The Maricopa County Attorney’s Office, led by ardent weed opponent Bill Montgomery, is still prosecuting medical marijuana patients for extracts whose legality is under review by the Arizona Supreme Court, according to the Arizona chapter of the American Civil Liberties Union.
In a letter to Montgomery sent Thursday, the ACLU of Arizona said it had learned that his office has been “prosecuting or threatening to prosecute" licensed medical marijuana patients "for possessing cannabis products sold at state-licensed dispensaries.”
The civil rights organization demanded that Montgomery’s office immediately stop those prosecutions and threats.
Jared Keenan, the ACLU of Arizona’s criminal justice attorney who signed the letter, said that the civil rights group had confirmed two cases of medical marijuana patients in Maricopa County who were either being prosecuted or were threatened with prosecution.
One of the confirmed cases involved a woman who was offered a pre-indictment plea deal to enter the TASC Drug Diversion Program, Keenan said. Under that controversial program, which is run by a private contractor, defendants have to pay hefty program fees and successfully finish the program in order to avoid felony convictions.
TASC, meanwhile, reimburses the county attorney’s office for those clients, on a per-person basis that has added up to more than $1 million annually. Last August, a civil rights group sued Montgomery’s office for perpetrating a revenue-raising scheme through TASC that disproportionately penalized poor marijuana users.
The other confirmed case, Keenan said, involved a veteran who faced decades in prison for a vape pen.
These revelations come during a key moment for medical marijuana in Arizona, as the state awaits a decision from the Arizona Supreme Court on the legality of medical-marijuana extracts.
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On March 19, justices heard oral arguments in the case State of Arizona v. Rodney Christopher Jones, which centers on whether the 2010 Arizona Medical Marijuana Act covers marijuana extracts and protects patients that use products containing them, such as edibles, from arrest and prosecution.
In that hearing, which hashed over the finer points of marijuana use, an attorney for Yavapai County argued that the medical marijuana law did not extend to extracts of the plant. He cited varying definitions of marijuana products under state criminal code.
Jones is a medical marijuana cardholder who served more than two years in prison after being arrested in Yavapai County, which has earned notoriety for its crackdown on extracts including CBD oil, for possessing hashish that he had bought legally at a state dispensary. His attorney argued primarily that it would be illogical for the medical marijuana law not to cover extracts.
The Supreme Court typically issues decisions two to three months after oral arguments. In the intervening months, there’s no formal protocol for prosecutors to interpret the law in question one way or another.
Given the current legal uncertainty, Keenan suggested it made little sense for prosecutors to treat all marijuana extracts as illegal. “I think that the prudent path would be to not go after these people,” he said, calling it "striking" that some patients were currently being prosecuted.
Yet that’s exactly what Montgomery’s office is doing, even with the legality of those extracts up in the air.
Mikel Weisser, the state director for marijuana-advocacy group NORML, runs the organization’s hotline for Arizona. He regularly receives calls from people who’ve been arrested for marijuana possession, he said. Many of them are patients, and more than a handful have been in Maricopa County.
So far, out of 40 calls received, Weisser said he had identified seven patients arrested for marijuana extracts in Maricopa County. Five of those he said he had verified, and there were another 10 potential patients in the county he had not yet verified.
Weisser refers people to lawyers, including to Keenan and the ACLU of Arizona, so they can get legal advice.
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This latest round of prosecutions and threats caps a decade of staunch opposition by Montgomery to marijuana, for any use.
In 2010, he fought unsuccessfully against the Arizona Medical Marijuana Act, prior to voters' approving it. During a debate in March 2015, he linked the recreational use of marijuana with prostitution and the “litany of things that fall under the banner of a misguided notion of freedom.” And in 2016, he vocally opposed Proposition 205, a ballot initiative to legalize recreational marijuana.
Montgomery has been put on notice before for targeting medical marijuana patients. In 2014, the Maricopa County Superior Court issued an order that challenged his policy of going after patients. It declined to issue an injunction, however, because it declared that the medical marijuana law did not prohibit the use of extracts.
A spokesperson for the Maricopa County Attorney’s Office did not respond to a voicemail and an email seeking comment.