Top State Court: Pa. Counties Cannot Bar Medical Marijuana to Those on Probation

The Pennsylvania Supreme Court ruled that the state’s recently enacted law allowing medical use of marijuana prevents counties from barring medical marijuana use by ex-inmates released on probation.

In the case of Gass et al., v. 52nd Judicial District, Lebanon County, brought as a class action by the American Civil Liberties Union on behalf three named probationers and any others similarly situated alleging they would be harmed by a new probation policy adopted in September 2019 by court and probation officials in Lebanon County.

Of the named plaintiffs in the case, one had been prescribed medical marijuana to treat severe epilepsy, another for chronic pain following an auto accident, and another for nausea and post-traumatic stress disorder.

The petitioners sought to declare unlawful and enjoin enforcement of the county’s policy flatly forbidding any use or possession of marijuana by those in its parole or probation system, even by those properly enrolled in the state’s medical marijuana program, created by the state’s Medical Marijuana Act (or MMA), passed by the state legislature in 2016.

The lawsuit challenged the policy adopted by court and corrections officials in the south-central Lebanon County, which did not allow any use of medical marijuana by persons in its parole or probation programs, even for persons properly enrolled in the state program created by the MMA.

Those probationers, even though they had been prescribed medical marijuana by a state-licensed physician for a specified serious medical condition and enrolled in a state-regulated program, faced being removed from probation and reincarcerated if they registered the presence of THC in any drug test administered as a regular part of the county’s probation program.

The county contended that its drug use policy was needed for the effectiveness of its corrections and rehabilitation programs. (Lebanon County was one of eight counties in the state with similar post-MMA restrictions.) When the policy was criticized, Lebanon County said it might allow a probationer the opportunity for an evidentiary hearing to try to persuade county officials of the medical necessity of treating his or her condition with medical marijuana.

The county also argued that, regardless of the state’s MMA, use or possession of marijuana remained illegal under federal law, due to its classification as a Schedule I drug under the Controlled Substances Act, and the county agencies were reluctant to knowingly undermine federal law.

The Pennsylvania Supreme Court’s unanimous decision, written by Chief Justice Thomas Saylor, found the county’s policy was in direct conflict with the MMA, which included a provision barring the “arrest, prosecution or penalty in any manner” of a person enrolled in the MMA program, based on that participation.

The opinion also noted that while the MMA barred use of medical marijuana inside corrections facilities, it contained no similar exclusion for former inmates who remain under supervision while released on probation.

While the state’s top court clearly held the county lacked any right to ban medical marijuana after the state legislature has authorized its use in this instance, it also noted that even with the MMA, courts and probation agencies can investigate and discipline probationers in the state medical marijuana program for misuse, the decision also noted.

About the Author

limmerlawScott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. He also represents students nationwide when they are charged with violations of their school’s code of conduct.

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