Kentucky Governor's Order Protects Medical Marijuana Users From Prosecution for Possession

To be eligible for a pardon, patients will have to obtain cannabis from other states and document their diagnoses and purchases.

The 37 states that allow medical use of marijuana do not include Kentucky, where polling suggests that 90 percent of residents favor that policy. Because state legislators have not delivered a reform that the vast majority of voters say they want, Gov. Andy Beshear this week issued a conditional pardon aimed at protecting people who use marijuana for medical purposes from prosecution for simple possession.

Beshear, a Democrat in a state where Republicans control the legislature, presented his pardon as a commonsensical response to public opinion and the example set by other states. "Kentuckians throughout the Commonwealth suffer from a multitude of medical conditions from which they deserve relief," he said in his executive order. "In Kentucky, despite polling that suggests 90 percent (90%) of Kentucky adults support legalizing medical cannabis, any amount of cannabis possession, cultivation and distribution remains criminalized. Past efforts to legalize medical cannabis through legislation have failed in the General Assembly, including during the 2020 Regular Session and the 2022 Regular Session when bills passed the House of Representatives in bipartisan fashion, but did not reach debate in the Senate."

Contrary to what you may have read, Beshear's executive order does not "legalize" medical marijuana. It does not even necessarily mean that patients who use cannabis for symptom relief won't be arrested for marijuana possession, a misdemeanor punishable by up to 45 days in jail and a $250 fine. But it does mean that such individuals won't be prosecuted for that offense, provided they meet four conditions:

1. They have to buy marijuana outside of Kentucky in a jurisdiction where such sales are legal.

2. They have to retain a receipt documenting that purchase.

3. They have to buy no more than eight ounces.

4. They need a "written certification" from a doctor saying they have been diagnosed with one of 21 listed conditions, which include cancer, epilepsy, multiple sclerosis, AIDS, glaucoma, muscular dystrophy, and "intractable pain."

Effective January 1, patients who meet those criteria will receive a pardon for simple possession of marijuana. But that pardon is not a license to grow medical marijuana or to obtain it in Kentucky or any other state where it remains illegal. Possible sources of cannabis for Kentucky patients include Missouri, Illinois, Ohio, and West Virginia, neighboring states where medical marijuana is legal.

"To get the pardon," notes WKRC, the CBS affiliate in Cincinnati, "you will need to be charged and possibly arrested." Rob Sanders, commonwealth's attorney for Kenton County, worries that Beshear's order will cause confusion for police, prosecutors, and patients. "It's going to be hell on prosecutors and courts to try and sort out the mess created by haphazardly repealing a law without the use of the legislature," he told WKRC.

As for patients, Sanders said, "You still get handcuffed. You still get taken to jail. You still get booked into jail. I mean, you bond out of jail pretty fast if your only charge is possession of marijuana. You know, there's a lot of folks who won't realize that all this is going to take place. They think they've just got [a] get-out-of-jail-free card, and that's not what's going to happen."

Then again, police could use their discretion to refrain from arresting people for marijuana possession when they have the documentation required for a pardon. While a patient in that situation would not technically receive a pardon, he would still benefit from Beshear's order.

"Kentuckians suffering from chronic and terminal conditions are going to be able to get the treatment they need without living in fear of a misdemeanor," Beshear said in a press release. But he added that his pardon is "not a substitute for much-needed legislation to fully legalize medical cannabis." He said he would "work with lawmakers this upcoming session to push for full legalization of medical cannabis," which "would further provide relief for those suffering, fuel job growth and support Kentucky's farmers."