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July 11, 2011

Should a minor crime prevent offender from lawful use of medical marijuana?

The question in the title of this post is prompted by this interesting local piece out of Michigan, which is headlined "Judges snuffing out probationers’ medical marijuana," and begins this way:

Medical marijuana users who run afoul of the law are discovering probation is an antidote to their certification cards.

An Adrian man was warned against applying for a medical marijuana card when he was placed on probation Thursday for a cocaine offense.  Growing and using marijuana is still against federal law, said Lenawee County Circuit Judge Timothy P. Pickard.  And the state medical use program does not seem to be restricting certification to the seriously ill.

“I don’t buy it,” Pickard said during the sentencing. “It seems to be an excuse for everybody to light up and smoke dope.” Pickard, Lenawee County’s chief judge, said Friday the courts have no policy ruling out all use of medical marijuana for people on probation. But he has to be convinced there is a legitimate need, he said.

Regulations written by the state after a medical marijuana ballot proposal was passed by voters in 2008 do not require a prescription. Citizens can apply for certification cards with only a signed statement from a physician saying it may benefit their medical condition.

Probation terms can restrict otherwise legal behavior, Pickard said, such as drinking alcohol or associating with people having felony records. And it would be difficult to excuse violating federal law by growing and using marijuana while on probation.

Pickard said he will still consider approving medical marijuana use for probationers whose convictions are not drug-related and who can show evidence of a serious medical condition that can be treated with marijuana. If those conditions are met, “I’m fine with it,” Pickard said. “That doesn’t seem to be the case. I haven’t seen that yet.”

A similar approach is being followed in district court, where offenders frequently are required to surrender medical marijuana cards as a condition of probation. Chief probation officer Tony Gonzalez said district court has no written probation policy on medical marijuana. Judges review it on a case-by-case basis, he said. “We’re taking a hard stance on it,” Gonzalez said. “If they’re just going out shopping for it, we tell them no.”

The Michigan Depart­ment of Corrections also has no written policy on how medical marijuana should be addressed for offenders placed on probation, said department spokesman Russ Marlan. “We certainly would never make a recommendation that somebody do that,” Marlan said. But it is left to local judges to decide if medical marijuana is prohibited as a probation term.

July 11, 2011 at 08:48 AM | Permalink


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Out of curiosity, and perhaps an aside from the legal arguments about medical marijuana: Why is marijuana legalized only through "pot shops" and not through a vigorous FDA-approval process that 99.99% of other drugs are subject to? In addition, why is marijuana the only "legal drug" that is primarily smoked, and not ingested?

Posted by: Eric Knight | Jul 11, 2011 9:29:46 AM


And judges should start to recognize that the Commerce Clause does not give Congress the authority to regulate the purely interstate production, possession, and distribution of marijuana.

To Eric Knight: Marijuana is legalized only through pot shops and not the FDA because Congress, by fiat, placed marijuana in Schedule I of controlled substances, meaning that by definition it has a high potential for abuse, no accepted medical use, and there is a lack of accepted safety for use of the drug under medical supervision. Even if the FDA disagreed, it is the DEA that would have to reschedule the drug, and the DEA has refused to reschedule it, in spite of mountains of evidence that it should not be in Schedule I and probably should not be a controlled substance to begin with. So marijuana is not legal, even if sold through pot shops. States choose to allow it, but Congress has decided that states have no business regulating something like marijuana. So its sale through a pot shop may be legal under state law, but not under federal law.

Posted by: Anonymous | Jul 12, 2011 12:14:38 AM

Thank you anonymous. Perhaps I'm a bit of a simpleton in that if there is a medical value for a drug, then it would have been approved. I have heard that if aspirin would have had to go through a rigorous FDA approval process, that too would not have been approved, so even that reasoning strategy is questionable. Oh, well, let the lawyer types rather than the doctors determine how healthy we should all become.

Posted by: Eric Knight | Jul 12, 2011 1:48:20 PM

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