January 6, 2021

Incarcerated Patients Have A Right To Use Medical Marijuana, New Mexico Judge Rules

January 6, 2021
A New Mexico judge ruled that incarcerated patients have the right to use medical marijuana.

Marijuana for Incarcerated Patients 

A New Mexico judge has ruled that medical marijuana patients cannot be punished for using cannabis while incarcerated. In a potentially precedent-setting case, District Court Judge Lucy Solimon granted a motion for declaratory judgement and petition for writ for Joe Montaño, who was penalized after correctional officers discovered marijuana in his possession while serving a 90-day sentence in home confinement.

The judge said that New Mexico’s medical cannabis law broadly protects registered patients, and those protections extend to people serving time in jails or prisons. The correctional facility “shall comply with the Lynn and Erin Compassionate Use Act… and shall not penalize persons in custody or under the supervision of the Metropolitan Detention Center, including those in the Community Custody Program, for conduct allowed under the Lynn and Erin Compassionate Use Act,” Judge Solimon wrote on Tuesday.

That’s consistent with an amendment to the state’s medical marijuana law that was approved last year. It stipulates that a “person who is serving a period of probation or parole or who is in 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.”

Policy, Problems, and Pot

What remains to be seen is if correctional facilities statewide will voluntarily adopt the policy or if they will move to appeal the ruling. But Sen. Jacob Candelaria (D), who represented the defendant in the new case, told The Santa Fe New Mexican that he plans to send notices to those institutions.

“There’s no discretion under the Medical Cannabis Act. You must allow this,” he said. “While the criminal industrial complex may have pushback or some concerns, take those to the legislature. Because until such time as the legislature changes the law, the law is clear: You must under existing law provide incarcerated persons with the ability to access medical cannabis free from penalty. That’s the law,” he said.

The senator also told The Albuquerque Journal that government agencies should actually pay for the medical cannabis that incarcerated people use.

“I absolutely do believe that jail and prison facilities have the responsibility to provide that medical care if it’s ordered by a physician, period,” he said.

A state district judge in New Mexico has ruled that inmates and parolees have a right to use medical marijuana and that correctional institutions must provide access to cannabis to qualified patients, even if they are behind bars. Last week’s ruling from 2nd Judicial District Judge Lucy Solimon was entered in a lawsuit against Bernalillo County’s Metropolitan Detention Center brought by Joe Montaño, an Albuquerque resident who was convicted of drunk driving in 2019.

After Montaño was convicted, he successfully completed a court-ordered mental health treatment program and was allowed to serve a 90-day jail sentence under house arrest. Among the conditions for the sentence was a requirement that Montaño not use illegal drugs. After authorities learned of Montaño’s use of medical marijuana, he was jailed for more than 30 days for violating the terms of his sentence.

Attorneys for Bernalillo County argued that because cannabis is still illegal under federal law, Montaño’s use of medical marijuana “was a violation of law contrary to his agreement to comply with all city, county, state and federal laws and ordinances.”

Solimon ruled that as a qualified medical marijuana patient, Montaño had the right to use medical marijuana under New Mexico law. Montaño is represented by attorney and Democratic state Sen. Jacob Candelaria, who said in an interview with local media on Thursday that the ruling applies not only to those under house arrest or on probation, but also sets a precedent for all incarcerated individuals in the state who are qualified medical marijuana patients.

Moving Mountains with Marijuana

Duke Rodriguez, CEO and president of Ultra Health, New Mexico’s largest medical marijuana provider with 23 dispensaries in the state, praised Solimon’s ruling in the case and said that it upholds the intentions of legislation that legalized the use of medical marijuana in New Mexico in 2007.

“This is a major victory not only for Mr. Montaño, but for every medical cannabis patient in New Mexico and across the United States,” Rodriquez said in a statement from the company. “This ruling exemplifies the spirit of the Lynn and Erin Compassionate Use Act: that cannabis is medicine and every patient deserves the legal right to access their medicine.”

Candelaria said that he is prepared to file legal action against any correctional facilities that fail to implement Solimon’s ruling.  A spokesman for the attorney general’s office, which would defend the state in a potential lawsuit, declined to comment on any impending legal action.

“Our office doesn’t oversee state prisons, so that would probably be better answered by the Department of Corrections,” Baca said.

Candelaria said that attempts by jails or prisons to limit access to medical marijuana would be “disappointing, and the remedy will be more litigation.”

“As a lawyer, it’s not every day that a decision of this import and breadth happens in your career,” he added, noting the significance of the ruling. “This is a big one.”

Additional Resources:

At The Weed Blog, we strive to produce the latest online news resources regarding marijuana. We also review various strains of cannabis or other edible counterparts. We are committed to helping you find valuable information about marijuana on our website. With marijuana laws constantly changing, learn from us what you can do to promote activism in your area. Otherwise, consider these other top-tier articles regarding cannabis:

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The World Ranked By Marijuana Laws


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