Excerpted From: Michael D. Sousa, Foreshadowing an Inevitable Clash: Criminal Probation, Drug Treatment Courts, and Medical Marijuana, 56 Suffolk University Law Review 521 (2023) (438 Footnotes) (Full Document)

MichaelSousaDuring 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. 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 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 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 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.” 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. 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 together with cumbersome, if not impossible, restrictions on the possibility for empirical studies to be undertaken regarding the potential therapeutic benefits of marijuana. 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. 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. As a consequence of the legalization of 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. Studies suggest that upwards of 70% to 80% of individuals involved in the criminal justice system have a substance use disorder. In fact, the criminal justice system is currently the largest referral source for public drug treatment in the United States. 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. 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. 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.

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.” The bloating of the modern penal system has been frequently described as the expanded carceral state. 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.” 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. Described as a “national movement,” 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. 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.

Drug treatment courts focus primarily on providing offenders with severe substance use disorders various drug treatment therapies as an alternative to incarceration. Drug treatment courts adopt an understanding that drug addiction is a medicalized disease which requires various behavioral and psychological treatment interventions. 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, and towards a seemingly more rehabilitative-minded penal system. 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.

Drug treatment courts are no doubt a specialized and intensive form of criminal probation 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. 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.”

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”). 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 and drug treatment court professionals regarding the dynamics between legalized medical marijuana laws and the impact they may have on the quotidian operations of drug treatments courts. Not only are local problem-solving courts having internal deliberations on this very topic, but the issues are currently percolating at the national level as well. For example, in the summer of 2022 the largest nationwide conference for drug treatment court professionals dedicated several panels to the issue of medical marijuana and drug treatment courts.

My goal in this Article is intentionally not to adopt a normative position, but rather--and no less importantly--to provide a robust foundational scaffolding for future scholars, appellate courts, drug treatment courts, legal actors, and drug treatment court professionals to draw upon as a starting place for thinking about the adaptability of legal marijuana use in the drug treatment court domain. The contentions, arguments, and considerations raised in this Article presume that a probationer has a valid medical marijuana registry identification card resulting from a bona fide physician-patient relationship, and the individual is possessing and using marijuana in compliance with the respective state medical marijuana laws. Courts will not afford immunity protections to probationers who are in violation of the applicable medical marijuana laws or for the recreational use of marijuana in states where it has been legalized.

The Article proceeds as follows. Part II presents the reader with a generalized overview of the internal operations of drug treatment courts. Part III provides a contextualized historical discussion of the criminalization of marijuana at the federal level, culminating in the Controlled Substances Act of 1970 along with recent developments at the federal level seeking to harmonize federal law with state medical marijuana laws. Part IV summarizes the legalization of medical marijuana at the state level, most notably addressing the various statutory protections from criminal sanctions offered to qualifying patients using and possessing marijuana and how these protections apply to imposed conditions of probation. Part V details and surveys the existing case law on the interplay between legalized medical marijuana use and imposed conditions of probation, and in doing so typologizes the varied approaches taken by appellate courts on this issue to date. Part VI harnesses the material in previous sections--together with incorporating some of my empirical data collected over the past few years--to consider how medical marijuana may be incorporated into the drug treatment court regime, and what practical considerations and problems present themselves for drug treatment court professionals working in the field. Part VII provides a brief conclusion and offers some avenues for future study.

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As noted at the outset, the intended purpose of this Article is to serve as a foundation for scholars, courts, legal practitioners, and drug treatment court professionals to draw upon and to consider as the chatter surrounding medical marijuana and problem-solving courts continues to grow. The legal issues and practical considerations are wide in scope and thorny in application. When challenges to prohibitions on medical marijuana for those serving probationary sentences in these specialized institutions reach the courts, many jurisdictions may be prohibited from denying medical marijuana to drug treatment court participants. It is just as easy to envision the legal winds blowing in the opposite direction. Perhaps because drug treatment courts are inherently different than regular probation with institutional aims of treating participants with substance use disorders, future appellate courts may be receptive to relying upon the traditional reasonable relationship/nexus standard for assessing probation conditions and find that drug treatment court participants' past histories of substance abuse and criminality (whether related or not) establishes a basis for concluding as a matter of law that prohibiting medical marijuana is reasonably related to curbing future criminality. Time will tell and interested observers should stay abreast of legal developments to come.

In the predominantly abstinence-only model of drug treatment courts nationwide, proponents of this approach will have a difficult time and may fervently resist the introduction of medical marijuana as a therapeutic drug due to the present inability to regulate and monitor its actual use by participants. This concern and the potentiality of abuse for individuals who have already been diagnosed with severe substance abuse disorders is understandable and defendable. The ability to regulate smoked marijuana with any scientific precision may be years away, if ever. But even if drug treatment courts continue down the path of prohibiting the use of medical marijuana, it may be nonetheless imposed upon them in the future by appellate courts around the country that have generally protected the lawful use of medicinal marijuana for those on normal probation pursuant to the existing immunity provisions built into the medical marijuana laws.

In the meantime, future empirical research should be targeted to better understanding the interactions between drug treatment courts and medical marijuana use. Individual problem-solving courts experimenting in this regard should collect data on the outcomes for medical marijuana patients both during and after their tenure concludes in the drug treatment court program (successfully or not). Doing so could yield important longitudinal insights related to the permissibility of medical marijuana use in these specialized institutional spaces. Moreover, individual drug treatment courts should also collect data on the ways in which permitted medical marijuana use for a small number of participants affected programmatic functioning. On a broader scale, statewide or national surveys can be distributed by research teams to collect data on how different drug treatment courts across the nation approach medical marijuana use for their participants. In addition to quantitative efforts, qualitative studies can be undertaken by researchers to better understand the subjective experiences of both drug treatment court participants and professionals regarding medical marijuana use to gain a better appreciation for how this dynamic unfolds in situ.

While the legal issues and practical considerations remain brimming below the surface, the future clash is forthcoming and inevitable. All who have a vested interest in resolving these thorny matters now have a starting place in which to center their efforts moving forward.

J.D., LL.M., M.A., Ph.D. Associate Professor of Law, University of Denver Sturm College of Law.