Judges are not Doctors: Why the ACLU is Challenging a Ban on Medical Marijuana for People on Probation

Melissa Gass (left) and Ashley Bennett talk with reporters on Tuesday after the ACLU-PA filed its lawsuit against the Lebanon County court

Melissa Gass has experienced daily, life-threatening seizures since she developed epilepsy at age 10.  Ashley Bennett has endured symptoms of PTSD from repeated childhood trauma, and Andrew Koch has suffered debilitating pain since his hand and vertebrae were crushed in a car accident. Each of them found relief thanks to medical marijuana, and since Pennsylvania passed a law allowing people with their conditions to use the drug, they have been able to use it legally. 

Medical marijuana has transformed their lives, allowing them to work and care for their children. It has also allowed them to stop taking prescription medicines that made it difficult for them to function or were highly addictive. But the Lebanon County Court of Common Pleas has taken this life-altering remedy away, telling them they can no longer use medical marijuana because they are on probation.

The problem with the court’s policy is not just that judges are substituting their opinions for that of patients’ doctors, which is bad enough, but that it disregards the broad protections that the General Assembly provided to medical marijuana patients when it passed the state Medical Marijuana Act. The Act protects medical marijuana patients, as well as their caregivers and doctors, from:

arrest, prosecution or penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by a Commonwealth licensing board or commission, solely for lawful use of medical marijuana or manufacture or sale or dispensing of medical marijuana, or for any other action taken in accordance with this act.

The law clearly protects medical marijuana patients from being denied probation, which is considered a privilege in Pennsylvania. So threatening to revoke a person’s probation if they lawfully use medical marijuana under state law—which is what the Lebanon County court has done—violates the law.

That’s why we sued the 52nd Judicial District, which includes the Lebanon County Court of Common Pleas and its probation department, on behalf of Melissa, Ashley, and Andrew, and asked the Commonwealth Court to stop it from enforcing its policy against our clients and all other medical marijuana patients in the county.

Under Pennsylvania law, probation conditions must be reasonably related to the rehabilitation of the defendant. If they are not, the condition is illegal and cannot be enforced. There is no basis, either in law or common sense, to deny people medicine that the state has recognized as a legitimate treatment for their medical conditions. In fact, it goes against the goals of rehabilitation, making it more difficult for our clients to work and care for their children. It will also lead people in severe pain, like Andrew, to use far more dangerous and addictive opioid medications, which the court has no policy against.

Pennsylvania has set up a comprehensive program that makes it possible for people with serious medical conditions to use a treatment, medical marijuana, that has been proven to alleviate their symptoms without fear of being arrested, denied probation, or losing custody of their children or their jobs. Pennsylvania courts have no authority to prohibit people from using a lawful medication simply because they disagree with the legislature’s decision. Judges are supposed to apply the law, not violate it.

Allegheny County District Attorney Stephen Zappala Lets Down Voters. Again.

by Danitra Sherman and Tim Stevens

In the weeks leading up to Allegheny County’s municipal primary elections in May, the ACLU of Pennsylvania partnered with a number of community groups for a candidate forum intended to give the public an opportunity to hear from District Attorney Stephen Zappala and challenger Turahn Jenkins.

The event was an opportunity for Mr. Zappala and Mr. Jenkins to share their respective visions for how best to reform criminal law in Allegheny County, from the use of cash bail to prosecuting police violence to making the DA’s office more transparent to the public.

Mr. Jenkins attended the event. Mr. Zappala did not.

Asked by local media why he did not attend the forum and meet with voters, Zappala singled out the ACLU of Pennsylvania, saying, “I’m not interested in talking politics with the ACLU or socialists.” Mr. Zappala went on to say that he would only be interested in debating his challenger in a “legitimate forum,” like one organized by the League of Women Voters.

Six months later, with Election Day less than a month away and with Mr. Zappala facing another challenger, Lisa Middleman, the ACLU of Pennsylvania has again teamed up with community groups to host a candidate forum and give the public a chance to hear from both Mr. Zappala and Ms. Middleman. The group leading the organization of this forum? The League of Women Voters of Greater Pittsburgh.

Alongside Pittsburgh UNITED, the Black Political Empowerment Project, and the ACLU of Pennsylvania, each candidate was given ample time to consider the invitation to meet with voters. As of today, Ms. Middleman has confirmed that she will attend the forum. Mr. Zappala has made clear that he has no intention of doing so.

It’s unclear why Mr. Zappala has such antipathy for engaging with his constituents. But we have a few guesses.

Perhaps Mr. Zappala still has no answer for why his office didn’t call a use of force expert in the murder trial of Officer Michael Rosfeld, who was ultimately acquitted in the killing of Antwon Rose II.

Maybe Mr. Zappala is nervous that he will have to defend the fact that 81% of the population of Allegheny County Jail has not been convicted of any crime. Mr. Zappala has made assurances that he is committed to reducing the use of cash bail and pretrial detention, yet his solutions consistently miss the mark.

Mr. Zappala may also want to avoid conversations about why the population of Allegheny County Jail is 60% Black, even as the population of Allegheny County is only 13.4% Black.

Or, it’s possible that Mr. Zappala was well-aware that a news story was about to break regarding his office’s incarceration of four teenagers for over a year for a crime that there was clear evidence that they did not commit. When pressed by reporters as to who was to blame, Zappala said that the wrongful detention was “… my responsibility, I guess.”

Mr. Zappala positions himself as a criminal justice reformer committed to reducing incarceration in Allegheny County. His record demonstrates otherwise.

We are disappointed that Mr. Zappala has again declined to participate in a debate regarding his record, despite promising to do so should the League of Women Voters organize that debate. A healthy democracy depends on open and transparent discussion of the issues facing the community which a candidate hopes to represent.

It is not Mr. Zappala’s prerogative to pick and choose when he deigns to interact with voters. It’s his job and the job of any elected official. At the very least, Mr. Zappala owes his constituents an honest, public accounting of his office’s record.

By again refusing to attend a public forum ahead of Election Day, Mr. Zappala is robbing voters of that opportunity while injuring the democratic institutions of Allegheny County.

Danitra Sherman is the campaigns director at the ACLU of Pennsylvania.

Tim Stevens is the chairman and CEO of the Black Political Empowerment Project