When the Colorado Court of Appeals ruled last week in People v. Watkins that Coloradans on probation do not have the right to use or possess medical marijuana, it shined a bright spotlight on the elephant in the room: when it comes to medical marijuana, legal doesn’t always mean legal.
The case issue is tied to the Supremacy Clause of the Constitution, which essentially says that federal law trumps state law.
When Colorado and more than a dozen other states legalized medical marijuana, they also invited the federal government to intervene. Sometimes it does so directly, by sending cease and desist letters to medical marijuana businesses that it judges are too close to schools, and sometimes it does so indirectly when state or local judges rely on federal law in ruling on drug cases, as just happened.
“The Court of Appeals got it wrong,” said Denver attorney Rob Corry. “This was a state case. The state is not a wholly owned subsidiary of the federal government.”
He said the Court of Appeals made the mistake of focusing almost entirely on federal law and ignored Colorado statutes that specifically address the issue of medical marijuana and people convicted of crimes.
Colorado law says no one may use medical marijuana while incarcerated and that those convicted of drug offenses need to re-apply for medical marijuana cards.
“If the Legislature had wanted people on probation to be prohibited from using medical marijuana, they would have addressed that,” Corry said. “The Legislature determined which people can and can’t use medical marijuana and they did not prohibit people on probation from using medical marijuana. It is by design that we want people on probation to have some measure of freedom and health,” Corry said, adding that for a lot of people, medical marijuana is an alternative to much more harmful–but legal–narcotics.
Corry said similar cases in Montana and California have been decided in favor of medical marijuana users. While he was not of counsel to the defendant in this case, he says he is working with a group, Sensible Colorado, to appeal for a rehearing of the case.
Corry is not alone in objecting to the ruling. An email from Legalize 2012, a group promoting the outright legalization of marijuana in Colorado:
“This ruling is a huge blow to medical marijuana patients statewide, many of whom will be forced off of their safe, effective and natural cannabis medicine and forced to use dangerous and expensive pharmaceutical alternatives. For many patients, cannabis is the only medicine that works for them, especially for patients who are using cannabis as a non-toxic alternative therapy to treat their cancer.
Previously, probation departments across Colorado had wide discretion into whether or not a patient on probation would be allowed to use their medicinal cannabis. With the Court of Appeals ruling, the ability of probation officers to address individual patient situations on a case-by-case basis has been eliminated and replaced with a statewide “Zero Tolerance” policy for medical cannabis use and probation.
“The ruling should not have come as a surprise,” said Mike Saccone, spokesperson for Colorado Attorney General John Suthers. “Probation is a privilege, not a right, and it can come with restrictions.”
“I am very disappointed in the ruling,” said Karen O’Keefe, state policy director for the national Marijuana Policy Project.
“There are no other medications that a court would rule a patient can’t have. States have the right to make their own criminal laws,” she said.
O’Keefe pointed out that 16 states have legalized medical marijuana, with about 29 percent of Americans living in medical marijuana states. “Polling shows that 60 to 80 percent of Americans think medical marijuana should be legal. It is only a matter of time until federal policy catches up with the people.”