In the wake of the global coronavirus pandemic, government and health officials have issued mandates and guidelines to help slow the spread of the illness, from the shutdown of Broadway to shelter-in-place — and as a result, many people are struggling to maintain a semblance of normalcy. For some, cannabis consumption is central to daily rituals: According to a Gallup poll, 12% of American adults say they smoke marijuana and those who use cannabis medicinally — some 3.7 million Americans, according to data analytics firm New Frontier Data — rely on the plant for relief for a number of conditions. “As long as cultures have consumed cannabis, the practice of sharing a joint amongst friends has been a common social practice,” said Erik Altieri, executive director of NORML.
To avoid spreading the novel coronavirus, marijuana smokers should avoid sharing joints and should favor edible products, US cannabis industry figures said Wednesday. NORML recommends that consumers not share the various tools they might use to smoke marijuana — including bongs, water pipes or vaping pens — and to clean them with disinfectant gel. But it goes even farther than that. “Further, because COVID-19 is a respiratory illness, some may wish to limit or avoid their exposure to combustive smoke — as this can put undue stress and strain on the lungs,” the NORML statement said.” The use of edibles or tinctures can eliminate smoke exposure entirely,” Altieri said in the statement.
This all seems like common sense, but what about consumers and unlicensed growers and providers who get busted during the threat of this pandemic? Being stopped, detained, arrested, booked, incarcerated in a packed jail, initiated in a crowded courthouse… What about our brothers and sisters who are packed in like sardines into a criminal justice system that cares little for their rights, a prison industrial complex that is motivated only by profit and is especially infatuated with housing cannabis offenders because they are mostly nonviolent and kind and generally less problematic than rapists, robbers and murderers?
The risk of viral infection and death is particularly high for those in prisons and jails. Recognition of this fact has led some sheriffs, prosecutors, and defenders to work toward reducing the number of people held in jails. Indeed, criminal justice stakeholders in New Jersey recently agreed that people serving jail sentences in the state should be presumptively released from custody, leading the Supreme Court of New Jersey to issue a Consent Decree to that effect. Similarly, it has also led the Montana Supreme Court to call on all judges in the state to release, “without bond, as many prisoners as you are able, especially those being held for non-violent offenses.” The Arizona Attorneys for Criminal Justice (AACJ) recently urged the Supreme Court to take similar steps.
The Arizona office of the American Friends and Service Committee wrote a letter this week to the Governor and the Department of Corrections (Arizona’s prison system) that urged, among other things, the suspension or reduction of the number of prison admissions for low-level drug offenses, or other short-term, low-risk individuals and to suspend revocations to prison for probation and parole violations, except where necessary in individualized instances to protect public safety. They explained that “[p]rison space should be reserved only for those who pose a legitimate public safety risk. Those who have been convicted of low-level offenses should be participating in social distancing along with the rest of the population. In addition, prison staff should be asked to spend their time supervising only those people who need to be in custody during the pandemic.”
A letter to the Governor from the American Justice Alliance pointed out that many members of AJA are alumni of the AZ Department of Corrections (DOC) and/or have family, friends or clients in the system. “People in prisons and jails are at a heightened risk from COVID-19 because of the crowded and unsanitary living conditions, lack of medical care, lack of hygiene materials, poor nutrition, and lack of ventilation. Certain cleaning supplies and sanitizers are classified as contraband, and running water, soap, and the freedom to social distance are often simply out of reach. Health experts warn that a serious and urgent response must be implemented. Soap, sanitizer, bleach, cleaning supplies and other hygiene products should be free for all and immediately available.”
The AJA letter goes on to point out, “This will be exacerbated by the significant understaffing issues already plaguing Arizona prisons and jails. As concerns about contracting the virus rise for staff members, and as schools close and childcare becomes less accessible for staff members who are primary caretakers, staffing facilities will become more difficult. This will create significant safety risks for both incarcerated people and staff. Corrections staff should be told they can stay home with pay if they feel ill.”
The main recommendation from experts regarding COVID-19 is to enforce strict social distancing practices, which is impossible inside detention centers. Outbreaks of mumps, scabies, and other highly contagious diseases have been documented in Arizona to spread aggressively in detention facilities including in for-profit facilities. The long-running Parsons v. Ryan lawsuit has repeatedly proven the lack of capacity of AZ DOC to respond adequately to provide the proper health care under normal circumstances. In light of the pandemic, we call on county jails to release all people from pre-trial detention, and for AZ DOC to release all non-violent offenders, and those imprisoned for marijuana infractions that soon will be legal. Imprisoning people for “technical violations” should immediately stop and those on parole or probation should be able to check in with their officers remotely. Quarantine anyone who tests positive for the virus at a hospital, not the jail or prison.
