New Mexico Court certifies inmates’ rights to access medical cannabis

Bethan Rose Jenkins, Cannabis News Writer/Editorial

A cannabis patient who fought for his rights to use doctor-recommended medical cannabis in New Mexico has won his case in court. Based on a report by the Santa Fe New Mexican, Second Judicial District Judge Lucy Solimon ruled in favor of Joe Montaño on December 29, 2020.

Montaño had previously served a 30-day jail sentence for using medical cannabis while on house arrest. The New Mexican resident wound up in the sticky situation after getting caught drunk driving in 2019. The registered medical cannabis patient breached the terms of his 90-day house arrest when he used the federally illegal drug; of which was prescribed to him by a licensed physician.

Since New Mexico’s medical cannabis law grants people who are on house arrest, probation or in jail to access medical cannabis – so long as they qualify – Judge Solimon ordered Bernalillo County’s Metropolitan Detention Center to permit inmates access to their medicine.

New Mexico lawmakers approved 2020 bill permitting cannabis access for people in the criminal justice system 

In 2019, 12 years after the legalization of medical cannabis in New Mexico, lawmakers passed an amendment to the Lynn and Erin Compassionate Use Act that would enable state residents who are “serving a period of probation or parole or who is in the custody or under the supervision of the state or a local government pending trial as part of a community supervision program” to obtain and use the plant in its medicinal form.

“A 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,” reads an excerpt from the amended section of the Act states.

Soon after, the state Corrections Department issued guidance that informed registered patients who were on parole or probation of their ability to sidestep penalties, should they consume cannabis from legal avenues.

Bernalillo County attorneys stood firm against cannabis access for people in the criminal justice system

Despite the fact that medical cannabis in New Mexico has been legal since 2007, Bernalillo County attorneys argued that Montaño’s consumption “was a violation of law contrary to his agreement to comply with all city, county, state and federal laws and ordinances.” The attorneys drew attention to the fact that cannabis is still a federally illegal substance.

The attorney who provided representation for Montaño, State Sen. Jacob Candelaria (D), affirmed that, based on the ruling, there “is no discretion under the Medical Cannabis Act” pertaining to granting plant access for individuals in the state criminal justice system.

“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,” Candelaria said in an interview with The New Mexican.

Following Montaño’s successful court case, Candaleria made his intentions clear: the attorney and senator plans to urge the state’s jail’s and prisons to comply with the 2nd Circuit ruling. He made a point of noting that, in the event of jails or prisons going against his orders, “the remedy will be more litigation.”