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Federal Judge Wants To Allow Medical Marijuana For Man On Probation

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A federal judge said this week she would allow a man on supervised release to use medical marijuana—saying that she suspects it is “the greatest thing for pain”—but regrets that her hands are tied by current law.

Attorney Joseph Vita wrote a letter to U.S. District Judge Colleen McMahon on Sunday, asking for the court’s permission to allow his client, Derrick Atkins, to use cannabis in compliance with New York state law to treat chronic back pain.

Vita said his client “has continued to struggle with chronic back pain for which he has sought appropriate medical treatment” and that he “does not wish to treat this condition with opiate medications because of the severe side effects and risk of addiction.”

Upon the recommendation of a probation officer, Atkins applied for and obtained a medical cannabis card.

The judge hand-wrote a note on Vita’s letter expressing sympathy with his client.

“Federal law prohibits the use of marijuana for any purpose,” she said. “Sadly, therefore, I can’t authorize this—even if I think that medical marijuana is the greatest thing for pain (and I suspect it is).”

“I would authorize this if I could—but I, as a federal judge, am constrained by the fact that federal law bans it.”

An image of the document was shared on Twitter by USA Today reporter Brad Heath.

Last year, a similar case presented itself in Minnesota. A man convicted of felony firearm and drug violations obtained a medical marijuana recommendation for chronic pain from a physician and asked his probation officer whether he could use it in compliance with state law. One of the terms of his release was that he could not use a controlled substance “except as prescribed by a physician.”

The probation officer advised against it, but when the man later tested positive for marijuana, he insisted to the district court that he was adhering to the terms of his release. The court recognized that the language of the requirement was somewhat confusing in the context of Minnesota’s legal medical cannabis program and granted him time to find federally legal pain medication.

When he appealed that decision to the Eighth Circuit Court of Appeals, the court made clear there was no exception under federal law to allow for cannabis use.

In that case, the appeals court simply said “the state’s law conflicts with federal law.”

McMahon’s new response to the attorney in the New York case further demonstrates how those conflicting laws can be a source of frustration for both patients and the people charged with carrying out federal law.

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Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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