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California: Medical Marijuana Law at Odds with Jail, Prison Policies

by John E. Dannenberg

The California Court of Appeals has held that because California’s 1996 voter-approved Medical Marijuana Program Act (Proposition 115) permits a citizen to possess marijuana for medical use, bringing medically-approved marijuana into a jail could not be punished as a felony under Penal Code § 4573.5 (which generally proscribes “drugs, other than controlled substances” from being brought into jails).

James Harris, whose doctor qualified him to use medical cannabis, surrendered himself to the Lake County Jail on charges unrelated to his marijuana use. He had previously written to county officials explaining that he would need his cannabis wafers and olive oil for his chronic pain, and asked for accommodation. However, when deputies booked him into the facility he was charged with and subsequently convicted of bringing a controlled substance into a county jail, a felony.

In tension were California’s Medical Marijuana Act (Health and Safety Code §§ 11362.5 and .7, et seq.) and the penal provision against bringing controlled substances into a jail. On appeal, the Court held that the evil intended to be controlled by the penal provision was illicit use of drugs in jail, while the Marijuana Act legalized state-sanctioned medical use of cannabis without regard to one’s criminal status. The appellate court noted that Harris’ conviction was for the limited act proscribed in § 4573.5, namely the bringing of such substances into a jail.

The Court first determined that marijuana was a controlled substance under California laws. Parsing § 4573.5, the Court then found that its reference to “any drugs, other than controlled substances” must mean that marijuana is not covered by that section, since it is undisputedly “controlled.” The appeals court rebuffed the state’s argument that permitting medical marijuana into jails would be an absurd construction of the competing laws, observing that the Marijuana Act itself announced the intent of the law to not subject such users to criminal prosecution or sanctions (H&S § 11362.5(b)(1)(B)).
The Court suggested that jail and prison authorities could use their rulemaking powers to craft appropriate regulations to accommodate medically needy prisoners without opening a Pandora’s Box of problems related to introducing marijuana into secure facilities. Accordingly, the Court reversed Harris' conviction. See: People v. Harris, 145 Cal.App.4th 1456, 52 Cal.Rptr.3d 577 (Cal.App. 1 Dist. 2006).

Separately, on January 16, 2007, the California Department of Corrections (CDCR) issued a memorandum to all staff warning them that because federal law prohibits the use of marijuana, and because federal law preempts state law, the CDCR would not permit any employee to be under the influence of medical marijuana while on the job. Any employee testing positive for marijuana, medical or not, would be disciplined.

Further, in a major blow to medical cannabis users, on March 14, 2007 the Ninth Circuit U.S. Court of Appeals affirmed the supremacy of federal drug law (the Controlled Substances Act) over California’s Medical Marijuana Act in a case involving a woman who used medically-approved marijuana to treat pain for her inoperable brain tumor. "The court has just sentenced me to death," said plaintiff Angel Raich. "My doctors agree that medical cannabis is essential to my very survival." See: Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007).

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Related legal case

Raich v. Gonzales