This spring, Kentucky became the 38th state to create a legal medical marijuana program. While medical marijuana legalization is great for Kentuckians and should help many patients, the state took an unusual path to get there.
In Nov. 2022, Kentucky Gov. Andy Beshear issued an executive order in which he highlighted the many proven ways medical marijuana is helping patients, the overwhelming public support in the state for medical marijuana, and lamented the Kentucky Senate’s failure to consider legislation to create a legal medical marijuana program after the House had approved legalization bills in 2020 and 2022.
“In the absence of legislation legalizing medical cannabis in Kentucky,” Gov. Beshear concluded, “I have reviewed what executive action could provide relief to Kentuckians and allow those suffering from chronic pain and other medical conditions to use medical cannabis.”
Gov. Beshear issued an order relying on his pardon power as governor to grant a forward-facing pardon to all individuals subsequently convicted of possessing marijuana if they could document a medical diagnosis for one of a range of 21 specified health conditions. These included cancer, epilepsy, AIDS, sickle cell anemia, and other serious conditions. To qualify for the pardon, a person would need to produce written proof of purchase demonstrating that the marijuana in their possession was purchased legally in another state.
As Reason magazine’s Jacob Sullum reported:
Because state legislators have not delivered a reform that the vast majority of voters say they want, Gov. Andy Beshear has issued a conditional pardon aimed at protecting people who use marijuana for medical purposes from prosecution. “Kentuckians throughout the Commonwealth suffer from a multitude of medical conditions from which they deserve relief,” Beshear, a Democrat, said in his November 15 executive order.
He noted the failure of “past efforts to legalize medical cannabis” in Kentucky’s Republican-controlled legislature, including two bills that passed the House of Representatives with bipartisan support but died in the Senate.
Contrary to what some news outlets reported, Beshear’s order did 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 several criteria.
To be eligible for the pardon, patients need a doctor’s “written certification” that they have been diagnosed with one of 21 listed conditions, which include cancer, epilepsy, multiple sclerosis, AIDS, glaucoma, muscular dystrophy, and “intractable pain.” They must buy no more than eight ounces of marijuana outside of Kentucky in a jurisdiction where such sales are legal, which they need to verify with receipts.
The pardon is not a license to grow medical marijuana or to obtain it in Kentucky or any other state where it remains illegal. Cannabis is legally available in several neighboring or nearby states, although some of them do not allow purchases by nonresidents.
Nevertheless, this unconventional application of the pardon power to actions that had not yet occurred invited immediate criticism from Republican state lawmakers—including several who were otherwise supportive of medical marijuana legalization. Many argued that Beshear had unconstitutionally usurped the legislature’s power to create law.
Pardons are ordinarily used to relieve a person of a criminal conviction for an action that has already happened and not on a prospective basis. Kentucky House Speaker David Osborne (R–Prospect) noted there was support for medical marijuana but complained the “democratic processes of our commonwealth and our constitution require the hard work of persuading the people’s representatives, reaching consensus, and enacting laws that everyone, even governors, must follow.”
Similarly, Rep. Shane Baker (R–Somerset) said, “You have the governor who has overstepped his authority in trying to create law; those are rights reserved to the policy-making branch of government, which is the legislature.”
Many marijuana activists supported Beshear’s actions, “I’m proud of Beshear for what he did, and we’ve got him on camera saying he will not rescind his executive order until legislators pass something equal to or better than what he’s got,” Patrick Dunegan, director of the Kentucky Cannabis Freedom Coalition, told WLKY.
Beshear acknowledged in the executive order that he was using an unconventional strategy to achieve a policy aim because he was frustrated with Republicans’ continued legislative inaction. When confronted with criticisms of overstepping his powers, Beshear told the press that he would be “happy” to rescind the order if the legislature passed a bill legalizing medical marijuana.
Gov. Beshear’s executive order did spur the Senate into action. Senate Bill 47 to create a limited but legal medical marijuana program in Kentucky secured large majorities in both chambers of the state legislature, and the governor signed it into law on March 31.
The Kentucky law is overly restrictive and allows fewer individuals to acquire medical marijuana than listed in Beshear’s executive order, as it only includes six qualifying conditions: cancer, chronic pain, chronic nausea, epilepsy, multiple sclerosis, or post-traumatic stress disorder. The state’s regulatory agency will license local producers and retailers and can name additional qualifying conditions in the future based on a review of scientific literature.
Unfortunately, participants in the new Kentucky medical program will also face limitations not typically found in most states with legalized medical marijuana, including a continued ban on smoking marijuana. The Kentucky law says medical cannabis products may only be ingested in other forms. Home cultivation is still banned, and local governments can ban cannabis operations. Patient registrations are valid only for 60 days, whereas they typically last one or more years in other states. There is also a limit to the allowable concentration of THC in medical marijuana flowers (35%) and concentrates (70%). These limitations make Kentucky’s new medical marijuana program one of the most narrow in the country.
Ultimately, Gov. Beshear was on the right side of the medical marijuana issue, and his bold ploy successfully motivated the legislature to pass a medical marijuana bill that will help many people in the state. However, policymakers from both major political parties should avoid infringing upon the separation of powers that serves as a bedrock of constitutional democracy. If an executive can openly contravene the will of an elected legislature, then the executive can arbitrarily deprive individuals of rights as easily as he may grant them.