Prisons are typically highly restricted environments. Whether it’s food, phone calls, or recreation, everything is controlled. Intoxicating substances are usually prohibited, although contraband sometimes makes its way to cells. However, a German court has ruled that incarcerated individuals may have the right to possess cannabis in their cells.
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The case centers around a defendant serving a 25-month prison sentence, who was found with over 45 grams of weed extract in his cell. A Berlin court ruled that the prisoner was not breaking any laws, as a jail cell is considered a “habitual residence.” German law defines this as a place where a resident has lived for at least six months and where they conduct their day-to-day activities.
When Germany legalized recreational marijuana, it declared that people could have up to 50 grams of cannabis product at home. Since the prisoner in this case was technically their “habitual residence,” their extract was not illegal.
The court noted that the recently passed Cannabis Act does not restrict possession in prisons. It does ban weed on military bases, school grounds, and other places where children congregate. Correctional facilities are allowed to set their own rules around cannabis consumption, but the facility in question has not set any restrictions.
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The unique ruling could set a precedent for other countries as they enact cannabis reform. Advocates in the U.S. have argued that incarcerated medical marijuana patients should have access to the plant, claiming the restriction violates the Eighth Amendment’s ban on cruel and unusual punishment.
That argument has never been successful in an American court, particularly since cannabis is still a Schedule I narcotic on the federal level. Illinois lawmakers even passed a bill after concerns that a potential loophole in the state’s medical marijuana bill could grant prisoners the right to access the plant. Things could change if federal cannabis reform were to occur. Germany could be the model to show how to get it done.
