Next month, the New Mexico Legislature is expected to consider legalizing recreational use cannabis. But many medical cannabis patients and patient advocates believe the state should solve problems with the state’s Medical Cannabis Program first. 

Many in the medical cannabis community have publicly expressed concerns about producer plant limits, social inequalities within the program and testing standards. But beyond those issues is the legal question of whether or not those who are incarcerated should be allowed to use medical cannabis with a medical professional’s recommendation. 

This year, New Mexico passed a sweeping bill that added protections for patients from getting fired or losing custody of their children to the state just for being a medical cannabis card holder. The new law also allows those in pretrial custody and those on probation or parole to use medical cannabis. Prior to the law passing, it was often left up to judges or probation and parole officers to make that decision. Now the issue is more straight-forward with an exception—house arrest. 

The law makes it clear that those awaiting trial or who are on supervised release can continue to use medical cannabis as long as they have a valid medical card issued by the New Mexico Department of Health. What’s not as clear is if inmates can have access to medical cannabis or if those who are technically incarcerated, but serving out their sentence at home, can have the same access to those on probation. At least one detention center in the state says medical cannabis use while incarcerated, whether at home or in a jail cell, is not allowed. 

The sponsor of the bill previously told NM Political Report the intention of the bill was to protect patients before or after serving jail time, not during. But now another lawmaker says “the law is the law” and that access should be for everyone who is approved by the DOH, regardless of whether they’re in jail or not. 

Custody is custody and the law is the law

Joe Montano has a checkered past and he’s not shy about talking about it. By his account, he’s spent almost more than 25 years, or most of his life behind bars. He’s gone to prison for both federal and state convictions. The latter includes seven DWIs with the most recent one in 2017. But Montano says he’s done drinking and is focused on running his restaurant maintenance and repair business. 

“I’ve changed completely, I’m a businessman,” Montano said. 

He said stage two liver fibrosis and his father’s death from alcohol are just two of the many reasons he doesn’t drink anymore. 

“Some people can drink, I just can’t,” he said. 

He is, however, a medical cannabis patient. A card holder for seven years, Montano said cannabis helps relieve the symptoms of his long list of medical conditions, including Hepatitis C, post traumatic stress disorder, bipolar disorder and a chronic back injury. 

Given the fact that Montano’s last arrest was the latest of many for drinking and driving, his charges and conditions of release were more severe. Instead of spending several hours in jail and being released on probation, Montano was sent to drug court, then Bernalillo County’s Community Custody Program or (CCP), which is essentially house arrest. When he’s released from CCP, he will still face about a year of probation. Those in CCP have an ankle monitor and submit to drug and alcohol screenings, but are able to live at home and continue working. But by all other accounts, Montano is considered incarcerated and under the same rules as those at the county’s Metro Detention Center. 

In a statement to NM Political Report, Bernalillo County Chief of Corrections Ralph Fernandez said when it comes to drugs and alcohol, CCP has the same policies for those in a physical jail cell. 

“While the Metropolitan Detention Center does not have [a] written policy regarding the use of medical marijuana for Community Custody Program inmates, our staff do advise those inmates that the use of medical marijuana is prohibited while on CCP,” Fernandez said. “This is because CCP participants are considered in jail custody and medical marijuana use is not prohibited in MDC.”

Montano said he didn’t think much about his medical cannabis in plain sight when a CCP officer paid him a visit. When the officer reported that Montano violated his CCP conditions Montano realized neither a state judge or CCP would allow him to use medical cannabis. 

Montano said he’s frustrated that other inmates are allowed opiate-based medication to kick their drug habits, but he’s not allowed to use medical cannabis for his long list of conditions. 

“How is it that a heroin addict is given an alternative to ease their pain?” he asked. “We’re paying our own way and they’re still getting free methadone out here, but we still have to pay for our medications.”

Earlier this year opioid abuse disorder was approved by DOH as a qualifying condition for medical cannabis. 

Montano said he was prescribed psychotropic drugs to treat his bipolar disorder, but that the drugs came with their own problems like rashes, incontinence and making it impossible for him to stand.  

