April 9, 2019

Interpretation of updated medical cannabis law could allow all inmates access

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Just days after Gov. Michelle Lujan Grisham signed broad changes to New Mexico’s medical cannabis into law, there are already questions surrounding whether inmates serving out sentences are allowed to use medical cannabis.

Senate Bill 406, which the governor signed last week, included protections against job termination and loss of child custody for merely being a patient in the program. A lot of those protections are already in practice, but not written into law—like whether those on probation or parole can be medical cannabis patients. According to a written Department of Corrections policy, probationers or parolees with a valid medical cannabis card will get a pass of sorts for testing positive for the substance.

Now, the law explicitly states that those on probation or parole are allowed to use medical cannabis. What’s less clear is if inmates serving out their sentence are allowed to use cannabis for about two dozen conditions. The portion of the law that applies to state or local supervision reads:

A person who is serving a period of probation or parole or who is in the custody or under the supervision of the state or a local government pending trial as part of a community supervision program shall not be penalized for conduct allowed under the Lynn and Erin Compassionate Use Act.

The biggest question comes from “who is in the custody or under the supervision of the state or a local government pending trial,” and if the law intends to allow all inmates the use of medical cannabis or just those who are awaiting trial and those on probation or parole.

If the state’s Corrections Department decides to allow all inmates access to medical cannabis, New Mexico could be the first state to do so through statute. Maryland’s General Assembly is considering a proposal to ban medical cannabis in correctional facilities. In Maryland’s case, legislation allowing medical cannabis did not address those in jail and prisons at all. Last year a Washington County sheriff asked lawmakers to clarify the law.

Just like any other medication

The sponsor of Senate Bill 406, Sen. Gerald Ortiz y Pino told NM Political Report he interprets the section regarding state supervision as only applying to those awaiting trial.

“The way I read it, while they’re awaiting trial if they’re held they can still keep using their medicine if they have a card,” Ortiz y Pino said. “After their sentence, then they would be subject to the same restrictions that anybody would be in jail or prison.”

But a high-profile, New Mexico cannabis producer disagrees with Ortiz y Pino and said the bill placed medical cannabis on the same level as a prescription medication. Duke Rodriguez, CEO of New Mexico Top Organics Ultra Health, said the state supervision section combined with wording in the new law that states, “A qualified patient’s use of cannabis pursuant to the Lynn and Erin Compassionate Use Act shall be considered the equivalent of the use of any other medication,” allows incarcerated medical cannabis patients the right to use the substance.

“Inmates, by law, must be provided reasonable health care by the state. If medical cannabis is a sanctioned activity by the state, then it seems logical by public policy that these inmates would have reasonable access,” Rodriguez said. “I’m not sure why there would be any confusion.”

A Corrections Department spokeswoman directed NM Political Report’s questions to Lujan Grisham’s office as Corrections does not have a permanent secretary. A spokesman for Lujan Grisham said neither he nor the Corrections Department could clarify whether the law would allow all inmates access to medical cannabis before publication.  

But Rodriguez said it is a matter of time before the issue comes to a head and state officials will have to address the issue.

“I think it is likely that a qualified patient, who is incarcerated, could make a more than reasonable argument that they have the legal right to cannabis while incarcerated,” Rodriguez said.

Jessica Gelay, New Mexico policy manager for the Drug Policy Alliance, said her group would like to see inmates have access to any needed medication, including cannabis, but also said she would leave it up to state officials to interpret the law.

“The Drug Policy Alliance firmly believes that people should not lose their rights when they are incarcerated and should not be prevented from using medicine that they need,” Gelay said. “Medical cannabis patients face discrimination in all walks of life, which is why protections are needed in policy in order to dismantle stigma and permit access.”

Other factors

Allowing medical cannabis in jails is a complicated issue. Cannabis is still a federally illegal substance for all purposes, though SB 406 set a tone normalizing medical cannabis use. Further, the New Mexico Corrections Department has a written policy for administering psychoactive drugs—a category that cannabis arguably would fall under.

And the Corrections Department will likely have to consider any consequences for denying inmates the use of what state law views as medicine, no different than benzodiazepines to treat anxiety or selective serotonin reuptake inhibitors to treat depression. Further, jails already use buprenorphine or methadone, both opioids, to help with opioid addiction. Last month the Medical Cannabis Advisory Board recommended both opioid and general substance abuse as qualifying conditions for medical cannabis. A new view on medical cannabis in New Mexico, combined with media attention on sub-par medical treatment for things like hepatitis C, may force the state’s hand in allowing cannabis in state run correctional facilities.

But Rodriguez suggests, it should not be controversial at all.

“This is not about inmates ‘smoking weed’ in the prison yard but about individuals having medical grade cannabis in clinically equivalent dosages,” Rodriguez said.