Do American and Canadian prisoners have access to medical marijuana?

In Advocacy, Feature Stories by Kay Mathews

You’re sick and need your medicine. But when you are prosecuted for a crime and sent to prison, you don’t have access to the medicine that helps curb your pain and lets you sleep peacefully. Your pleading goes unheard; sickness continues to ravage your body.

This scenario is familiar to any medical marijuana users incarcerated in North America.

Medical marijuana-using prisoners in Canada and the U.S. quickly recognize how medical marijuana rights don’t extend to prison cells, but Canada is slightly more favourable to med-cannabis users. Canadian prisoners have a right to certain forms of medical marijuana when it’s prescribed by a physician. But American prisoners, even in states where medical marijuana has been legalized, are denied access to the medicine because it is considered contraband.

CBC News highlights the case of medical marijuana user Mike Szymczak, a Hamilton, Ontario resident who was incarcerated for growing pot and denied medicinal marijuana while in jail.  Szymczak filed an affidavit against the Canadian government, arguing that his Charter rights were violated due to his unfair drug arrest and being denied medication while jailed, and as a “legal challenge against the federal government’s new medicinal marijuana laws.” The new rules, which went into effect in April 2014, call for licensed commercial growers of cannabis to be the only legal source of medical marijuana for patients.

Brian Carlisle, a British Columbia consultant, criminologist, and marijuana expert and researcher, helped Szymczak write the affidavit. Carlisle told The Medical Marijuana Review in an interview that Canadian “prisons cannot deny any medication prescribed by a physician. Once in prison, any prisoner has a right to it [medical marijuana]. This has been set in stone since the 1990s.” Carlisle continued. “No institution, not universities, prisons, or restaurants, can legally deny any Canadian who has a license to medical marijuana.”

The CBC News story quotes Andrew Morrison, spokesperson for the Ministry of Community Safety and Correctional Services, as saying, “If an inmate does have a need for any medication, the doctor can prescribe medications appropriate to a correctional setting, including an oral cannabis substitute in the case of medical marijuana usage.” When asked to clarify the term “oral cannabis substitute,” Carlisle stated that there are “several oral substitutes, including Cesamet (nabilone),” which is a synthetic cannabinoid for oral administration.

In the U.S., the law is much stricter. Medical marijuana-using Americans incarcerated in local, county, state or federal jails, detention facilities, or prisons do not have access to their medicine.  “To the best of my knowledge,” says Morgan Fox, Communications Manager for the Marijuana Policy Project, “there is not a single jail or prison in the country that allows patients to access medical marijuana while in detention. In many cases, post-detention parole/probation requirements also prevent patients from using their medicine, even in states where medical marijuana is legal.”

Fox points out that the unfortunate consequence of this policy is that prisoners are often left suffering, sometimes for years, with inadequate medical treatment. “Notable cases are those of Jonathan Magbie, whose incarceration in a DC jail left him without his marijuana or other medical care and led to his death, or Larry Rathburn, who walked into prison on a medical marijuana conviction and rolled out in a wheelchair. There are certainly more cases out there.”

Offering medical marijuana to U.S. prisoners remains off the table, despite 23 states and the District of Columbia having “comprehensive public medical marijuana and cannabis programs.”  Two of those states, Colorado and Washington, allow for recreational adult use of cannabis.

When asked about prisoner access to medical marijuana, Adrienne L. Jacobson, Public Information Officer for the Colorado Department of Corrections, replied, “Offenders incarcerated in the Colorado Department of Corrections do not receive medical marijuana while incarcerated, no substitutes are prescribed, and there are no circumstances under which an offender would receive medical marijuana while incarcerated.”

Asked why prisoners in a state that has legalized medical and recreational marijuana are denied the plant in prison, Jacobson explained, “Tobacco and alcohol are also legal but not permitted in our facilities or in any state building. Medical marijuana is like any pharmaceutical drug; in order to be dispensed it must be on our formulary. There are many other medicines which are not on our formulary and are therefore not dispensed, just as is the case when you have a prescription from a doctor that is denied coverage by your insurance company because it is not on their formulary.”

