Probation or Prohibition?

November 22, 2005

Josh Indar, Chico News & Review

A Butte County medical marijuana patient who is on probation for domestic violence is hoping she won't be made an example of, as she fears county prosecutors are gearing up to "take [her] to war" over her use of medical cannabis. "I have serious polycystic ovarian disease.  It causes pain constantly," Holly Hogan, a defendant in the county's Domestic Violence Own Recognizance ( DVOR ) program, said.

"I've had this condition for over two years.  I told them I had this disease and I have to smoke marijuana.  It's the only thing that helps the pain."

Yet she said she was told in court that if she doesn't quit using pot, she may end up being used as a test case to challenge California's medical marijuana law, at least as far as it relates to people on probation.

Hogan, 24, landed in the court system when she got into a fight with the father of her 4-year-old son at his Chico home last September.  She spent four days in jail and was recommended for DVOR, a court program that basically places defendants on probation and rewards or punishes their behavior during a year-long observation phase.  Defendants in such "treatment court" or "behavioral court" programs are barred from taking drugs or alcohol and often must attend meetings and counseling sessions meant to help them deal with their underlying problems.

Hogan has smoked marijuana to treat her pain for at least two years.  While she was on probation, she got a doctor's recommendation for medical marijuana under the state's Compassionate Use law.  But the terms of her probation forbid her from taking unauthorized drugs, medical, legal or otherwise.

This conflict in the law has set up a situation in which prosecutors, defendants, patients and probation officers are having a hard time figuring out when a defendant has violated probation.

"Now they want to put me in jail for two years," Hogan lamented.  "[Treatment court prosecutor] Helen Harberts told probation to write me a violation.  They want me to go to rehab for medical marijuana, but I can't afford it.  I actually do have a medical condition that requires surgery."

Harberts, when contacted for comment, said in an e-mail that she wasn't able to talk about specific cases.  But she acknowledged that treatment courts are increasingly having difficulties with defendants using Prop.  215 recommendations in a way that Harberts said amounts to a loophole that allows them to continue using marijuana while on probation.

"If people are in a court program for addiction issues, they must abstain from all addictive substances without prior permission of their probation officer," Harberts wrote.  "People get addicted to both legal and illegal drugs.  We serve many pharmaceutical drug addicts in our courts.  Marijuana is different only in the context that it is not pharmaceutical grade."

Harberts went on to state that allowing court participants to smoke marijuana undermines their treatment programs.  Citing a study by Berkeley clinical researcher Mark Stanford, Ph.D., Harberts said that marijuana has proven to be addictive and is therefore "a dangerous substance for addicts."

Other studies, however, such as one conducted by Loyola College's Daniel M.  Perrine, Ph.D., have rated marijuana's addictive properties as being less than that of coffee or cigarettes.  While marijuana has been used as a medicine for at least 5,000 years, it is currently designated by the federal government as a Schedule I illegal substance, which classifies it as extremely harmful and having no accepted medical use.  According to various studies, more than 20 million Americans have used marijuana in the past year and more than 30 percent of Americans have tried it, making it the most widely used illicit drug in the U.S.

While advocates tout its benefits as an appetite enhancer, pain reliever and relaxant, detractors of medical marijuana tend to believe that the medpot movement is a Trojan horse for drug legalization.

Hogan said she has made every court appearance and follows the program as well as she is able, but doesn't want to stop using what she said is the only drug that eases her pain.

"I'm like a shining star on probation," she said.  "I could see if I was on meth, but this is state law.  I have a valid recommendation."

Harberts sees it another way.

"For me, this is a treatment and addiction issue," she wrote.  "I do not believe the voters ever intended Prop.  215 to permit addicted offenders to use addicting drugs.  If necessary, we will look for a test case to see if exceptions can be carved into the law."

Hogan will find out if hers is indeed the aforementioned test case on her next court date, Nov.  28. 


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