MARIJUANA LAW UPDATES BY JUDGE MARY CELESTE


Medical Marijuana Use in Drug Courts, Probation, Parole and Pretrial Release


Tis article is a reprint with permission fom the author Judge Mary A. Celeste (ret.) The Use of Medical Marijuana in Drug Courts, Probation, Parole and Pre-trial Release, Journal of Community Corrections, Volume 29, Number 2, Winter, 2020


W


ith the legalization and decriminalization of marijuana, the obvious impact on the


courts is the reduction of low-level marijuana possession criminal cases.1 In most recreational marijuana states, it is legal to possesses under an ounce of marijuana while in those states that have decriminalized marijuana possession, under an ounce will no longer impose a jail sentence upon conviction. Most decriminalized states now instead treat possession under an ounce as a civil infraction with minimal fines.2 Te not so obvious impact is how


legal medical marijuana use has created a hodgepodge of issues and approaches in drug courts, diversion/deferred sentencing, probation, parole and pre-trial release decisions and policies. Many of these policies regarding medical marijuana use in the Courts are in flux. Some policies are beginning to develop as state and appellate case decisions and statutory schemes evolve. Tus far, drug courts both deny and admit participant entry for medical marijuana users; some courts do and do not permit medical marijuana use while on probation, diversion/deferred sentencing, parole and pre-trial release; and some courts permit it conditionally. Te schism between state medical marijuana laws and the federal illegality of marijuana under the Control Substances Act,3


long


with the U.S. Supreme Court ruling in Raich v. Gonzales4


that gave the federal


government preeminent authority over medical marijuana, plays a role in some of these developing court policies and decisions.5


federal illegality of marijuana; the Court’s reliance on the state medical marijuana laws; whether the underlying convictions are marijuana related; the treatment of medical marijuana as a prescription medication; the sole discretion of the Court; and, constitutional considerations. As medical marijuana laws and use


increase, the courts are implored to establish policy positions on these maters. Tis article will discuss the current status of medical marijuana use in the Courts including in drug courts; probation, parole and pre-trial release, diversion/deferred sentencing by reviewing developing case law and applicable state and federal legislative schemes.


Drug Courts Nearly one-quarter of the 16,000 courts in the U.S. are Specialty Courts.6


Tey


operate both in limited jurisdiction and general jurisdiction Courts. “Adult drug courts are philosophically and intentionally different from ordinary criminal courts.”7 “Programs are typically managed by a multidisciplinary team including judges, prosecutors, defense atorneys, community corrections officers, social workers, and treatment service professionals.”8


Tey are


based on a drug court model that includes offender screening and assessments; judge as the leader; supervision including drug and alcohol monitoring; sanctions for minor violations and incentives as recognition for good compliance; and, treatment and rehabilitation with an eye towards reducing drug use relapse and criminal recidivism.9 Drug Courts set the policies for what


With some nuance, the rationale


for the Court positions typically falls upon a myriad of approaches which include the


38 datia focus


is known as the “target population” or the optimum participant eligible for the drug court program. A drug court


2020 • Issue 2


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48