ACLU: Medical Marijuana Patients Denied Access To Work Release From Jail

Published: Tuesday, December 10, 2019 - 3:05pm
Updated: Wednesday, December 11, 2019 - 8:06am
Jimmy Jenkins/KJZZ
Sheriff Paul Penzone.

Attorneys for the ACLU of Arizona say Maricopa County Sheriff Paul Penzone can’t prevent medical marijuana patients from medicating while on work release.

Jared Keenan, an ACLU criminal justice attorney, said a handful of card-carrying medical marijuana patients have been barred from going to work while serving their jail sentences after testing positive for THC, the psychoactive compound in cannabis that makes users feel high.

In one case, a county inmate sentenced to six months in jail successfully participated in the work release program in accordance with a court order for 31 days until he was randomly drug tested and tested positive for THC.

Attorneys for the inmate, Jesse Conboy, argued in Maricopa County Superior Court that Conboy wasn’t using marijuana at the time but tested positive for residual THC.

“Mr. Conboy has not used marijuana once while participating in the work release program and any positive drug test is not a result of recent marijuana use, but rather is residual drug excretion of THC that remains in his system from use months ago,” attorney Norman Keyt wrote in an August filing.

Conboy proactively ceased using medical marijuana “to ensure compliance for the work release program, which apparently doesn’t allow participants to use marijuana,” Keyt wrote.

Keenan said that shouldn’t be a prerequisite at all.

The voter-approved Arizona Medical Marijuana Act protects card-carrying patients from being denied certain privileges.

In this case, participation in work release is one such privilege, Keenan said.

“The (Arizona) Medical Marijuana Act ... has a sweeping immunity clause that immunizes patients against penalty in any manner, which is quite broad, and also forbids the state and any state actor from denying a privilege, which work release would be, for their lawful use of medical marijuana,” Keenan said.

On behalf of Penzone, the Maricopa County Attorney’s Office claimed that the sheriff is well within his right to enforce rules for participating in the work release program.

Penzone made that choice to provide the best environment for inmates, Deputy County Attorney Joseph Vigil wrote.

“Because there have been issues with inmates on work release or furlough taking drugs when outside of jail and then having medical issue (sic) because of those drugs while in jail, the Sheriff’s Office conducts random drug tests of inmates,” Vigil wrote.

Virgil added that the sheriff has “exclusive” authority to operate county jails and the programs provided for those inmates, and that courts have recognized the sheriff’s role in determining which inmates are eligible for work release.

Vigil also cast doubt on whether Conboy’s positive tests for THC were the result of residuals given the amount of time between when he claimed to stop using his medicine and when he tested positive.

Keenan acknowledged Penzone’s duty to “make sure that his jail’s safe,” but said that doesn’t mean he can ignore a judge’s order to allow Conboy to participate in work release. And while patients are rightfully barred from using medical marijuana while physically in jail, there’s nothing in law to prohibit them from medicating outside of jail, Keenan.

As long as medical marijuana patients “have a statutory right to not be penalized for their lawful use of medical marijuana ... the sheriff can’t unilaterally disregard valid state statutes,” Keenan said.

A spokesman for the Sheriff’s Office declined to comment further citing the pending case.

The ACLU filed a public records request with the Sheriff’s Office in August requesting records about the sheriff’s policies regarding medical marijuana patients and the work release program. The Sheriff’s Office has not produced the records. The ACLU sent a follow up letter demanding records in November.

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