There are many other organizations, doctors and advocates, both liberal and conservative, who are calling on Arizona and other states to enact policies that keep low-risk offenders from being incarcerated in prisons and jails. Both jails and prisons have a 1.3% prevalence of HIV compared to 0.4% in the US generally. In state prisons, 64.7% of people smoke and in federal prisons, 45.2% of people smoke, compared with 21.2% across the US. The Coronavirus has already caused massive problems in prisons located in other countries. Three Chinese provinces registered more than 500 cases of coronavirus in prisons. Iran temporarily released 70,000 prisoners. In Italy, riots occurred in at least two dozen prisons and six inmates died after they broke into an infirmary and overdosed on methadone. At the Journal Health Affairs, public health experts outlined six urgent steps needed to address coronavirus in prisons, including limiting incarceration rates. “Prisons push people into the paths of epidemics,” the authors wrote.
The AACJ made concrete recommendations this week and urged the Arizona Supreme Court to immediately issue the following order:
directing the immediate consideration for release and release from custody of (1) all persons who are at elevated risk of contracting COVID-19, either because of age and/or because of underlying health conditions; (2) all pregnant women; (3) all persons being confined on misdemeanor charges and/or non-violent felony charges; (4) all persons who are bailable by right, but who remain in jail because they cannot pay the money bond set in their cases; (5) all persons who are being confined following an arrest on a warrant or upon an allegation of a violation of parole/community supervision or probation and who are not charged with or suspected of a crime of violence; and (6) all persons serving sentences of imprisonment in a county jail; and
directing that no newly arrested person be admitted to jail absent a showing by clear and convincing evidence that there are no conditions upon which the person could be released that would reasonably assure the safety of a particular person or persons within the community.
Second, AACJ joined with a number of other organizations and legislators to demand immediate action be taken by Governor Ducey and the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR) to protect inmates, detainees, and correctional staff in our prisons. In addition to immediately ordering the release of elderly persons, persons convicted of nonviolent offenses, and others who present little or no risk to the public, the Governor and ADCRR should implement the following policies, which have already been implemented in other jurisdictions:
Suspend in-custody detention of persons on probation for technical violations;
Immediately release all probationers currently detained on technical violations;
Immediately release all persons classified as non-violent offenders from ADCRR facilities;
Implement and/or continue to implement free video and telephone visitation for families of incarcerated persons;
Keep inmates in touch with family so they know their conditions will decrease the probability of anxiety and unrest;
Implement COVID-19 screening procedures and accurate data collection, like temperature monitoring, throughout ADCRR facilities;
Place anyone who tests positive for the virus in quarantine at a hospital, not a jail or prison; and
Allow those on parole or probation to check in with their probation or parole officers remotely.
Finally, the AACJ demands that the government dramatically reduce the number of people entering the criminal justice system. County Attorneys should decline or suspend prosecutions, except in cases involving a substantial risk that a person poses a danger to another person or the community. At the least, County Attorneys should decline to prosecute and dismiss ongoing prosecutions of drug possession cases, which account for a large percentage of the total prosecutions throughout the state. Similarly, police departments should be issuing citations and court summons for all crimes that do not involve a threat to public safety. Despite increasing calls to reduce the number of people in prisons and jails, Arizona is failing to implement the simplest and most effective way to disrupt the spread of COVID-19. Instead, it appears to be “business as usual” for many of our state’s prosecutors.
Please join with the many activist organizations like the AACJ and insist that the government take steps to ensure the safety of all nonviolent offenders, especially cannabis consumers who haven’t really done anything wrong other than to violate bogus laws that are based on nothing more than hate and bigotry. I hope that you, the reader, are happy and healthy during this age of social distancing. Just please remember to consume safely and above all else, don’t forget about your fellow cannabis consumers who are in hell on earth, sick and in jail with no way to avoid exposure and infection, and with no reliable health care to help them if and when they do contract the virus. Perhaps one of the silver linings to this crisis is that we as a society will begin to question these useless but draconian policies. Perhaps we will finally begin to walk away from the tragic decades old war on cannabis consumers and their families. One can hope!
Tom Dean has been a criminal defense lawyer since 1993 and has been winning marijuana cases in Arizona for over 20 years. Tom has represented persons charged with every kind of marijuana offense, including cultivation, transportation, sales, extraction, DUI, and simple possession. For more information about Tom Dean, visit his website.