The Marijuana Paradox
By the time Melonie Alvarado appeared for her probation-violation hearing in Courtroom 905 of Philadelphia’s Stout Center for Criminal Justice this May, Common Pleas Court Judge Scott DiClaudio was already frustrated.
Alvarado, dressed for court in heavy mascara and an oversized hoodie, was nearing the end of a three-year probation term for a 2016 drug-dealing case, her first criminal conviction, but now she was in trouble for using marijuana. DiClaudio had given her 45 days to get clean — but Alvarado, who relies on the drug to manage chronic anxiety, continued to fail screens for marijuana.
“Where’s your medical marijuana card?” the judge demanded, knowing she did not have one. “What leads you to believe you can get high when you're on my supervision and fail 15 drug tests in a row?”
DiClaudio revoked her probation and mulled his options: more probation, community service, court-ordered drug treatment, or even prison.
“You need drug treatment,” he told her. “Jail might help.”
He proposed 10 days in jail, but, relenting, allowed her to serve a month of house arrest, followed by 22 months of parole and three more years of probation.
Alvarado received the new, nearly five-year sentence stoically. “What more can happen to me?” she said later, a verbal shrug. Though she wants off probation, she feels marijuana works far better, with fewer side effects, than any antianxiety medication she’s been prescribed — and she can’t afford the fees for the medical card and doctor’s visit.
And, like many other people on probation across Philadelphia, she struggles to reconcile the judge’s strict orders with shifting norms around marijuana and with the drug’s evolving legal status: Philadelphia has decriminalized small amounts of the drug, making marijuana possession a summary offense, like public drunkenness or littering, meriting a citation rather than criminal prosecution. District Attorney Larry Krasner announced his office would not charge people with marijuana possession, or seek to revoke probation for use of the drug. Medical-use cannabis dispensaries are popping up across the city. And the lieutenant governor, crisscrossing the state on a listening tour, reported that the Wolf administration and a majority of the public support legalizing recreational use.
Even as most Philadelphians are free to get high with impunity — facing at worst a $100 fine — judges and probation officers continue to punish people for using the drug, resulting in court-mandated treatment, extended probation, and even incarceration.
It’s one factor contributing to Philadelphia’s bloated levels of community supervision and of incarceration — which are among the highest of any big city and come at an enormous cost. Philadelphia spends more than twice as much per capita as other cities on corrections, and nearly twice as much on judicial and legal costs.
And it is a significant factor, going by the results of 53,313 drug tests administered by the Philadelphia adult probation department in 2018. The majority of those tests were negative for any drug — but among the failed screens, about half were positive for marijuana alone, according to court data. That’s more than 11,000 tests flagged just for weed.
Philadelphia’s chief defender, Keir Bradford-Grey, called marijuana screening a waste of resources that doesn’t make the city any safer:
“Many of them are using it for PTSD and trauma. Many of them are using it for pain. So these reasons are benign in terms of our notion of public safety — and this is why we are creating an endless cycle of probation for people who are being tested this way.”
And, at a time when the opioid crisis is killing more than a thousand people each year in Philadelphia, the courts’ most intensive drug-treatment and diversion programs are squandered on marijuana users.
For instance, just 18% of those coming out of Philadelphia Drug Treatment Court in 2018 were opioid users; 75% were marijuana users.
A spokesperson for Philadelphia’s court administration and probation department declined repeated requests for interviews.
One way some jurisdictions are avoiding such outcomes is to simply stop testing for marijuana. Among them, New York City this year enacted a law barring its probation department from testing for marijuana in almost all cases.
But in Pennsylvania, probation officials and judges continue to craft their own — often conflicting — responses to marijuana use.
In September, Lebanon County Probation prohibited use even for those with medical marijuana cards. For people on probation who were managing health conditions with marijuana, the consequences were in some cases severe. One woman, Melissa Gass, 41, stopped using the drug to manage her epilepsy after her probation officer told her continued use would put her in violation. Soon, she was experiencing six or seven seizures a day.
In October, the ACLU of Pennsylvania sued on behalf of Gass and two other people on probation, and the state Supreme Court agreed to exercise its extraordinary King’s Bench authority — a power reserved for matters of “immediate public importance” — to review the case and temporarily bar Lebanon County from implementing its policy.
“We are reading this as a statewide injunction,” said Vic Walczak, legal director of the ACLU of Pennsylvania, which has identified six other counties — Elk, Forest, Indiana, Jefferson, Lycoming, and Northampton — that ban medical marijuana for those on probation.
But there’s no immediate relief for people like Jacob Makaravitz, 29, who are already incarcerated on probation violations. This fall, he went to a doctor and obtained a medical marijuana card to manage his nerve pain, but failed to get his probation officer’s permission. In October, a Lackawanna County judge sentenced him to one to three years in state prison for the unauthorized use.
James McGurl, 31, who was in drug court with Makaravitz, learned of his friend’s incarceration with alarm. “It’s just pure insanity. You can sentence someone one to three years for a medical marijuana card prescribed to him by a doctor,” McGurl said.
