In the wake of Ohio’s new adult-use cannabis law that came into effect in December, advocacy groups and legal professionals intensify efforts to address the injustices stemming from wrongful cannabis criminalization.
Last week MedicateOH reported the news of the first appellate victory in Ohio for a medical marijuana user on probation. The case, State v. Lynn, highlights how attorneys and advocacy groups may now be better positioned to petition judges under the new adult-use law.
Legal Victories and Advocacy Efforts
MedicateOH spoke with Stephen Post from the Last Prisoner Project, who emphasized the importance of taking actions to rectify the harms caused now that adult-use is the law here. Post said, “What we’re really focused on in Ohio is trying to engage the public and letting them know that there’s still actions that need to be taken in order to redress the harms of the past cannabis criminalization in Ohio.”
Since 2018, all of the 13 states except Ohio that have legalized cannabis have included record clearance policies. And since 2021, they have all been automatic. Despite legalization, Ohio did not incorporate any record clearance policies. “Usually the petition isn’t put on the individual and it’s rather done via the state,” Post said. But Ohio’s current policy makes it necessary for attorneys to intervene.
The Last Prisoner Project
Post highlights the story of Harold Thomas, incarcerated since 2015 despite the legalization of medical and adult-use cannabis in Ohio. This case exemplifies the urgency in addressing the plight of individuals still in prison for cannabis-related offenses. The Last Prisoner Project aims to gather accurate data on the number of incarcerated individuals in Ohio due to cannabis offenses, emphasizing the need for comprehensive criminal justice reform.
“We are working on trying to get better data on those numbers. Criminal justice reform data is always hard to come by for a variety of reasons, namely police departments, not always reporting and things like that. We did recently see a report from the DRC that at least 130 folks had been in for cannabis trafficking in some form, and I think that’s a highly undercounted number.”
Join the fight or donate to the cause at LastPrisonerProject.com.
Attorney Calls for Potential Clients
Attorney David Patton of the Patton Law Firm in Solon, Ohio recently litigated State v. Lynn in Ohio’s 5th district to a victory and now wishes to test the MMJ patient/probation issue pro bono in the other 11 Ohio appellate districts.
Patton notes that the Lynn decision was judged using the standards from State v. Talty to support his arguments. Talty is a 2004 Supreme Court of Ohio case that addresses the legal limits of community control conditions. Lynn held that a trial court violatesTalty when it forbids a MMJ patient/probationer to lawfully use MMJ in a non-drug related case.
Patton’s aim is to call out judges who openly oppose Ohio’s MMJ program in their refusal to enforce state laws. Patton’s MMJ advocacy comes as the father of an epileptic child who uses cannabis as medicine to control his seizures. His fight has spanned more than a decade, litigating one of the first medical marijuana cases in Ohio history (State v. Hutchings, 2014-Ohio-4675 (Ohio Court of Appeals (8th Dist.) 2014).
Judges Publicly Disagree with MMJ Law
Patton notes some of the Ohio judges who have publicly disagreed with the Ohio MMJ Program and have refused to enforce Ohio’s MMJ laws: State v. Ryan, 11th Dist. No. 2021-L-032, 2021-Ohio-4059, ¶ 28 (Trapp, J.), State v. Sanchez, Cuyahoga C.P. No. CR-18-625480-A (Mar. 9, 2020) (Matia, J.), 8th Dist. No. 1096873, 2021-Ohio-1593, ¶ 9 and State v. Forro, Portage C.P. No. 2020 CR 00337 (Jan. 31, 2022) (Doherty, J.).
In the 2022 Forro decision, the judge in the case, Rebecca L. Doherty, displayed a sign in the courtroom during the proceeding that read, “MARIJUANA IS STILL ILLEGAL”. (See photos below.) Judge Doherty notably made the news in 2019 when she plead guilty to driving and causing a crash while she was under the influence of alcohol. Judge Doherty spent three days in Portage County Jail after Judge Kevin T. Poland sentenced her to 180 days in jail, but suspended 177 of those days.
