Marijuana Legalization: What's Next for Court Professionals and Case Managers?

The legalization of marijuana has brought about significant changes in the court system, criminal justice organizations, and recovery programs. As court officials and case workers adapt to the evolving landscape of both medical and recreational marijuana use, they face several pressing concerns.

The PharmChek team recently sat down to talk about the present and future challenges criminal justice agencies and recovery programs face as marijuana legalization becomes more common across the nation, and how PharmChek is already addressing many of these challenges through the Sweat Patch and its unique drug testing system.

The Most Pressing Marijuana Legalization Concerns

As of July 2023, 39 states have legalized medical marijuana, with 23 of those states also legalizing recreational use. And it’s changing how agencies and recovery programs discuss marijuana use with their clients.

According to Chief Revenue Office Kerri Wagner, a former senior parole agent herself, most agencies PharmChek works with will maintain the same policies they had before legalization efforts. But there’s a specific reason for that:

“90 percent of the agencies we work with are still testing for marijuana. We work with clientele that are prohibited from drug and alcohol usage. Most of the time, their substance use is connected to criminal activities, so that use affects public safety and the community as a whole.”

Education Over Policy Changes

Court-mandated drug testing is more about educating program participants about the reasons for testing rather than adjusting policies merely for marijuana legalization. Virginia’s drug courts follow this exact approach.

Even when parolees and probationers consume marijuana in legal settings (e.g., in states other than Virginia), their probation and parole courts consider it a violation of their provisions. But for states like California, where cannabis is fully decriminalized, drug courts take a more lenient approach.

But what Kerri has seen in her own time as a parole agent highlights the importance of maintaining sobriety in all aspects of an individual’s life.

Marijuana Use and The Addiction Cycle

“Marijuana is often used as a substitute for meth or cocaine, so even if someone stops using meth, they often keep using marijuana. It keeps people entrenched in the addiction cycle, and it makes recovery more difficult since they’re not practicing the learned skills of changing their thinking to achieve lasting behavior change.”

This type of trigger leads recovering users back to old habits instead of toward full recovery. Testing for marijuana, in these cases, means the difference between success and failure. And many court professionals feel the only responsible choice is to continue monitoring, regardless of the legal status of marijuana.

The Impact of Marijuana Legalization on Probation, Parole, and Recovery Programs

As legal precedents are set, and agencies refine marijuana use policies, recurring key concerns emerge. Policy refinement and public education are vital in establishing appropriate guidelines, while cultural norms significantly influence criminal justice agencies' responses.

Current Cultural Climate

Marijuana legalization has altered public perception and attitudes toward the substance, with a significant shift toward acceptance of both medical and recreational use over the last ten years.

“Being in a state where recreational use has recently been legalized,” says business development and sales representative Jen Rankin, “I smell it when I walk in public areas. That's new. From my vantage point, it's the new fun thing for people who probably never thought about doing it before.”

That change has led to pushback on marijuana testing, especially in workplace settings. But for courts and recovery programs, policies will likely remain the same despite changes in public opinion.

Sales and customer support team member Richard Combs has seen much the same.

“You see celebrities out and about and on TV using marijuana, and it creates this image that it's not that bad. And that affects how people perceive drug testing for marijuana as well.”

While this may seem contradictory to what some see as a legal right or freedom, courts maintain the right to choose how they address cannabis use, regardless of marijuana legalization efforts. The use of “general good behavior” provisions highlight this specific nuance, requiring parolees and probationers to maintain a clean drug test to remain compliant.

Medical Marijuana Policies

The increasing acceptance of marijuana for medicinal purposes presents a significant challenge for court professionals. Balancing the reported therapeutic benefits of medical marijuana with the potential risks and legal obligations requires a nuanced approach to ensure individuals' well-being while maintaining compliance with court orders.

Parolees and probationers who treat medical conditions with cannabis must carefully navigate steps to legally qualify for medical marijuana and get approval from their parole or probation officers. Use could still violate their specific provisions without either of these paths covered, and that gray area has left many professionals at a loss.

Confusion and Frustration

Kimberly Henderson, part of the business development and sales team, notes, “There's just so much gray area. If someone’s been prescribed marijuana for medical purposes, how do you deny that? I've heard judges and attorneys talk about that in sessions.

"And it’s different everywhere you go. County to county, state to state, court to court. There’s just a lot of uncertainty about how to address this issue.”

And in some states, even after securing medical marijuana rights, drug courts have still mandated abstinence. Georgia, for example, currently provides no legal protection for medical cannabis use during probation or parole. But, as was the case for Pennsylvania, such policies may change as access for medical purposes is more widely seen as a medical right.

