New York: Empire State NORML Files Suit Seeking Patients’ Access to Medical Cannabis While on Probation

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by Paul Armentano, NORML Deputy Director January 8, 2020

Empire State NORML and others are suing the New York State Department of Corrections and Community Services (DOCCS) so that qualified patients may access medical cannabis products while on probation.

The lawsuit – filed by NORML Legal Committee member David Holland on behalf of Empire State NORML, a nurse practitioner, and several state-registered patients – contends that the DOCCS and its subsidiaries are in violation of state law by prohibiting petitioners access to cannabis while they serve out their term of probation supervision.

Petitioners argue that the state’s medical cannabis access law explicitly forbids state officials from taking discriminatory actions against qualified patients. Petitioners reject the DOCCS’ claim that allowing medical cannabis use to those on probation will subject the agency to federal reprisals, such as the loss of federal funds.

Petitioners opine: “DOCCS’ reliance upon the safe harbor provision, … which does not compel an individual or entity to ‘act’ or otherwise take action which violates federal law or may cause the loss of federal finding, … is misplaced. Congress has passed legislative and budgetary appropriation measures restricting federal law enforcement from utilizing federal funds to enforce the federal Controlled Substances Act in New York and [in] the other 32 states that have legalized medical marijuana. These purposeful restrictions passed and imposed by Congress itself on the enforceability of the federal CSA against the investigation and prosecution of state compliant medical marijuana programs renders the federal law a nullity. … [Therefore,] Respondents … cannot properly rely upon the ‘safe harbor’ provision … as a means to strip Probationer Petitioners of their protected status under the Compassionate Use Act.”

Petitioners seek a declaratory judgment from the state Supreme Court against the DOCCS determining petitioners “rights and privileges under Public Health Law 3369(2).”

In Decembers, the Colorado Supreme Court upheld the right of patients to access medical cannabis products while on probation unless there exists material evidence to show that prohibiting such use “is necessary and appropriate” to accomplish explicit sentencing goals. Justices on the Supreme Court for the state of Pennsylvania are deliberating over a similar suit, and are anticipated to rule on the matter this year.

The case is Empire State NORML et al. v. New York State department of Corrections and Community Services et al. Additional information is available from Empire State NORML.