Living in Yavapai County, Arizona, a jurisdiction smack-dab in the middle of the Southwestern state, Rodney Jones obtained a medical cannabis card in 2012, two years after the passage of the Arizona Medical Marijuana Act (AMMA) legalized use for medical purposes.
In March 2013, he was arrested after being found in possession of 0.05 ounces of hashish, a resin extracted from the cannabis plant. A grand jury indicted him for possession of a narcotic drug and drug paraphernalia—meaning the mason jar in which the hashish was carried.
Jones argued that his hashish was authorized by his AMMA card. The jury disagreed, and he was sentenced in September 2016 to a total of three-and-a-half years in prison. After an appeal, and a similar conclusion in June 2018, his case arrived in the Arizona Supreme Court.
Oral arguments were conducted in March of this year, and now Jones’s case awaits the state Supreme Court’s opinion, which could determine whether cannabis extracts like hashish are covered by AMMA.
And the stakes are high: Maricopa County Attorney Bill Montgomery (pictured above) and Yavapai County Attorney Sheila Polk—two staunch opponents of AMMA—are leading the charge to prosecute medical marijuana patients, using an anomaly in state laws.
Currently, Arizona’s Criminal Code makes a “weird, antiquated distinction between cannabis and leaf marijuana,” said Jared Keenan, an ACLU of Arizona criminal justice staff attorney, in an interview with Filter. Possession of marijuana—which is defined in the Code as all parts of the plants “from which resin has not been extracted”—is chargeable with the lowest type of felony (Class 6), while extracts, like resins, are defined as “cannabis” and carry harsher punishments (a Class 4 felony). Yet according to the text of AMMA, both substances bifurcated by the Criminal Code are covered.
Additionally, a judge for the Maricopa Supreme Court found in 2014 that AMMA’s “decriminalization of marijuana for medicinal purposes includes extracts adapted from marijuana.” The case was filed after Montgomery threatened to prosecute Zander Welton, a five-year-old boy with severe epilepsy who was using marijuana extracts to improve his condition after two surgeries could not. The judge’s ruling extends only to Maricopa County. So why is Bill Montgomery still prosecuting these patients?
“Montgomery needs to know if the defendant is a patient, or Montgomery is violating state law.”
The Maricopa County Attorney’s office did not respond to Filter‘s request for comment by publication time. But from what Keenan knows, the County Attorney Montgomery is “claiming they don’t know if their defendants are patients,” which for Keenan is “obviously problematic.”
“Assuming extracts are in fact protected by AMMA, patients are protected from arrest and prosecution. So Montgomery needs to know if the defendant is a patient,” said Keenan, “or Montgomery is violating state law.”
Yavapai County Attorney Sheila Polk also continues to prosecute patients for extracts—even though Arizonans can buy them at most legal dispensaries in the state.
“It’s crazy that the Arizona Department of Health Services is telling dispensaries that they can lawfully sell this stuff and then prosecutors are turning around and prosecuting customers,” said Keenan. “The basic component of due process is that people understand what can happen” as a result of their actions.
Keenan has confirmed two cases of Maricopa County medical marijuana patients being prosecuted or threatened with prosecution. In one of them, Montgomery’s office threatened a medical marijuana patient with prosecution for a Class 4 felony of Possession or Use of a Narcotic Drug.
According to a letter sent by Montomery’s office that was obtained by Filter, the woman is offered two options: criminal prosecution, with the possibility of being sentenced to almost four years in prison and fined over $150,000; or participation in a one-year TASC Drug Diversion program, accompanied by mandatory drug testing.
The local TASC program has a troubling record, too. Run by a private contractor, the program was tied up in a class action lawsuit filed by a civil rights group against Montgomery’s office, alleging that the office used the program “to coerce as much money from participants as they can.” The participants were disproportionately poor marijuana users, according to the Civil Rights Corp complaint.
The other defendant facing prosecution by Montgomery is “a veteran who faced decades in prison for a vape pen,” as the Phoenix New times reported.
“The people cutting my hair were talking about the clientele outside the dispensary, the fact that they’re getting more and more crimes being committed in that parking lot. They’re afraid to even come out of their job.”
The Arizona Supreme Court could settle the debate over prosecuting medical card-holders found in possession of marijuana extracts in the next few months. Regardless of the court’s opinion, the clarification that extracts are indeed included in AMMA may be codified into state law. Republican state Representative Tony Rivero—who did not originally vote in support of AMMA—introduced such a bill to the House in February 2019. House Bill 2149 would redefine “marijuana” to include “cannabis” (resins), while removing the word “cannabis” from the Criminal Code’s sections on drug offenses and narcotic drugs.
Keenan is doubtful that this bill will pass. The last time it was considered was back in February, when it did make it through the Public Safety Subcommittee. Two Representatives voted against it, while another voted in favor but indicated a high chance that he would vote against it on the House floor. For them, marijuana use still seemed criminal in nature.
“I went to go get my haircut and they’re right next to one of these dispensaries,” said Republican Representative Anthony Kern, when justifying his vote. “The people cutting my hair were talking about the clientele outside the dispensary, the fact that they’re getting more and more crimes being committed in that parking lot. They’re afraid to even come out of their job. Tweaking the definition does a disservice to public safety, and a disservice to our constituents.”
If the Supreme Court and the legislature fail to decriminalize marijuana extracts for medicinal purposes, the ACLU of Arizona will still try to support patients. Keenan said that they may launch a public education campaign about the legal status of medical marijuana products.
“The sad things is, people don’t know [marijuana extracts are] illegal, so they openly tell police that they have the products,” said Keenan. “They purchased them in a dispensary, so when an officer asks if they have anything in the car, they would say, ‘Yeah, I just got marijuana wax from a dispensary.’ And then they get arrested.”
In the meantime, Keenan sent a letter to the Maricopa County Attorney’s office on April 4, putting Montgomery on notice.
He wrote: “Continued prosecution of qualifying patients undermines the will of the voters who approved AMMA, injects unnecessary confusion into the criminal justice system and harms vulnerable patients who seek relief through the controlled use of marijuana extracts to treat their debilitating medical condition.”