On-The-Ground Concerns with Marijuana Legalization

Outside of recovery and court concerns, law enforcement agencies are seeing many issues that need solutions to meet the changing laws. The most pressing concerns involve how on-the-ground agents address time-sensitive issues like drug-impaired driving and proof of use. And without updated policies and standardized methodologies, these agents say they simply won’t be able to meet these needs adequately.

Roadside and Field Sobriety Testing Standards

With the increase in marijuana use, determining impairment levels and establishing standardized testing protocols has become a crucial concern for law enforcement officials. Unlike alcohol, marijuana's effects on impairment are more complex and can vary based on factors such as dosage, frequency of use, and individual tolerance.

But beyond its chemical differences, marijuana also presents issues with sobriety testing because there simply isn’t enough information for a standardized policy. Meanwhile, states that have legalized recreational use have started seeing increased marijuana-related traffic incidents. Developing reliable and accurate testing methods is essential to ensure public safety.

And part of developing these testing methods is a better understanding of what makes marijuana use dangerous.

Updating Per Se Laws

Many court policies and guidelines related to drug testing were established decades ago, primarily considering illegal substances. According to the most recent research, however, the marijuana of today’s market is far more potent than in the past. That difference in potency creates major issues with thresholds for possession, consumption, and impairment.

As Kerri Wagner states, “Marijuana today, with THC levels at 95%, is not the marijuana of the old days, which was closer to 2–5%. Today’s marijuana is highly addictive, and the per se laws of the 1980s and ’90s simply don’t address its current potency.”

In cases involving marijuana use, the challenge lies in proving impairment at the time of testing. Unlike alcohol, which has BAC thresholds, there is no universally accepted measurement for marijuana intoxication. The development of standardized impairment tests designed explicitly for marijuana is crucial for effective law enforcement and legal decision-making.

Recent Use Detection vs. Past Use Detection

Traditional drug testing methods focus on detecting past use instead of recent use, which is of little value when supporting roadside testing and detection.

This weak point is a universal issue since no testing methods provide real-time THC detection. Law enforcement officials must deal with inadequate testing methods that usually take several hours to process. That gray area between the time of observing impairment and proof of impairment provides too much leeway for doubt in court cases.

Today, the best method for roadside testing is a presumptive positive pending the results of an on-scene saliva test.

The Sweat Patch: Equipping Agencies with Unique Marijuana Testing Benefits

While gaps in on-the-ground detection and testing still exist, The Sweat Patch offers distinct advantages for probation, parole, and recovery programs.

Testing Forward

Unlike traditional urine or blood tests, “The Sweat Patch is the only device that tests forward, not backward,” says Kerri Wagner. “When the Patch is placed on a body, from that point forward, if they use, we will know—rather than peeing in a cup and knowing if that individual used a couple of days ago.”

The patch collects Delta-9, the active component in cannabis, rather than focusing on metabolites. This method enables drug courts and caseworkers to better address the use patterns of people within recovery efforts. By focusing on the active component, the Sweat Patch minimizes the issue of blaming past use for the positive result. That has beneficial implications for public safety and therapeutic use cases for people fighting relapse.

Current and Recent Use, Not Just Past Use

The Sweat Patch's ability to detect recent drug use, including marijuana, provides valuable information for court professionals and case managers. By capturing a more accurate picture of an individual's drug use, agencies can make informed decisions regarding treatment plans, interventions, and compliance with court orders.

According to Kimberly Henderson, this means fewer excuses for positive results.

“Offenders are constantly talking about prior use—levels from before the urine test. That is just not part of the conversation when using the Sweat Patch. And that requires a complete mind shift for our customers.”

Double-Confirmation System

The Sweat Patch employs a double-confirmation system, where analyte detection from immunoassay screening moves the specimen into LC/MS/MS testing. The specimen returns positive only when the parent drug is present in further testing, ensuring reliable results and minimizing the possibility of false positives.

Uniquely Positioned for Probation, Parole, and Recovery Programs

The Sweat Patch's detection method for marijuana toxicology and detection, alongside several other illicit substances, places it in a unique position to support probation, parole, and recovery programs.

By providing highly accurate results focusing on current and recent marijuana use, the Sweat Patch empowers agencies to facilitate complete recovery from drug addictions and substance use disorders more effectively than urine and hair testing.

Navigating New Frontiers

Marijuana legalization has brought about significant challenges for court professionals, case managers, and recovery programs. Understanding the legal implications, adapting to changing cultural climates, and selecting appropriate drug testing methods are crucial to ensure effective supervision, compliance, and support for individuals under court supervision.

Within a probation or recovery program offering counseling, support, and community for recovering addicts, the PharmChek® Sweat Patch offers a valuable testing solution with unique benefits in detecting current and recent marijuana use, enhancing accountability, and improving the success rates of recovery efforts.

To see how the Sweat Patch can play a part in your specialty court, supervision program, or recovery program, contact us for more information.