“I didn’t want to take that medication because they gave me a pill and I couldn’t get up for five days,” Montano said. 

Now if Montano uses cannabis he risks further sanctions, including a longer stay in an actual jail cell. He said he spent almost a month at MDC his CCP officer discovered he had cannabis and Montano said he was only released when his sister asked MDC about when he would be able to leave. 

Given his criminal past, Montano may not garner much sympathy from the general public, or even from lawmakers who have mixed feelings about medical cannabis in the first place. But one legislator, who also has a personal interest in bolstering the state’s medical cannabis program before the state legalizes cannabis, said he thinks the law should allow people like Montano access to medicine the state has deemed a legitimate alternative to doctor-prescribed pharmaceuticals.

What’s the state’s role?

Sen. Jacob Candelaria, D-Albuquerque, has some hesitations about voting for legalization. He said he won’t vote to legalize recreational cannabis without a robust medical program or a provision that would expunge prior cannabis related convictions. 

Part of his motivation is also personal, as he is also a medical cannabis patient. 

“I use it to treat a chronic pain condition and I made the decision in consultation with my doctors,” Candelaria said. “We made the conclusion that I would rather use cannabis than use prescription opiates long term.” 

“That’s also why I’m so passionate about protecting our medical program,” he added. 

Candelaria was not familiar with Montano or his situation, but the senator said it doesn’t matter. 

“From a public policy standpoint, if this is a medical program, which I believe it is, as long as this gentleman is not driving under the influence of cannabis in a way that poses a threat to himself or others, I think he has a right under state law to continue using medical cannabis,” Candelaria said. 

Montano’s latest arrest did not include drug charges, although current road-side tests cannot detect the presence of cannabis specifically. 

But more generally, Candelaria said normalizing medical cannabis is long overdue. 

“People have a constitutional right to receive medical care while they’re incarcerated and if they have that right while they’re incarcerated they should have that right when they leave,” he said. “Should patients in prisons be able to access medical cannabis? I think absolutely they should.”

Montano said he reached out to DOH, but was told they cannot tell CCP or MDC how to run their program. 

But Candelaria also blames DOH for not taking a more active role in advocating for cannabis patients. 

Candelaria’s day job as a lawyer led to another instance that he said highlights how the Medical Cannabis Program could be more involved. 

Candelaria’s client is suing his former employers and business partners, alleging they fired him because he’s gay. In response, a lawyer for Grassroots RX filed a motion to dismiss the case, arguing that the business has less than 15 employees, so procedurally they cannot be sued for employment discrimination. DOH has stated in the past that they do not get involved with specifics of how each production company or dispensaries are run. 

DOH spokesman David Morgan said disputes between employers and employees are no different. 

“The New Mexico Department of Health’s Medical Cannabis Program has authority only to address issues between patients and licensed nonprofit producers (LNPPs),” Morgan said. “Any disputes between LNPPs and their staff are subject to state and federal labor laws.”

Candelaria said since every aspect of medical cannabis is regulated by the state and every person who touches medical cannabis has to be approved to do so by the state, he thinks the DOH should do more for patients like his client.  

Openly gay himself, Candelaria said it is “offensive” that DOH isn’t weighing-in on the issue. 

“I think the DOH should reconsider its position and should step up to the plate,” Candelaria said. 

Medical cannabis will likely be a hot topic during next month’s legislative session. This year has provided a flurry of rule changes and legal arguments concerning producer plant limits, whether medical cannabis cards are just for New Mexico residents and adding qualifying conditions for using medical cannabis. 

Gov. Michelle Lujan Grisham said earlier this year that she would add legalization to “the call” next year, or the list of approved topics that diverge from the budget issues that 30-day sessions are usually devoted to. Lujan Grisham and the DOH are also appealing a state court ruling that allows non-residents to obtain a New Mexico medical cannabis card, so it’s likely there will be an attempt to change the language in statute in order to limit the program to New Mexico residents or those who are already approved by another state’s medical cannabis program.