., for example, won’t handle the accounts of businesses involved in growing and selling marijuana for fear they might be held criminally liable in some fashion under existing federal law.
If the federal policy isn’t changed, many legal experts believe the issue could go to the U.S. Supreme Court based on an equal protection question.
Because different states are handling the situation in a number of ways, it could be argued people on probation and parole are being denied equal protection of the law.
Legal experts have said the obvious and fastest way to get rid of the problem would be for the federal government to change its policy of criminalizing all marijuana.
This, they say, would remove the threat of potential federal prosecution now hanging over the heads of medical marijuana users – including those on probation and parole – and others in the supply system.
CHANGE ON THE WAY?
Both major political parties are working on a version of legislation to substantially change federal pot policy.
If successful, the legislation would lead to the decriminalization of medical marijuana and would include “safe harbor” provisions “to protect patients and businesses acting in compliance with state law and marijuana would be treated in a similar fashion as alcohol.
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