Marijuana law complicates treatment programs

“This morning, we had some people coming in who have improved their lives dramatically,” he said. “They have housing where they didn’t have housing. They are working jobs in the community. I was talking to one person and everything is going well in their life and treatment courts hooked them up with the resources that gave them the opportunity to do it.”

The drug treatment court has a proven record of helping nonviolent offenders address underlying substance-abuse issues and avoid a revolving door of jail and prison. But success is not absolute. Drugs and alcohol exert a powerful hold on some.

In fiscal year 2021, Buchanan County saw 130 treatment court participants, with 37 individuals graduating and 25 being terminated from the program, according to state data. The remainder are still in the program, which involves at least a year of intense probation supervision, drug testing and treatment.

For more than two decades, treatment court participants were required to stay off drugs and alcohol, but now the passage of Amendment 3 complicates what has been a basic standard. The constitutional amendment legalized recreational adult use of marijuana but it also placed new restrictions on judges.

Unlike alcohol or harder drugs, marijuana is now constitutionally protected. Under Amendment 3, a court is limited in its ability to prohibit a person from using marijuana as a condition of probation or pretrial release. That also impacts alternative sentencing or treatment programs.

“My assessment is right now that there’s still a lot of services we can still provide for people that have substance abuse issues, but right now the constitutional mandate does not allow us to sanction anybody for the use of marijuana, even if they’re on probation and a treatment court program,” Robb said. “That’s unfortunate because I think it makes it hard for us to require people to address the underlying substance abuse issue if we allow them to use marijuana.”

Amendment 3 makes it clear that a judge cannot prohibit cannabis use as a condition of probation or pretrial release or as part of an alternative sentencing program if a person has a medical marijuana card.

The section on recreational use isn’t as specific, but the language stating that “lawful marijuana-related activities cannot be the basis for violation of probation, parole or any kind of supervised release” is seen as tying the hands of judges.

One prosecutor, Eric Zahnd in Platte County, believes federal law still makes it possible to prohibit marijuana use, especially after a serious motor vehicle accident involving an impaired driver.

”Missouri judges prohibit drunk drivers from using alcohol every day, but Amendment 3 tries to tell judges they can’t prohibit high drivers from using marijuana, even when a high driver has killed someone,” he said. “Fortunately, federal law still prohibits possession of marijuana for any purpose, and everyone on probation, parole or in a treatment court must follow federal law. I don’t think voters really understood that not even Colorado or California wanted what Amendment 3 tried to do.”

Robb said judges, prosecutors and treatment professionals are working through the details of the 38-page amendment.

He said court officials aren’t panicking and understand that similar issues have come up in other states. But because an all-or-nothing approach to sobriety has worked in the past, it’s unfortunate that a new marijuana loophole might make it harder for those who want to get clean to successfully graduate from drug court.

“It’s going to be a thing we’re going to have to deal with,” he said. “It’s not going to be an easy task.”