The West Virginia Supreme Court recently ruled that judges can prohibit offenders from using medical cannabis while on probation. The decision comes despite the state’s legalization of medical cannabis in 2016 with the passage of the West Virginia Cannabis Act.
The court ruled that a judge had not violated the rights of a Berkeley County man when he declined to allow him to use a medical cannabis card he obtained after being diagnosed with PTSD, WVNews reported last week. The court also approved the judge’s use of a 12-question vetting protocol as part of the decision-making process.
The probationer’s attorney, Berkeley County Assistant Defender Jonathan O’Dell, argued that the West Virginia Cannabis Act superseded a judge’s authority to impose a probation condition restricting the use of medical cannabis. Deputy Attorney General Andrea Nease-Proper, who represented the state in the case, argued that probationers are barred from violating state and federal law while on supervised release. Nease-Proper added that federal law continues to prohibit cannabis nationwide.
In an opinion written by Justice Haley Bunn, the Court determined that the state’s medical cannabis legalization statute “does not supersede or prevent a circuit court from requiring a probationer to refrain from using marijuana as a condition of his or her release on probation, even when the probationer has qualified as a ‘patient’ and obtained an identification card pursuant to the Cannabis Act.”
“Just as reasonable conditions restricting a probationer’s association with certain persons does not conflict with the Constitution’s guarantee of free association, prohibiting [the defendant’s] use of medical cannabis through a probation condition imposed pursuant to West Virginia Code § 62-12-9 does not conflict with [state’s medical marijuana law] and the ‘notwithstanding’ clause in the latter provision does not apply,” the court ruled.
Court Rules State Law Supports Cannabis Restrictions for Probationers
The decision noted that state law mandates that a “probationer may not, during the term of his or her probation, violate any criminal law of this or any other state or of the United States.” The opinion also notes that cannabis remains a Schedule I prohibited substance under federal law.
The Court also decided that judges have the authority to impose conditions restricting probationers’ conduct if those “conditions generally focus on goals such as rehabilitation, deterring criminal behavior, and protecting the public.”
“West Virginia Code § 62-12-9(a)(1) to (6) sets out mandatory conditions for probation, and West Virginia Code § 62-12-9(b) permits a circuit court to impose other conditions ‘which it may determine advisable.’ ... Imposing a probation condition pursuant to this authority does not criminalize the subject of the condition or otherwise conflict with statutes or even constitutional provisions providing that those activities are lawful. Courts regularly impose conditions on probation that forbid otherwise lawful conduct and even invade a probationer’s constitutional rights,” Bunn wrote.
The justice added that the West Virginia Medical Cannabis Act states that a patient cannot be “subject to arrest, prosecution or penalty in any manner, or denied any right or privilege ... solely [emphasis added by the justices] for lawful use of medical cannabis.”
But, “we disagree,” Bunn wrote. “Probation conditions generally focus on goals such as rehabilitation, deterring criminal behavior, and protecting the public. The consequences of violating a probation condition are not based solely on the conduct that caused the violation.”
“That conduct also must violate a parole condition, and the resulting penalty often relates back to the probationer's underlying crime. ... Because any sentence of confinement imposed for violating a probation condition by using or possessing marijuana would not be ‘solely for lawful used of medical cannabis,’ such a condition of probation does not violate the Cannabis Act,” the opinion reads.
The decision also notes that a 1976 West Virginia Supreme Court opinion permits a judge to impose “any conditions which he may deem advisable, but this discretionary authority must be exercised in a reasonable manner.”
“Thus,” Bunn wrote, “circuit courts have broad discretion to impose reasonable probation conditions.”
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