Medical Cannabis in the Hemp State? No Relief in Sight
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Holy smokes, Joe Biden pardoned all those convicted of violating federal marijuana laws and started the ball rolling on rescheduling cannabis? Maybe now I can get some medical cannabis, or even some (gasp) adult use cannabis in my home state!
Kentucky is one of just 13 states that still criminalize all marijuana use and possession. Currently, simple possession of marijuana is a misdemeanor carrying a maximum 45-day sentence. In most instances of simple possession, the suspect is issued a citation similar to a traffic ticket. A well represented first time offender is likely to see the charges dropped with a contribution to a charitable organization usually affiliated with drug treatment or rehabilitation.
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In 2019, democrat Steve Beshear was elected governor on a platform that included a commitment to providing Kentuckians with access to medical cannabis. During the spring 2022 Kentucky legislative session, House Bill (HB) 136 was passed by Kentucky's lower house with bi-partisan support (59-34). Once again, however, Kentucky’s Republican controlled Senate blocked the bill to the floor for a vote. Senate President Robert Stivers and Republican Majority Leader Damon Thayer have long stated their unequivocal opposition to medical cannabis.
In response to the continued Senatorial inaction in the legislature, Governor Beshear formed the Team Kentucky Medical Cannabis Advisory Committee in April to gauge support for medical cannabis across the Bluegrass State, as some polls had suggested that medical cannabis enjoyed the support of 90% of the state’s population. Upon announcing the formation of the committee, Beshear announced the formation in April 2022, stating:
“Kentuckians deserve passage of a medical marijuana bill. They overwhelmingly support it. When 70 plus percent of a state is in favor of something, it’s time for the General Assembly to step up and do something about it. Represent the people.”
Fast forward to late September-early October and things are starting to get very interesting. The committee released their report on September 30, reaffirming the notion that Kentuckians across the spectrum of political beliefs agree that medical cannabis should be legalized. Their report roughly confirms that 90 percent of Kentuckians want medical cannabis. However, while teased in the introduction, the report stops short of making any actual suggestions on a way forward for providing medicine to sick Kentuckians.
Less than a week after the Team Kentucky Medical Cannabis Advisory Report was released, President Joe Biden announced that he was issuing pardons for all federal marijuana convictions. This announcement is in part a follow-through on his campaign promise to reform federal cannabis laws, and it also includes a call for the Attorney General and Secretary of Health and Human Services to review possible steps to revise marijuana’s current “schedule I” status.
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So, what does that mean to the average Kentuckian looking to consume cannabis legally? Unless Democrats retake control of the Kentucky Senate, sadly not much. The two Republican senators who control Kentucky’s Senate (Stivers and Thayer) are not just outspoken about their opposition to reforming cannabis laws, they are cruel. Stivers has repeatedly demonstrated a complete lack of empathy. In 2018, when asked about Cassie Everett, a patient requiring 10 medications daily to control debilitating epilepsy seizures, and whose own doctor suggested she could be helped by medical cannabis, Stivers coldly joked she should “have a bourbon.”
Of course, the bourbon Ms. Everett should have is probably produced by the distillery of Senate Majority Leader Damon Thayer. Thayer, who is smart enough not to vote against his personal interests, is so calloused to the suffering that Kentucky’s sick citizens endure, and so secure in his office, that he smugly stated, “I know my constituents are for it, if they don’t like it, they can take it out on me in the next election.” He knows his campaign coffers are flush, that no republican primary challenger is a threat, and no democrat could likely beat him in the general election.
Governor Beshear saw the Senate’s inaction as an opportunity to seize the political high ground. When announcing formation of the commission, Beshear noted that access to medical cannabis enjoyed broad bipartisan support, citing a private poll jointly conducted in 2019 by “Foundation for a Healthy Kentucky” and “Interact for Health.” The poll results showed that up to 90 percent of Kentuckians supported access to medical cannabis, while a staunch 60 percent supported full legalization. It is rare for an issue to receive such strong bipartisan support.
Realistically, there is not much Governor Beshear can accomplish. The Kentucky state constitution is clear about the executive branch’s limits regarding the law. Section 72 gives the Governor the power to grant reprieves, pardons, remit fines, and forfeiture. Section 79 granted the governor the power to create the “Team Kentucky Medical Advisory Committee,” and Section 81 states, “(The governor) shall take care that the laws be faithfully executed.”
It has been suggested Section 81 gives the governor power to decriminalize cannabis through executive order, either by declaring a “medical emergency” or by declaring cannabis violations “low priority.” How this would run up against the agenda of Kentucky state Attorney General (and Republican gubernatorial candidate) Daniel Cameron, is anyone’s guess. Cameron, a protégé of Senator Mitch McConnell, has already flexed the power of the Attorney General’s office, undermining the governor’s executive power during the COVID-19 pandemic.
Senate President Stivers also issued a strong statement about the immediate future of medical cannabis and the prospect of an executive order: “The public should be concerned with a governor who thinks he can change the statute by executive order. He simply can’t legalize medical marijuana by executive order; you can’t supersede a statute by executive order because it’s a constitutional separation of powers violation.”
Art By Rebekah Jenks
If an overwhelming number of Kentucky voters want medical cannabis, what is the problem? Just start a petition and let the people vote. Sadly, the Kentucky constitution does not provide for a ballot initiative. Kentuckians cannot draft legislation and, with enough signatures, get proposed legislation on the popular ballot. Legislation must be introduced and passed by both houses of the General Assembly.
The message is clear. The road to medical cannabis winds through Kentucky’s Senate and, while Robert Stivers and Damon Thayer run the Republican caucus, that road is closed.
Cannabis-loving Kentuckians have a clear choice when they head to the ballot box this November. If commentary on social media is any indication, we will be forced to wait on Biden to take more action.