Foreshadowing an Inevitable Clash: Criminal Probation, Drug Treatment Courts, and Medical Marijuana.

• Date: 22 March 2023
• Author: Sousa, Michael D.

I. INTRODUCTION

During the span of the past two decades, the state criminal justice system has been fundamentally altered by two seemingly independent and unrelated phenomena- -the legalization of marijuana for medicinal use at the state level alongside the explosive and exponential growth of drug treatment courts as adjuncts to the criminal justice system. Broadly defined, drug treatment courts provide criminal offenders who have been diagnosed with substance use disorders community-based treatment services and intensive probation supervision as alternatives to incarceration. (1) The spread of medical marijuana legislation across the United States has introduced future legal and practical complexities for drug treatment courts which are presently simmering just below the surface. This Article is the first in the scholarly literature (2) to address what is the foremost legal and practical issue confronting drug treatment courts in the near future, namely, the intersection between imposed conditions of probationary sentences--which are in large measure permitting the use of medical marijuana--and the present institutional regime of drug treatment courts that overwhelmingly follow an abstinence-based model (3) and prohibit participants from using medical marijuana while serving probationary sentences in the drug treatment court program.

The arguments and observations raised in this Article reduce to a seemingly straightforward, but incredibly complicated legal and pragmatic question: Under what circumstances may the lawful use of medical marijuana be permitted or prohibited as a matter of law in drug treatment courts, and if allowed, what practical considerations should professionals working in drug treatment courts around the country be concerned with so as not to fundamentally disrupt quotidian operations? This Article intentionally does not adopt a normative position in addressing this legal and practical quagmire. Rather, the overarching purpose of this Article is to serve as a future foundational resource for both actors in the criminal justice system and professionals in the problem-solving court domain to harness when inevitably confronted with challenges by participants seeking to use medical marijuana as a palliative for psychological or physical debilitating conditions while serving a probationary sentence in these specialized courts.

A broad public consensus has emerged over the past twenty years accepting marijuana (4) to be a safe drug and a valuable panacea for various physical ailments. Marijuana can be a useful palliative "in the treatment of many complex or rare conditions which lack effective options, or where the side effects burden of such treatments outweigh the benefits." (5) Policymakers have responded to this shift in public attitudes and cultural norms by enacting legislation expanding access to medical marijuana across the nation. In the scientific community, the evidence for using marijuana for therapeutic purposes remains underdeveloped and the benefits and risks remain incompletely understood. (6) This primarily results from the federal government's recalcitrance and continued stance on the illegality of marijuana as a Schedule I substance under the federal Controlled Substances Act (7) together with cumbersome, if not impossible, restrictions on the possibility for empirical studies to be undertaken regarding the potential therapeutic benefits of marijuana. (8) Nonetheless, as of this writing, thirty-seven states and the District of Columbia have passed medical marijuana laws through either ballot initiative or by legislative process. (9) In relation to the criminal justice system, the most salient feature unifying medical marijuana laws is the accompanying immunity for individuals from prosecution under state criminal laws for possessing and using medically approved marijuana. (10) As a consequence of the legalization of medical marijuana, courts are increasingly confronted with challenges to the general prohibition of marijuana use as a condition of criminal probation.

There is a strong correlation between the criminal justice-involved population and substance abuse and drug dependency. (11) Studies suggest that upwards of 70% to 80% of individuals involved in the criminal justice system have a substance use disorder. (12) In fact, the criminal justice system is currently the largest referral source for public drug treatment in the United States. (13) Therefore, it remains a common condition of criminal probation to prohibit an offender from using drugs or alcohol, particularly if their use is somehow related to their underlying criminality. (14) But due to the widespread legalization of medical marijuana across the United States, sentencing courts are increasingly faced with the decision whether to prohibit the use of medical marijuana as a condition of criminal probation. (15) The reported case law to date has not been entirely uniform in application. Some of the inconsistencies are dependent upon the specific provisions adopted by state legislatures in either their respective state constitutions or medical marijuana statutes. However, the developing trend appears to be that state courts are inclined to permit the use of medical marijuana during sentences to criminal probation, assuming various factors can be satisfied by the individual offender. (16)

During the same timeframe when the legalization of medical marijuana across the United States gained a foothold and general acceptance, the national criminal justice system became "not only larger, but also more legally hybrid and institutionally variegated than is sometimes recognized." (17) The bloating of the modern penal system has been frequently described as the expanded carceral state. (18) This carceral state "includes not only the country's vast archipelago of jails and prisons but also the far-reaching and growing range of penal punishments and controls that lie in the never-never land between the gate of the prison and full citizenship." (19) A prime example of the expanded carceral state has been the revolutionary rise of problem-solving courts generally, and in particular, adult drug treatment courts. (20) Described as a "national movement," (21) drug treatment courts have now become an integral component of the national criminal justice system. The first adult drug treatment court commenced operations in 1989; today there are no less than 4,000 drug treatment courts operating across the United States. (22) Drug treatment courts largely arose in response to a series of dynamic events: the failure on the War on Drugs; high recidivism rates among offenders; the general prison overcrowding problem; and the revolving door of justice whereby offenders with substance abuse issues repeatedly cycled in and out of prison, probation, or parole. (23)

Drug treatment courts focus primarily on providing offenders with severe substance use disorders various drug treatment therapies as an alternative to incarceration. (24) Drug treatment courts adopt an understanding that drug addiction is a medicalized disease which requires various behavioral and psychological treatment interventions. (25) In this sense drug treatment courts represent a move away from the purely retributive philosophy of the American criminal justice system dominating the three decades from the 1970s to the late 1990s, (26) and towards a seemingly more rehabilitative-minded penal system. (27) Nonetheless, it has been observed that because drug treatment courts still operate under the umbrella of the formal criminal justice system, the line between treatment and punishment is both blurred and indissoluble. (28)

Drug treatment courts are no doubt a specialized and intensive form of criminal probation (29) that specifically deals with offenders who have diagnosed severe substance use disorders, but it is nevertheless a form of probation. Most drug treatment courts across the country operate on an abstinence-based approach, prohibiting participants from using any drugs unless prescribed by a physician. Anecdotal evidence and news reports observe that drug treatment court judges are requiring prospective drug court clients to relinquish their lawful medical marijuana cards if they wish to partake in the drug treatment court program. The choice presented to potential participants is either to refrain from engaging in legalized and physician-recommended treatment or face prison. (30) As one individual reported to a news agency regarding the requirement that he either turn in his medical marijuana card to participate in a drug treatment court or to decline and face a prison sentence, he commented: "I have to choose between jail and my health right now. I have no option but to comply." (31)

To date there are no reported cases on the complex intersection between drug treatment courts and the protections afforded to qualifying patients under state medical marijuana laws for those on probation. It is inevitable and only a matter of time that future challenges will be brought before the courts questioning standard prohibitions preventing drug court participants from using lawful and physician- recommended medical marijuana while on this form of specialized probation. Excluding otherwise eligible offenders from participating in drug treatment court programs based solely on their lawful medical marijuana use may very well prove to be a violation of the immunity protections provided to qualifying patients under state medical marijuana laws.

The genesis for this Article stems from my ongoing years-long empirical case study of several drug treatment courts located in a western state (used generically here--and as required by applicable Institutional Review Boards (IRB) guidelines--as the "Western County Drug Court"). (32) During the course of my data collection efforts over the past few years, I have participated in both informal conversations and formal interviews with legal actors...