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January 11, 2024 Winter 2024

Weeding Out the Prohibition: How Cannabis Legalization May Transform Probation and Treatment Courts

By Commissioner Casey Clevenger, Missouri JOL and Judge Kerry Meyer, Minnesota JOL

Since Colorado and Washington first legalized non-medical cannabis use in 2012, at least twenty-two states have followed their lead, with more states authorizing recreational marijuana every year.  With decriminalization comes tension between legal use and justice-involved citizens.   Recently Minnesota legislators specifically addressed the limits on cannabis use for people on probation and parole.  Missouri voters further limited judicial discretion in regulating cannabis use.  A comparison of the Minnesota and Missouri experiences in the legalization of cannabis, and its resulting impact on courts in each state, may provide judges and court staffs valuable insight into the potential effect of legal recreational marijuana use on a variety of judicial concerns, from the operation of treatment courts to the impact on impaired driving offenses.

In November 2022, Missouri voters chose by at 53-47% margin to amend the Missouri constitution to give residents a constitutional right to use, possess and grow cannabis.  Why a constitutional amendment?  In Missouri, a ballot initiative proposing a constitutional amendment requires signatures from only 8% of registered voters in two-thirds of the state's congressional districts.  Activated and encouraged when they successfully promoted and passed the amendment of the Missouri constitution in 2018 to legalize medical marijuana, cannabis proponents utilized the same flair in supporting the recreational initiative.

As a result of the voter initiative, the Missouri Constitution now severely limits a judge’s regulation of cannabis use by probationers and treatment court participants. The Missouri Constitution now states: "Registered qualifying patients on bond for pre-trial release, on probation, or other form of supervised release shall not be prohibited from legally using a lawful marijuana product as a term or condition of release, probation or parole. An alternative sentencing drug court program may not prohibit individuals under its jurisdiction from using a lawful marijuana product as long as the individual is a registered qualifying patient."

Pursuant to the language of the amendment, which went into effect in December 2022, treatment courts in Missouri are prohibited from imposing punitive sanctions for participants lawfully using cannabis. In March 2023, the first group of cannabis-using participants graduated from the treatment courts over which Commissioner Clevenger presides in the 13th Judicial Circuit. While permitting cannabis use remains contrary to the traditional model of abstinence that has historically represented a requirement for treatment court graduation, the recent cohort of graduates achieved all other objective commencement criteria - they obtained employment and housing, had no pending criminal charges and had reduced risky peer associations, engaged in pro-social activities and organized a satisfactory post-graduation continuing care plan, and the individuals posed no present, known risk to public safety. 

Minnesota treatment courts began addressing the issue of cannabis use among participants in 2014 when the legislature authorized medical cannabis for certain health conditions. At the time, Minnesota treatment courts permitted participants to use medication assisted treatment (MAT) but wrestled with the medicinal cannabis law. The medical registry and cannabis enrollment card operate very different from a traditional prescription with dosage recommendations. For the first several years, medical cannabis excluded combustible marijuana as a permitted form of use. When judges and programs permitted the use of cannabis approved by a doctor, program compliance requirements included proof of filled prescriptions for participants who tested positive for THC. Revisions to the medical cannabis law expanded the included medical conditions but also authorized smoking cannabis as a permitted use effective March 1, 2022. 

The parameters of medical cannabis use in Minnesota became less relevant when the 2023 Minnesota legislature legalized cannabis without a prescription, making Minnesota the twenty-third state to permit recreational use. The comprehensive bill built an entire government-regulated industry related to cannabis, hemp and their related products.

The Minnesota legislature considered input from the state’s DWI Task Force in crafting the provisions of the cannabis law relating to impaired driving. The cannabis impaired driving laws in Minnesota now mirror the alcohol  impaired driving restrictions with one exception – the legislature chose not to set a per se limit on marijuana. Thus, a DWI violation in Minnesota predicated on marijuana use requires proof of actual driver impairment.

The Minnesota cannabis bill also regulated court involvement in the use of cannabis by probationers and parolees and specifically sanctions the use of marijuana by persons on supervision to a degree more than ever permitted for alcohol use. The law related to the terms of probation provides:

(e) The court may prohibit a defendant from using adult-use cannabis … if the defendant undergoes a chemical use assessment and abstinence is consistent with a recommended level of care for the defendant …. The assessment must be conducted by an assessor qualified under section 245G.11, subdivisions 1 and 5.

(f) A court shall not impose an intermediate sanction that has the effect of prohibiting a person from participating in the registry program as defined in section 342.01, subdivision  63.

Minn. Stat. Sec. 609.135, Subd. 1 (e) and (f) (emphasis added). Similar provisions apply to inmates released from prison on parole. Minn. Stat. Sec. 244.05, Subd. 1d(b) and (c).

Under current Minnesota law, no requirement exists for an assessor to determine that alcohol abstinence represents a necessary condition of probation.  Judges in Minnesota, though, consistently exercise discretion and consider the facts of the underlying offense and the defendant’s criminal history when deciding whether to impose a probation condition of no alcohol use. Unlike alcohol, though, Minnesota courts lack the authority to prohibit use of cannabis without an assessor’s agreement.

The legislation also provides that the Minnesota cannabis medical registry overrides any other condition of supervision. There are currently nineteen categories of medical conditions approved for entry to the registry, including “chronic pain,” and no procedure exists to challenge a registrant’s status.

Courts faced with limitations on their authority to address the use of cannabis in the justice-involved population may consider the practices employed by the Missouri 13th judicial circuit - those who choose to consume cannabis while participating in treatment court receive education on the consequences of use, including the risks of cannabis impairment for activities such as operating a motor vehicle and parenting children. Some with a diagnosed cannabis use disorder choose to remain abstinent after identifying that their goals in sobriety more clearly align with abstinence, particularly after experiencing its effects. Others choose to continue consumption of cannabis, with the court monitoring for potential risks use may pose to public safety.

In Minnesota, treatment courts continue to adjust to the new law. While an assessment verifying high needs remains a requirement to be eligible to enter a program, the recent cannabis legislation now demands a specific assessment addressing cannabis use for those seeking admission to a treatment court. Whether eligibility for treatment court participation remains a possibility for those whose assessment does not recommend cannabis abstinence continues to evolve. Experience may portend the truth in the famous lyrics  – “If you cannot be with the one you love, love the one you’re with.” If marijuana was not the drug of choice before probation, the Minnesota legislation may result in cannabis use becoming the new choice for substance use while on supervision. Even with an assessment recommending cannabis abstinence, a participant could still enroll on the medical registry, prohibiting the court from regulating use.

With the landscape moving toward more states reducing judicial discretion on the regulation of cannabis use while on supervision, judges are encouraged to revisit ethical obligations and learn to operate within the new environment. While abstinence has long been the model in treatment courts, programs must re-evaluate policies to conform with the evolving legislative and Constitutional acceptance of cannabis use. Adopting policies that treat cannabis no different than other mood-altering substances recommended by a physician may become the new norm. An obvious reality, though, of the evolving cannabis environment remains the need for ongoing research to evaluate the impact of cannabis use on long term recovery and recidivism. Stay tuned.

Commissioner Casey Clevenger

Missouri Judicial Outreach Liasion

Judge Kerry Meyer

Minnesota Judicial Outreach Liasion

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