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Ignoring The Will Of The People

You would never in a million years see an opinion like State v. Hancock in anything but a criminal case. In it, the Supreme Court of Arizona spent its valuable time analyzing a provision that said a certain group authorized to do a certain thing cannot be denied “any right or privilege . . . by a court” for doing that thing. One party was a member of that group, and the other party was trying to have a court deny her the thing a court by law cannot deny her.

It might seem like the Supreme Court’s conclusion is beyond obvious, and it surely should be. The problem, however, is that the party arguing the law does not mean what it says is the State of Arizona, and the defendant is a medical marijuana user who wants to use medical marijuana while on probation. More than anything, the opinion is evidence of the disdain many prosecutors, and a fair number of judges too, have for Arizona’s medical marijuana laws. The voters in this state may have spoken and condoned the authorized, medical use of marijuana, but it seems that authorities have not entirely listened.

In Hancock, the state primarily argued the defendant had waived her rights. The court explained that voters had established as public policy that qualified patients cannot be penalized or denied any privilege as a consequence of their lawful marijuana possession or use. It went on to say that the policy “would be severely compromised if the state and a defendant could bargain away the defendant’s ability to lawfully use medical marijuana.” Courts all too often allow the state to deprive people of important rights by saying they waived them by pleading guilty, a dubious proposition considering that our draconian sentencing laws make plea negotiations anything but fair, so it is nice to see an opinion protecting an individual’s rights in the context of a plea waiver. Unfortunately, the court also decided that the state could withdraw from the plea because the provision preventing the use of medical marijuana also prevented the illegal recreational use of marijuana.

I hope that the widespread derision many prosecutors show toward the medical marijuana laws and users themselves does not also color the state’s decisions from this point on in Hancock. If it does, the state may well withdraw its offer and refuse to work with the defendant, and she may find herself in the end with a harsher sentence after trial for asserting her rights and succeeding. It would be both a shame and a terrible waste of resources, but it would not be terribly unusual.

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