New Mexico Judge Rules That Incarcerated Patients Have the Right to Use Medical Cannabis
A judge just ruled that correctional facilities cannot block patients' access to medical marijuana, and a state senator is ready to sue any jail that violates this ruling.
Published on January 4, 2021

New Mexico residents who are incarcerated, on parole, or on probation can not be punished for using medical cannabis, according to a new ruling by a state judge.

Last week, District Judge Lucy Solimon issued a final ruling in the case of Joe Montaño, an Albuquerque man who was jailed for using medical cannabis while serving a 90-day sentence under home confinement. In her decision, Judge Solimon ruled that the state's medical cannabis law allows patients access to their medicine even if they are in the custody of a correctional facility.

New Mexico's medical cannabis law, officially known as the Lynn and Erin Compassionate Use Act, does not address the issue of incarcerated patients. But in 2019, state lawmakers amended the law to stipulate that any “person who is serving a period of probation or parole or who is in custody or under the supervision of the state or a local government pending trial as part of a community supervision program shall not be penalized for conduct allowed under the Lynn and Erin Compassionate Use Act.”

Montaño was initially sentenced to three months of home confinement after being arrested for drunk driving in 2019. But during his house arrest, correctional officers discovered that he was using medical pot, and he was jailed for another 30 days. While imprisoned, Montaño nearly lost his business, but State Senator Jacob Candelaria stepped in and filed a motion on his behalf.

“There’s no discretion under the Medical Cannabis Act,” Candelaria explained in an interview, according to the Santa Fe New Mexican. “While the criminal industrial complex may have pushback or some concerns — take those to the Legislature. Because until such time as the Legislature changes the law, the law is clear: You must under existing law provide incarcerated persons with the ability to access medical cannabis free from penalty. That’s the law.”

Although the ruling only immediately applies to one individual, it sets a precedent protecting incarcerated patients' rights to use medical marijuana throughout the state. Correctional facilities still have an opportunity to overturn the ruling in an appeals court, but Candelaria, who is an attorney as well as a state senator, is prepared to wage legal battles against any institutions that continue to violate the law.

And not only does Candelaria believe that prisons should allow patients in their custody to use medical cannabis, he thinks they should foot the bill for their medicine. In an interview with The Albuquerque Journal, the senator argued that correctional facilities should cover the cost of any medical cannabis treatment ordered by a physician, just as they would cover any other medicine.

“This is a major victory not only for Mr. Montaño, but for every medical cannabis patient in New Mexico and across the United States,” said Duke Rodriguez, CEO and president of Ultra Health, a state-licensed medical cannabis company that assisted in the case, to the Santa Fe New Mexican. “This ruling exemplifies the spirit of the Lynn and Erin Compassionate Use Act: that cannabis is medicine and every patient deserves the legal right to access their medicine.”

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Chris Moore
Chris Moore is a New York-based writer who has written for Mass Appeal while also mixing records and producing electronic music.
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