Medical marijuana patients achieve back-to-back victories

Story and photos by Jeff Kronenfeld

When medical marijuana patient Rodney Jones purchased .005 ounces (1.43 grams) of marijuana concentrate from a state-licensed dispensary in 2013, he couldn’t have known it was the beginning of a more than half-decade legal battle that would see him incarcerated for over two years. On May 28, the Arizona Supreme Court at long last vindicated Jones, rebuking the argument of Yavapai County Attorney Sheila Polk, who runs an organization that received a half-million dollars from opioid manufacturers convicted of racketeering. Combined with the unanimous passage of a bill requiring testing for medical marijuana products a day earlier — which ended Arizona’s status as the only state with a medical marijuana law that did not require testing — patients around the state had much to celebrate.   

The Arizona Supreme Court’s ruling on the State of Arizona v. Rodney Christopher Jones case established marijuana concentrates are legal under the Arizona Medical Marijuana Act (AMMA), overruling a lower court finding that the AMMA’s definition of marijuana did not include concentrates and extracts. Though these substances were technically illegal during the interim, dispensaries, producers and patients had largely ignored this rule. The Court also found that patients can only have the amount of concentrate or extract that could be produced from 2.5 ounces of cannabis flower. However, the potency of marijuana strains and plants vary widely and the Court declined to offer an opinion on how to calculate this, how much of these substances are legal to possess is still unclear. This will likely be determined by the Arizona Department of Health Services (AZDHS), which currently oversees the state’s medical marijuana program, according to several attorneys interviewed for this article.

The Supreme Court’s decision also vacated Jones’s convictions and sentences related to the case, though Jones has already completed his more than two-year imprisonment. In addition to other fees or payments, Jones was held in a Yavapai County jail for over a year, where he was billed two dollars for each day there. Further, he missed important family events, such as the birth of his first child. “I can’t say what Rodney might do going forward within the legal system, but there is a US Supreme Court decision that holds that where a conviction is overturned and there is no impending retrial, the defendant is entitled to a refund of all fees, fines and restitution,” said Robert A. Mandel, the attorney who represented Jones at the Supreme Court oral arguments for the case on March 19. Jones can pursue a civil court case for damages, though Mandel said they are still studying the issue and have yet to decide how to proceed.

County Attorney Sheila Polk, who sent a subordinate to argue before the Supreme Court in her place, now faces a Change.org petition calling for her ouster. As chair of Arizonans for Responsible Drug Policy, she accepted $500,000 from opioid manufacturer Insys Therapeutics. The company’s founder and a number of its executives were convicted in May of bribing medical practitioners to prescribe their sublingual fentanyl spray, in addition to defrauding government and private healthcare systems. Since June 15, 2017, the AZDHS suspects opioids as the cause of death for 3,074 people in Arizona. The Department reports 0 suspected deaths from overdose by marijuana or marijuana products.

In her response to the ruling, Polk compared the court’s conclusion, “to finding that explosives produced from fertilizer are protected by laws allowing the sale of farm products.” Though her office did not respond to requests for comment or to explain this claim, other attorneys did. “It’s such a distasteful comparison, in addition to being so utterly false, because when you think of bombs made out of fertilizers — which is part of the analogy — you think of terrorism,” Mandel said.  “The notion that you’re equating something that a terrorist would do with patients who are desperately in need of medicines like this, I think it speaks volumes.”

Polk could face disbarment or lesser action from the state bar due to her failure to act as a “minister of justice.” This legal term describes the responsibility of a prosecutor to see that a, “defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons,” according to the American Bar Association’s Center for Professional Responsibility. Though Jones was arrested in March 2013, he wasn’t indicted until over a year later, on April 9, just a few weeks after Maricopa’s Superior Court ruled in support of concentrates in another case.

If Polk can be proved to have advanced the case against Jones for political reasons, then she may have violated professional standards and even have broken the law. However, due to lax enforcement, Polk is unlikely to face legal consequences. “Very rarely do you find a prosecutor who takes that seriously,” explains Tom Dean, an attorney and AZ-NORML Legal Committee member. “It’s all about advancing the policy of the elected county attorney or the attorney general’s office in case of a state prosecuting agency. That’s what matters, advancing the policy and winning at all costs.”        

The other victory for medical cannabis patients came with the passage of a law requiring the testing of all medical marijuana products in Arizona. In addition to checking for pesticides, fungus, mold and other contaminates, the bill doubled the length of time medical marijuana cards are valid for, from one to two years. Though other bills requiring testing had failed in previous years, this one passed Arizona’s legislature on May 27 and was signed into law on June 7 by the governor.

Though the bill passed the Arizona House and Senate unanimously, this was far from a foregone conclusion in the lead up to the historic vote. “We had the lab stakeholder meeting on the morning of the final day of the legislative session and we didn’t know until about 10 o’clock that night how our bill was going to fare,” said Michael Weisser, state director of AZ-NORML.

However, some attorneys and patient advocates have expressed concerns about the testing advisory council established by the law. The council is required to have only one patient on it and will predominately be made up of representatives of the cannabis industry, some of whom have resisted previous testing legislation.

The Director of AZDHS or their designee will also be on the board, which will determine the specifics of how testing will be structured and implemented, as well as advise on expenditures from the Medical Marijuana Fund. However, the council may exert influence far beyond testing. “In the last part of the authorization, they talk about the council providing additional assistance as the director deems necessary,” Dean explained. “Pretty much this council is for anything the department wants it to be for.”