McGurl himself is a former heroin user who got clean through a 12-step program. “Marijuana has been a great help and aid to me in my recovery,” he said — but it was a marijuana charge that saddled him with a felony conviction and a sentence to intermediate punishment. “Oddly, after I finally got clean, I ended up in jail and on drug court,” he said. “Where were they when I was robbing people’s houses and being a total scumbag?”
In Philadelphia, the court accepts medical marijuana cards, but probation administrators and judges have conflicting ideas about how to deal with those who use marijuana without authorization, according to Laurie Corbin of the Public Health Management Corp., which holds an $8 million contract with the city to provide assessment and treatment for court-ordered clients.
“There’s a real concerted effort not to be bringing people in [to jail] with charges related to marijuana,” she said, “but then there are other behaviors related to marijuana use, where [they’re] breaking and entering or doing other kinds of crime.”
DiClaudio said his thinking has evolved since he sentenced Alvarado to house arrest in May: He’s now more likely to order marijuana users to join him and court staff for community-service than to incarcerate them. He said he issues anyone using marijuana on his probation at least three warnings, and ends up jailing less than 1% of those on his probation for marijuana-related violations.
“It’s absolutely necessary to enforce probation violations that are brought to my attention … prior to them becoming more serious transgressions,” he added.
To Alvarado, it felt as if what she was really being punished for was poverty: If she’d had $50 for the state ID card, plus $150 or so for a doctor, none of this would have happened.
No matter, she said. She’d finally landed a job, at a cellphone store, and her first paycheck would go to that card. “If I can go and get it, all this would go away. It's a matter of money,” she said.
The judge gave her permission to work while on house arrest. But later, after she informed her new employer she was being monitored electronically, he fired her: He didn’t want all that trouble at his place of business.
Treating Marijuana Use
Self-assured as a small-town mayor, Malik Wilson stood in the hallway of the Stout Center for Criminal Justice in Philadelphia this summer, easily distributing handshakes, half hugs, and fist bumps, pausing to compliment a woman leaving court in a bright pink, faux fur, cropped jacket.
A 22-year-old man with “SAVAGE” on the chain around his neck and “hustler” curling in cursive ink down his forearm, Wilson was on his 39th court date for a 2016 drug charge that had been diverted into Philadelphia drug treatment court.
“It was supposed to be one year,” he said. But, even though he was working a construction job and attending trade school, he had repeated setbacks for positive marijuana tests. It’s a common complaint: Philadelphia’s one-year treatment court program ends up lasting an average of 25 months for those who graduate successfully and 32 months for those who fail.
Given that, as far as Wilson could tell, smoking marijuana is no longer a crime, he had trouble taking his court-ordered drug treatment seriously.
"After I'm done [treatment court], will I start smoking again?” he said with a laugh. “Yes, I sure will."
Nationwide, more people receive court-ordered referrals into drug treatment for marijuana than any other kind of drug — 126,000 of them in 2017, according to the U.S. Substance Abuse and Mental Health Treatment Administration. More than half of all marijuana users in treatment are forced to go there by the criminal justice system. Notably, while just 13% of those in drug treatment in Pennsylvania are African American, 29% of those in treatment for marijuana are black.
Yet, a national epidemiological survey found that, as marijuana use has proliferated, the prevalence of marijuana-use disorders, described as abuse of or dependence on the drug, remains below 3% of adults nationwide. That represents about three out of 10 marijuana users.
Statewide, 22% of people in drug treatment courts are marijuana users, but that number rises to 57% in Chester County and 75% in Philadelphia.
These programs are seen as a means to keep people out of jail while enforcing treatment.
But in reality, about one in three participants in these diversionary programs will be incarcerated as a sanction for repeated positive drug tests, missed court dates, or failure to attend treatment, an Inquirer review of court data from Philadelphia and surrounding counties shows. Six out of 10 people leaving drug court in Pennsylvania graduate successfully; those who fail can face sentences of probation, jail, or even state prison.
Despite the potential for harsh consequences, some are grateful for the counseling that judges and probation officers provide. They say they need other coping mechanisms besides dulling trauma with marijuana, and court-ordered counseling or treatment may provide those skills
But to those who flounder under the strictures of drug treatment court, it feels like a trap.
One, Adam “AJ” Josline, bounded into Philadelphia’s treatment court earlier this year just as it was wrapping up for the day, narrowly avoiding a bench warrant.
He was convicted of drug-dealing in 2015 and diverted into the treatment program, though he said he rarely uses anything stronger than marijuana. Recently, the treatment court judge sent him to jail for the weekend for smoking weed and drinking alcohol; with the processing time, it ended up being more like four days. He had to rush straight from jail to an overnight shift at work so he wouldn’t lose his job.
"They're messing with black men's lives," Josline, 26, of South Philadelphia, said later.
Nine out of 10 people leaving Philadelphia’s drug court in 2016 were racial minorities. Of 114 marijuana users discharged from drug court that year whose race was listed in court records, just nine were white.
