couldn’t get by with the orders, {atorney} Tiſtickjian added. Others allow their own feelings to dictate restrictions, he said.’”57 Te Colorado Supreme Court heard oral argument October, 2019 in a case that will ultimately decide how Colorado will treat when people on probation can use medical marijuana. Te defendant a medical marijuana card holder argued that the “county court abused its discretion and violated Walton’s rights when the judge placed an undue burden on Walton when the judge demanded that Walton have her doctor testify in court about the necessity of marijuana.”58
Te woman will
ask justices to decide whether a defendant must provide evidence that the marijuana is medically necessary or whether probationers can use it unless a judge decides it’s appropriate for the sentence. Te case also questions to what lengths a probationer must go to prove the marijuana is critical to their health59 California does not make a distinction
related to the underlying conviction in their statutory scheme and instead permits a request for modification of the terms and conditions of probation or parole with a stated decision by the Court. Tis approach, like the Colorado approach, again seems to support judicial discretion. Te California Health & Safety Code § 11362.795 (2017)60
states as follows:
(a) (1) Any criminal defendant who is eligible to use cannabis pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medicinal cannabis while he or she is on probation or released on bail.(2) Te court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medicinal cannabis, the probationer or defendant may request a modification of the conditions
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of probation or bail to authorize the use of medicinal cannabis. (4) Te court’s consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.(b) (1) Any person who is to be released on parole fom a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medicinal cannabis pursuant to Section 11362.5 may request that he or she be allowed to use medicinal cannabis during the period he or she is released on parole. A parolee’s writen conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medicinal cannabis was made, and whether the request was granted or denied.(2) During the period of the parole, where a physician recommends that the parolee use medicinal cannabis, the parolee may request a modification of the conditions of the parole to authorize the use of medicinal cannabis.(3) Any parolee whose request to use medicinal cannabis while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision. (4) Te administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
In other states the language of the law is
open to interpretation. In Massachusets, for example, there remains a question as to whether Section 4, Chapter 369 of the Act for the Humanitarian Use of Marijuana (Protection from the State Prosecution and Penalties for Qualifying Patients and Personal Caregivers) which states, “Any person meeting the requirements under this law shall not be penalized under Massachusets law in any manner, or denied any right or privilege, for such actions.”61
Tis serves as a green light for
medical marijuana use while on probation, parole and even pre-trial release.
Te newest approach to marijuana-use
during pre-trial release is seen in United States v. Jackson, in the United States District Court, E.D. Pennsylvania,62
which
was a very unique holding that focused on federal legislation as opposed to state legislation addressing medical marijuana. In Jackson, the United States Probation office alleged that defendant violated terms of his supervised release by testing positive for the use of marijuana on ten occasions during his term of federal supervision. Te Court as a mater of first impression ruled that “none of the funds made available to Department of Justice (DOJ) may be used to prevent states from implementing their own medical marijuana laws prohibits DOJ from using its funds to prosecute violations of supervised release based on state-law compliant use of marijuana, and that DOJ involvement in supervised release hearing constitutes use of DOJ funding.”63 Te basis of the DOJ restriction
was based upon the Rohrabacher-Farr Amendment of a 2014 spending bill that blocked funding for federal actions against those in the medical cannabis field. When the 2014 budget amendment was originally passed, the Department of Justice interpreted that the ruling only affects interference with local laws. On February 15, 2019, the amendment was renewed as part of an omnibus spending bill in effect through September 30, 2019.64 Te Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), as it came to be known, prohibits the Department of Justice from spending funds to prevent states’ implementation of their medical marijuana laws. In addressing this Act, the U.S. Court of Appeals for the 9th Circuit in U.S. v. McIntosh65
held that section 542 prohibits
DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permited by state medical marijuana laws and who fully complied with such laws. Te
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