At a January 31, 2022 hearing in open court on the record, Judge Doherty said of the petitioner, “I don’t want a medical card. A medical card means nothing to me.”
Patton poses the question in response: “Could you imagine a judge saying ‘I don’t want a drivers’ license, a drivers’ license means nothing to me’? He further explains that MMJ cards have the seals of 2 Ohio executive branch agencies as self-authenticating, legally operative documents that carry the full force of law. To say “an MMJ card means nothing to me” is nothing less than judicial tyranny and rebellion against the legislative branch that created Ohio’s MMJ program and the executive branch that implemented the MMJ program, says Patton.
Ohio MMJ Card Must Mean Everything to a Judge
Ohio Adm.Code 3796:7-1-01(E) provides: “‘Registry identification card’ collectively refers to cards issued by the state Board of Pharmacy as evidence that an individual is registered as a patient or caregiver.” Under the regulations promulgated by the executive branch, an Ohio MMJ card must mean everything to a judge. As Patton further explains, Ohio’s judges have 2 choices with respect to the MMJ issue: (1) issue a judgment entry declaring Ohio Revised Code 3796 and Ohio Administrative Code 3796 unconstitutional for violating the U.S. Constitution’s Supremacy Clause, or (2) recognize, follow, and enforce Ohio’s MMJ laws.
Judges may NOT use their elective office to advance their own personal policy preferences. Elected officials in the legislative and executive branches MAY use their elective office to advance their own personal policy preferences. Of the three branches of government, the judicial branch is the only one where the office holder’s personal policy preferences are supposed to be irrelevant.
Says Patton: “I predict that if an Ohio trial court or intermediate appellate judge declared Ohio’s MMJ program unconstitutional in violation of the Supremacy Clause, the Supreme Court of Ohio would quickly review the case and reverse.”
Who Might Be a Potential MMJ Pro Bono Client?
Patton outlines specific criteria for potential pro bono clients aiming to challenge courts that deny MMJ patients the right to use cannabis during probation for non-drug-related offenses:
a. Are currently lawful Ohio medical marijuana patients;
b. Were found guilty of NON-drug related crime(s);
c. Were sentenced to community control (i.e., probation) and NOT incarceration; and
d. The sentencing court has refused–or would be expected to refuse–the probationer’s motion to lawfully use MMJ while on probation.
Have a case that fits this criteria? Reach out to the Patton Law Firm at (216) 513-6871 or david@lawpatton.com.
Navigating the Road to Criminal Justice Reform
As Ohio grapples with the aftermath of cannabis criminalization and the implementation of new adult-use laws, advocacy groups, legal professionals, and experts are joining forces to champion cannabis justice. The push for automatic record clearance, new state-initiated legal measures, and litigation in support of MMJ patients on probation reflects a broader commitment to rectifying historical injustices.
The Ohio State University Drug Enforcement and Policy Center (OSU DEPC) will tackle this issue in an upcoming webinar. The webinar, titled “Implementing Issue 2: Criminal Justice Reform After Marijuana Legalization,” is scheduled for January 31, 2024, noon to 1:15 p.m. It aims to explore how Ohio should approach criminal justice reform following the legalization of marijuana under Issue 2.
Jan. 31st OSU DEPC Webinar Details
The OSU DEPC webinar will address various aspects of criminal justice reform, including bail, parole, sentencing, expungement, legal aid, and community policing. The discussion will offer insights into lessons learned from other states and the unique challenges Ohio may face in implementing effective reforms. Advocates hope to mitigate the direct and collateral consequences of past cannabis offenses, aligning with the broader goals of criminal justice reform.
Register for the OSU DEPC Webinar : Implementing Issue 2: Criminal Justice Reform After Marijuana Legalization
The conversation around criminal justice reform in Ohio continues to gain momentum, emphasizing the need for comprehensive and equitable changes in the legal landscape. Subscribe to MedicateOH to receive our continuing coverage on this topic weekly in your email inbox.
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