It was Bruce King, New Mexico’s famously folksy cowboy governor, who once told a legislator that a proposed amendment could “open up a whole Box of Pandoras.” And while King’s malapropism got the Greek mythology backwards (it was Pandora who opened the box), you get the point he was trying to make – namely that you really don’t know what will happen when you take the lid off.
Which brings us to the recent case in which state District Judge Lucy Solimon of Albuquerque ruled that a prisoner serving a sentence under what amounted to a form of house arrest for aggravated DWI couldn’t have his community custody status revoked for marijuana possession because he had a card issued under the state’s medical marijuana program.
It has been fairly standard procedure in probation cases for courts to prohibit use of alcohol and drugs as a condition of release, and after community custody officers found the marijuana they determined that Joe Montaño, 49, would have to finish his 90-day sentence inside the Metropolitan Detention Center. Solimon concluded otherwise. She ruled that under a 2019 version of the state’s medical marijuana law, formally known as the Lynn and Eric Compassionate Use Act, a person serving probation or parole “or who is in the custody or under the supervision of the state or local government pending trial as part of a community supervision program shall not be penalized for conduct allowed under the act.”
Montaño wasn’t awaiting trial. He had pleaded guilty. But he was under state supervision.
His lawyer, state Sen. Jacob Candelaria, D-Albuquerque, argues the ruling along with the language of the 2019 version of the statute has much broader implications – in other words, a lot more Pandoras flying out of that box.
He says the law applies to all medical marijuana patients in state custody – whether on probation, parole, or in the MDC or a state prison system. It is the responsibility of the county or state, he says, to pay for and administer medical marijuana the same way it pays for other medications.
Of course there are some differences. For example, with traditional pharmaceuticals, a physician typically prescribes a particular medication and dosage. FDA-approved drugs have undergone rigorous testing and trials. In New Mexico, a medical marijuana card that can be obtained by having a licensed provider attest that an applicant meets any one of 29 conditions is more akin to a card that lets you shop at the mall for whatever you and the cannabis seller agree is the best product for your condition – from smoking to edibles to topicals. Not to mention which “strain” might be best – anything from “Amnesia Haze” to “Grandaddy Purple.” Would the state be obligated to provide whichever one a prisoner has decided he or she needs?
An internet search finds any number of possible drug interactions between other medications and cannabis products. Who would sort all of that out for people in custody and under state medical care? When performing medical intake evaluation would the state or county be required to basically issue a card to a prisoner who wanted it and who might qualify?
The state had 104,655 medical cannabis enrollees at the end of 2020. The program has grown by leaps and bounds from one designed to ease the side effects of chemotherapy to one that now covers dozens of ailments. And according to Ultra Health, a major provider, “at the current rate the program is experiencing a net gain of more than 2,000 patients each month.”
Neither the state corrections system nor the Metropolitan Detention Center currently is in the business of dispensing medical cannabis products to inmates. But they are responsible for inmate and prisoner medical care, and that includes medications. At MDC alone the bill for medications was $746,000 in fiscal 2020.
There are about 7,000 prisoners “inside” the state’s prison system with thousands more on probation or parole. There are significant problems with contraband and smuggled drugs like Suboxone and Fentanyl already. The current prisoner population at MDC is about 1,100, with similar challenges.
Candelaria says the state and county should start developing policies that would allow the use of cannabis products by prisoners – provided by and at taxpayer expense. But there is still time to close this box of Pandoras. Lawmakers need to think long and hard about just how far they want to obligate the state and counties to go in allowing the use of or providing cannabis products to people in custody.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.