Sawyer Burton

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Although medical cannabis is now legal in many places, it is routinely prohibited in correctional facilities even if an inmate possesses a valid medical cannabis card.[1] No one has ever succeeded in requesting medical cannabis in a correctional facility under the Eighth Amendment. Even when the legislature explicitly authorizes incarcerated persons to apply for a medical cannabis card, they are denied.[2]

Peoples’ cannabis use can differ, and while some people may use cannabis more medicinally than others, many people need cannabis much like they would any other serious prescription medication.[3] In acute cases, discontinuing someone’s cannabis use could result in death or serious injury.[4] Prison officials should not decide whether one person needs cannabis more than the next. If a doctor recommends medical marijuana for an inmate through a state sponsored system, prison officials should not have authority to decide whether that inmate’s medical needs are legitimate.

This Note argues for judicial expansion of the Eighth Amendment’s Cruel and Unusual Punishment Clause to create a better healthcare system for inmates by allowing the use of medical cannabis in correctional facilities. The Eighth Amendment can strike down state and county penal policies that lag behind the times of society and conflict with current legislation. The Eighth Amendment’s meaning evolves and expands through society and by dynamic judicial interpretation. Courts could incorporate changing attitudes towards providing inmates adequate medical care—including medical cannabis—by recognizing inmates’ access to medical cannabis is a medical need. Such recognition will require courts to interpret the Deliberate Indifference Standard, used to evaluate claims of cruel and unusual punishment under the Eighth Amendment,[5] in a dynamic way by deferring to state legislatures and public opinion.

While courts have not yet held that a prison official violate the Eighth Amendment by refusing to provide medical cannabis to an inmate, if a petitioner-inmate can show that such a denial was tantamount to “a deliberate indifference of serious medical needs,” then the prison official violated the inmate’s Eighth Amendment right to medical care.[6] This Note argues that denying inmates medical cannabis is a deliberate indifference to serious medical needs because the public, state, and medical fields permit medical cannabis. Therefore, prison officials act with deliberate indifference by superseding the public, state, and medical fields with their own medical judgments under the guise of prison administration.

Although an inmate has never successfully challenged the Deliberate Indifference Standard, the possibility exists if a court is willing to consider the shift in public attitude towards medical cannabis when interpreting the Eighth Amendment.

Part I of this Note gives background on medical cannabis, the Eighth Amendment inmate medical care Deliberate Indifference Standard, and the constitutional challenges thus far regarding inmate claims for medical cannabis. Part II argues that a dynamic and flexible interpretation of the Eighth Amendment, which takes into account the public opinion through legislation, would change the disposition of cases denying inmates medical cannabis.

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[1] Over 36 states and four territories—the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands—have publicly available medical cannabis programs. State Medical Marijuana Laws, Nat’l Conf. of State Legislatures (Jan. 11, 2021), https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.

[2] For example, in California an incarcerated person can request a medical cannabis card through the Prison under the California Health Safety Code § 11362.785, which expressly permits medical cannabis in California penal institutions.

[3] Peter Grinspoon, Medical Marijuana, Harv. Health Blog (Apr. 10, 2020), https://www.health.harvard.edu/blog/medical-marijuana-2018011513085.

[4] Id.

[5]  Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).

[6] Id.

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