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Just because it’s legal doesn’t mean you can’t go to jail

On Behalf of | Jun 5, 2019 | Criminal Defense |

Recreational marijuana is legal in the state of Oregon, which means that all Oregon citizens of legal age, can enjoy marijuana if they choose to. Well perhaps, not everybody. There is a common misconception that in states that allow recreational marijuana consumption, that you have no risk of going to jail if you choose to consume it. Unfortunately for those on probation and parole, that is exactly what might happen. A failed drug test can still be considered a violation of probation or parole and may result in a return to a prison cell. 

Understanding the problem

In the United States, there are more than four and a half million people on parole or probation. During their probation or parole period, they run the risk of incarceration if they violate any of the terms outlined in their supervised release. For most instances, this includes abstaining from the use of cannabis products. Pew Charitable Trusts performed an analysis of the probation and parole figures and found that over half of the probation and parole terms end without any incident. But for the other side of that figure, almost 350,000 will receive additional time for failure to complete their probation or parole stint with a clean record. There are even some states where the revocation of supervised release is one of the most common causes of incarceration. Both Georgia and Rhode Island saw over 60 percent of their new prison admissions coming from revoked parole or probation. 

One of the most significant issues concerning supervised regulations is that judges are given a lot of discretion when it comes to dictating the terms of a prisoner’s release. This means they even have the right to restrict a person on supervision from performing actions or participating in activities that considered legal in the state. Some of the most common of these restrictions include limiting where they can go geographically, prohibiting them from contact with certain parties, and prohibiting them from consuming certain items, even if they are legal, such as alcohol and now, marijuana. Restrictions on marijuana are pretty standard, even if the offense is not related to it. 

As the restrictions for supervision seems to get more and more significant, parole and probation no longer seems as much as an act of mercy or leniency. In some cases, you may end up with even a longer sentence for violating the terms of your supervision than you may have served initially if you had been jailed. It is now turning this type of supervision from more of a reward, into a different form of punishment. 

How can states rectify the problem? 

Some states are addressing the issue as many parts of the country push to legalize recreational marijuana in the U.S. A New York City Council voted to cease marijuana testing for probationers. Assembly members felt that regular marijuana testing did nothing to improve the public safety when used as a requirement to be in compliance with probation and parole. Studies have been done also show that sending probation and parole violators back to jail for technical violations only, does not actually reduce criminal behavior.

Additionally, most of the avoided mandatory meetings occur when someone on supervision is afraid of testing positive on a drug test. Hopefully, by removing marijuana testing from these requirements, more parolees and probationers will report with more regularity. New York has already seen positive results when removing marijuana testing from probation requirements, cutting probation renovations by almost half.

Consuming legal marijuana could still land you in jail

Until all of the states that have approved the use of recreational marijuana decide to make similar adjustments to their parole and probation supervision requirements, you still run the risk of going to jail in for testing positive for marijuana use on a court-ordered drug test. 

As the push to legalize marijuana continues throughout the country, it is time for states to look at reforms to probation and parole requirements, to avoid putting more people back in jail for simple violations involving substances that are perfectly legal.