PA Justices Consider Whether Judges Can Stop Probationers From Using Medical Marijuana

May 19, 2020

In the Pennsylvania Supreme Court’s first live-streamed oral argument, the justices raised doubts Tuesday about whether state trial courts can ban people on probation from using medical marijuana.

The argument, which was carried out online to limit the spread of COVID-19, centered on a Lebanon County Common Pleas Court policy that would prohibit probationers from using medical cannabis, unless they can prove it is necessary for their health.

Courts typically impose conditions when someone convicted of a crime is released on probation instead of serving time behind bars. For example, probationers can be required to attend meetings with probation officers, pass drug tests, or get treated for substance use.

But Pennsylvania legalized the medical use of marijuana in 2016. And on Tuesday, American Civil Liberties Union of Pennsylvania attorney Sara Rose argued that the state’s Medical Marijuana Act grants patients “sweeping immunity” from criminal penalties for using the drug legally. She noted that Pennsylvania residents can get legal access to the drug only if they suffer from a serious medical condition and have been certified by a state-registered physician.

Rose represented three medical marijuana patients who are serving terms of probation in Lebanon County.

“Each has experienced substantial relief from their suffering due to the use of medical marijuana,” Rose said. “They are exactly who the legislators had in mind when they passed the Act.”

The statute itself says no one who obtains a medical marijuana card should face “arrest, prosecution or penalty in any manner, or [be] denied any right or privilege … solely for” the legal use or distribution of cannabis.

But the trial courts’ attorney, Robert Krandel, argued that the immunity is not as sweeping as Rose claimed. He said that judges, meanwhile, have broad authority to balance probationers’ health against other priorities, such as preventing future crimes or illegal drug use.

“The courts have to ensure that these petitioners get out of the criminal-justice system and are rehabilitated and ... become good citizens,” said Krandel, who serves as Legal Counsel for the Administrative Office of Pennsylvania Courts.

Rose countered, however, that the Lebanon County courts had not shown how restricting access to medical marijuana prescriptions would help to rehabilitate probationers and prevent them from committing future crimes.

Regardless, Rose noted, probationers could legally be penalized for violating the state’s medical marijuana law. "The important thing here is that as long as the person on probation is complying with the Medical Marijuana Act, then the trial court does not have discretion to penalize them or revoke their probation," she said.

By and large, Krandel faced more aggressive questioning during Tuesday’s argument. Several of the justices expressed concerns that the Lebanon County policy would give judges too much discretion.

Justice Debra Todd noted, for example, that the policy does not say whether the medical marijuana ban could apply to non-substance use crimes such as domestic violence. Justice Max Baer wondered, meanwhile, whether a court could stop a probationer who has cancer from receiving chemotherapy “if the chemo cocktail contains a schedule 1 drug” like marijuana, which is outlawed under the federal Controlled Substances Act.

Krandel noted that under the Lebanon County courts’ policy, judges could address Baer’s and Todd’s concerns at hearings where probationers could petition for permission to use medical cannabis out of “medical necessity.”

But justices Christine Donohue and Kevin Dougherty both worried that those decisions could be arbitrary, because the policy does not include criteria on how to prove medical necessity.

“I’m not certain exactly what that entails, other than bringing in a physician [to testify in support of the probationer],” Donohue said. "[U]nder what circumstances could anyone ever attempt to meet the standard, if it’s totally up to the unbridled discretion of the probation judge?”

Krandel said those factors remain unknown due to a lack of research on the medical uses of cannabis, and because the Lebanon County courts have little experience enforcing their medical marijuana policy.

Krandel noted that the state Supreme Court put the Lebanon County policy on hold when it decided last fall to intervene in the case, which had been filed in state Commonwealth Court, by exercising “king’s bench jurisdiction.” That power allows the justices to skip over the appeals process and take up a case immediately.

Krandel requested that “rather than throwing the whole [marijuana] policy out,” the high court offer guidance to trial courts “on how to implement these policies and help steer the policy.”