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Medical marijuana creating dilemma for Arkansas courts

by Tracy Neal | March 2, 2021 at 9:12 a.m.

BENTONVILLE -- Arkansas' circuit judges are responsible for deciding whether people on probation may use marijuana for medical purposes, leaving judges to weigh the potential impacts on public safety and a probationer's health.

Benton County Circuit Judge Brad Karren has wrestled with the decision a few times in the past year. He recently had to decide whether a woman, who was pleading guilty to a drug crime, would be permitted to use medical marijuana while on probation.

Matt Reid, deputy public defender, represented the woman and told the judge his client already had a valid certification to use the drug.

Bryan Sexton, a deputy prosecutor, reminded Karren marijuana is still prohibited under federal law but noted the decision rests with the judge.

Sexton said parolees in the state are prohibited from using medical marijuana under an Arkansas Community Corrections policy in light of federal prohibitions.

Arkansas voters approved an amendment to the Arkansas Constitution legalizing medical marijuana in November 2016. The state's first legal sale of the drug was in May 2019.

The number of active medical marijuana ID cards as of Jan. 19 was 66,638, according to the Arkansas Department of Health's website.

Paul Armentano, the deputy director of the National Organization for the Reform of Marijuana Laws Foundation, said most state medical cannabis statutes don't explicitly address the issue.

"In a few states, like Pennsylvania and Colorado, the issue has been litigated and the courts have upheld patients' rights to access medical cannabis while on probation," he said.

Karren allowed the woman to continue to use medical marijuana.

Another person on probation last year wanted Karren's permission to get a card to use medical marijuana. He presented a doctor's statement to the judge.

"I'm not a bad person," the man said. "I'm not a drug addict."

The man told the judge using medical marijuana would help him because he suffered from post-traumatic stress. The man said he served in the military during the Persian Gulf War but didn't see combat.

A probation officer objected to the man being allowed to get the card. The man had pleaded guilty to a sex crime, and the probation officer said he was concerned because marijuana lowers inhibitions.

Deputy Prosecutor Brianna Robbins also objected to the man's request. She told the judge she didn't want to encourage the man to break federal law. She also said using marijuana could lower his inhibitions and increase the risk he would reoffend.

Karren denied that request.

Matt Durrett, the prosecutor for the 4th Judicial District, said his office leaves it up to the judges to decide whether a probationer is allowed to use medical marijuana. Durrett said his office hasn't received many requests concerning medical marijuana.

Probationers have been informed medical use of marijuana is up to the permission of the court.

"Our office has objected in some cases involving concerns to community safety, but, in most, we defer to the court noting the different approaches that ACC uses when we do," Sexton said.

Cindy Murphy, the communications director for Arkansas Community Correction, said the division of Community Correction only enforces the conditions set by judges.

"We defer to the judge to determine if the individual probationer is permitted to use medical marijuana while under supervision," she said.

Probation conditions are set by the court, not by the state, she said.

"The Division of Community Correction only enforces supervision conditions," Murphy said. "We do not set them. The parole board sets supervision conditions for parolees, and the sentencing court sets supervision conditions for probationers."

Jeff Rosenzweig, a Little Rock attorney, believes guidance from the Arkansas Supreme Court is needed because the federal government still considers marijuana illegal.

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