The situation is similar in the state of Washington and across the U.S. The Medical Marijuana Review wondered if prisoners with medical marijuana prescriptions receive marijuana while incarcerated, and Norah West, Communications Specialist with the Washington State Department of Corrections, replied, “They do not. Marijuana is considered contraband.  Marijuana in any form is considered contraband. That will continue to be the case.

“When anyone comes to prison, their medical history is evaluated,” West stated. “If there is a need, we will find a treatment for whatever medically necessary is needed. There are alternatives, but they do not include cannabis.” West also noted that medical marijuana is not a prescription, but a “recommendation.” As the National Conference of State Legislatures states, “Medical marijuana ‘prescriptions’ are more often called ‘recommendations’ or ‘referrals’ because of the federal prescription prohibition.”

What do relatives of inmates think about prisoner access to medical marijuana? Texas resident Kim O’Neal Reynolds has a son, Matthew Christians, incarcerated in the Ouachita River Correctional Unit, a facility within the Arkansas Department of Correction.

Kim O'Neal Reynolds

Kim O’Neal Reynolds

She supports medical marijuana use for people who truly need it. “But, as for its use in a prison, I am strongly against it. First, unless they have a terminal illness that keeps them segregated from general population, they have no business using it. Second, they could never be allowed out in general population due to the violence that would surround it. Prisoners are very unethical and would abuse the product, either by selling it or trading for favours.”

O’Neal Reynolds offered insight into how prisoners may be stripped of their medical marijuana license once sentenced. She said, “I spoke briefly to Matthew about medical marijuana use by prisoners or parolees. Matt told me they were informed by intake personnel that once you are active in their system, you lose that license and cannot partake for any reason.”

The Marijuana Policy Project’s Fox noted, “While detention facility administrators would likely say that allowing detainees to use medical marijuana would facilitate transfer to non-patients, you would be hard-pressed to find a jail anywhere in the country that was successful at keeping marijuana and other drugs outside its walls.”

When it comes to prisoner access to medical marijuana, one of the countries ahead of industrialized nations is Uruguay. As reported recently, in Uruguay prisoners can use medical marijuana if a doctor says it will benefit their health.

“So just like with normal citizens, prisoners will be able to get a prescription for marijuana from a doctor,” the report says. “And quite frankly, it makes sense: jails will likely become much more peaceful places with stoned, relaxed inmates. Cannabis equals reduced crime, and when you’re locked up for 5-10, smoking weed and reading books makes that time go a lot smoother.”

Despite any medical or peace-inducing benefits, prisoner access to medical marijuana is not likely to happen anytime soon in the United States. In the trailblazing state of Colorado, for example, there is no movement toward changing the laws to allow for medical marijuana use by prisoners. When asked if there are any Colorado legislators, advocacy groups, or prisoners with medical marijuana referrals trying to amend the law, Jacobson replied, “Not to my knowledge.”

As in the U.S., the number of medical marijuana users in Canadian prisons is unknown. Craig Jones, Executive Director of National Organization for the Reform of Marijuana Laws in Canada, wished The Medical Marijuana Review “good luck finding the data,” saying, “I’m not sure the data exists.” Health Canada’s Marihuana Medical Access Program was contacted and requested to provide statistics on the number of medical marijuana-using prisoners. A response was not received prior to publication of this story.

In the end, the question becomes: Why is prisoner access to medical marijuana important?  Brian Carlisle spoke passionately about the suffering patients. “Several conditions, like kidney failure and cancer, require medicines that are toxic. Medical marijuana is important because those patients can’t function without it.” Moreover, according to Carlisle, “This is a political issue when the focus should be medical. Research suggests cannabis is much more effective at much less cost [compared to pharmaceutical drugs].”

Flickr photo via seantoyer