Leo Beletsky, of Northeastern University’s Health in Justice Lab, said the system’s overreach, and the frequency with which treatment appears to be misallocated, are good arguments for ceasing testing for cannabis.
“The system is overly broad and often penalizes people for things that have nothing to do with the problem they are ostensibly being treated for,” he said. “It has disastrous consequences: You can lose your kid, lose your job.”
Recently, Philadelphia has explored changes.
Under Krasner, prosecutors already under orders not to prosecute marijuana possession have sought to terminate some marijuana users from drug treatment court.
The city is also looking at reducing probation detentions as part of the MacArthur Safety and Justice Challenge grant. One of the MacArthur innovations was the Detainer Alternative Program (DAP), a program to deliver intensive drug treatment to people who might otherwise be locked up for probation violations.
But many in the program question its effectiveness. About half of participants are marijuana users, city officials acknowledge. Participants remain in what’s supposed to be an intensive two- or three-month program for an average of five months. And in the end 61% of them fail, according to court data, putting them once again at risk of incarceration.
One man, who was in DAP for using marijuana, found a way around the system in November, at a price of $250: He obtained a medical marijuana card, which he said he needed for chronic back pain related to his work at a moving company. As he left court, another DAP defendant chased him down the hall to learn more about the process.
Incarcerated for marijuana
Tyrone Ford-Payton, on probation in Delaware County for breaking into a vacant house as a drunk 21-year-old, was warned in February that a positive marijuana test could be grounds for violation. But Ford-Payton, who has no other criminal history, was not expecting five sheriff’s officers to come to his house late at night and haul him to jail.
Ford-Payton, who said he uses marijuana when his anxiety becomes unmanageable, would spend 30 days incarcerated. A judge warned him another positive test would mean two or three months in the county jail.
Since then, Ford-Payton has been in weekly, court-ordered drug treatment, even as he’s working on applying for a medical marijuana card.
“I have friends who been locked up for marijuana plenty of times in Delaware County. They’ve started to use K2,” he said, referencing the synthetic drug, viewed as a marijuana alternative, that’s difficult to detect on drug tests but that has been known to induce psychosis. “I have a friend who, I think he developed schizophrenia — he’s in a crisis center right now — because he switched from marijuana to K2. He’s on probation and he’s not trying to get locked up anymore. He’s been abused by the system.”
That, critics say, is a central problem with testing people on probation for marijuana: Some who rely on it will go to great lengths to avoid detection.
The most common problem is that people who fear testing positive for marijuana end up absconding – and that often results in incarceration, either when probation officers put out a warrant or later when judges revoke probation and impose jail or prison terms. In Philadelphia, three-quarters of those who were revoked in 2016 had violated conditions of probation but had not committed new crimes.
In one such case, Gregory Brown, 34, on probation since 2005 for a drug charge, said he suffers from lupus and uses marijuana to manage the pain — and avoided reporting to probation because he feared being arrested and “dying in prison,” according to court records. In 2009, Philadelphia Common Pleas Court Judge Genece Brinkley revoked his probation and sentenced him to three to six years in prison. After he was released, he continued to use marijuana and skip appointments. So, in 2018, Brinkley imposed another term of 1½ to three years.
In October, the Pennsylvania Superior Court overturned that sentence, finding “the trial court abused its discretion in sentencing Brown to total confinement.”
Even if a judge does not impose a prison term, people can still end up incarcerated over marijuana use.
That’s what happened to Joseph Kamara, who took a car on a joyride when he was 20, got into a minor accident, and ended up with a misdemeanor conviction, more than $3,000 in restitution and court costs, and two years’ probation. But he kept testing positive for marijuana and in September was placed into DAP.
At his family’s apartment in Northeast Philadelphia, as his 2-year-old sister danced in front of the TV to “Baby Shark,” Kamara said he is now older, wiser, and committed to making better decisions. (He’s 21.) But he never made progress in DAP because he didn’t have the health insurance needed to access the program’s treatment component — and because he didn’t believe he needed drug treatment. “I don’t got nothing wrong with me,” he said, adding that he had used marijuana primarily to stimulate his appetite.
Now, though, he had a new problem: keeping up with all the extra court dates the program required. He’s working at building his career as a DJ, at block parties, weddings, and nightclubs, but getting home from gigs at 5 a.m., he had twice slept through court, which is an hour away by bus, then train. Soon he learned there was a bench warrant for his arrest.
Kamara couldn’t risk the police busting in, traumatizing his little brother and sister, so he turned himself in and spent a week at Curran-Fromhold Correctional Institution.
At a November probation-violation hearing, Judge Robert Coleman said he wanted to order treatment for Kamara, but warily gave him 90 days to prove he could stay clean and to find steady employment.
“I’m serious about the pot,” the judge said. “All the good employers drug-test. You just won’t get a job if you smoke pot — that’s why I’m so fanatical about it.”
Outside the courtroom, Kamara admitted he didn’t really get the fuss. “It’s about to be legal before you know it,” he said. But until it is, he plans to abstain.
THE PROBATION TRAP
Living in Fear
Judges Rule
Punishing Addiction
‘Everyone is Detained’
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