By the time Melonie Alvarado appeared for her probation-violation hearing in Courtroom 905 of Philadelphia’s Stout Center for Criminal Justice this May, Common Pleas Court Judge Scott DiClaudio was already frustrated.

Alvarado, dressed for court in heavy mascara and an oversized hoodie, was nearing the end of a three-year probation term for a 2016 drug-dealing case, her first criminal conviction, but now she was in trouble for using marijuana. DiClaudio had given her 45 days to get clean — but Alvarado, who relies on the drug to manage chronic anxiety, continued to fail screens for marijuana.

“Where’s your medical marijuana card?” the judge demanded, knowing she did not have one. “What leads you to believe you can get high when you're on my supervision and fail 15 drug tests in a row?”

Revocation A judge’s decision, in response to a violation of the conditions of probation, to terminate probation and impose a new sentence of incarceration or further probation.

Probation A sentence to community supervision imposed in lieu of incarceration.

DiClaudio revoked her probation and mulled his options: more probation, community service, court-ordered drug treatment, or even prison.

“You need drug treatment,” he told her. “Jail might help.”

JESSICA GRIFFIN / Staff Photographer Philadelphia Common Pleas Judge Scott DiClaudio, in the Stout Center for Criminal Justice, urges those on his probation to abstain from marijuana or obtain a medical-marijuana card.

He proposed 10 days in jail, but, relenting, allowed her to serve a month of house arrest, followed by 22 months of parole and three more years of probation.

Alvarado received the new, nearly five-year sentence stoically. “What more can happen to me?” she said later, a verbal shrug. Though she wants off probation, she feels marijuana works far better, with fewer side effects, than any antianxiety medication she’s been prescribed — and she can’t afford the fees for the medical card and doctor’s visit.

And, like many other people on probation across Philadelphia, she struggles to reconcile the judge’s strict orders with shifting norms around marijuana and with the drug’s evolving legal status: Philadelphia has decriminalized small amounts of the drug, making marijuana possession a summary offense, like public drunkenness or littering, meriting a citation rather than criminal prosecution. District Attorney Larry Krasner announced his office would not charge people with marijuana possession, or seek to revoke probation for use of the drug. Medical-use cannabis dispensaries are popping up across the city. And the lieutenant governor, crisscrossing the state on a listening tour, reported that the Wolf administration and a majority of the public support legalizing recreational use.

Even as most Philadelphians are free to get high with impunity — facing at worst a $100 fine — judges and probation officers continue to punish people for using the drug, resulting in court-mandated treatment, extended probation, and even incarceration.

It’s one factor contributing to Philadelphia’s bloated levels of community supervision and of incarceration — which are among the highest of any big city and come at an enormous cost. Philadelphia spends more than twice as much per capita as other cities on corrections, and nearly twice as much on judicial and legal costs.

And it is a significant factor, going by the results of 53,313 drug tests administered by the Philadelphia adult probation department in 2018. The majority of those tests were negative for any drug — but among the failed screens, about half were positive for marijuana alone, according to court data. That’s more than 11,000 tests flagged just for weed.

Solution: Stop testing for THC As officials seek to reduce violations for marijuana, one answer might be to simply cease testing for it. Who’s doing it? Washington state, which has legalized recreational marijuana, stopped testing for it in 2014. And New York City, where marijuana is decriminalized but not legal for recreational use, passed a law banning THC testing for most people on probation this spring. Can it happen here? Philadelphia City Council held a hearing in February to examine the possibility of ceasing testing, but city leaders have so far been reluctant to move ahead of state law. Probation-reform legislation proposed in the state House would not bar testing but would prohibit courts from violating people for using marijuana if they have medical authorization. Expand

Philadelphia’s chief defender, Keir Bradford-Grey, called marijuana screening a waste of resources that doesn’t make the city any safer:

“Many of them are using it for PTSD and trauma. Many of them are using it for pain. So these reasons are benign in terms of our notion of public safety — and this is why we are creating an endless cycle of probation for people who are being tested this way.”

And, at a time when the opioid crisis is killing more than a thousand people each year in Philadelphia, the courts’ most intensive drug-treatment and diversion programs are squandered on marijuana users.

For instance, just 18% of those coming out of Philadelphia Drug Treatment Court in 2018 were opioid users; 75% were marijuana users.

A spokesperson for Philadelphia’s court administration and probation department declined repeated requests for interviews.

One way some jurisdictions are avoiding such outcomes is to simply stop testing for marijuana. Among them, New York City this year enacted a law barring its probation department from testing for marijuana in almost all cases.

But in Pennsylvania, probation officials and judges continue to craft their own — often conflicting — responses to marijuana use.

More Than 11,000 Positive Marijuana Tests Philadelphia’s adult probation department administered 53,313 drug tests in 2018. Only 40% of tests found any drugs — and half of those positive tests were for marijuana only.

In September, Lebanon County Probation prohibited use even for those with medical marijuana cards. For people on probation who were managing health conditions with marijuana, the consequences were in some cases severe. One woman, Melissa Gass, 41, stopped using the drug to manage her epilepsy after her probation officer told her continued use would put her in violation. Soon, she was experiencing six or seven seizures a day.

In October, the ACLU of Pennsylvania sued on behalf of Gass and two other people on probation, and the state Supreme Court agreed to exercise its extraordinary King’s Bench authority — a power reserved for matters of “immediate public importance” — to review the case and temporarily bar Lebanon County from implementing its policy.

“We are reading this as a statewide injunction,” said Vic Walczak, legal director of the ACLU of Pennsylvania, which has identified six other counties — Elk, Forest, Indiana, Jefferson, Lycoming, and Northampton — that ban medical marijuana for those on probation.

But there’s no immediate relief for people like Jacob Makaravitz, 29, who are already incarcerated on probation violations. This fall, he went to a doctor and obtained a medical marijuana card to manage his nerve pain, but failed to get his probation officer’s permission. In October, a Lackawanna County judge sentenced him to one to three years in state prison for the unauthorized use.

It’s just pure insanity. You can sentence someone one to three years for a medical marijuana card prescribed to him by a doctor. James McGurl, a former heroin user who uses marijuana to sustain his recovery

James McGurl, 31, who was in drug court with Makaravitz, learned of his friend’s incarceration with alarm. “It’s just pure insanity. You can sentence someone one to three years for a medical marijuana card prescribed to him by a doctor,” McGurl said.

McGurl himself is a former heroin user who got clean through a 12-step program. “Marijuana has been a great help and aid to me in my recovery,” he said — but it was a marijuana charge that saddled him with a felony conviction and a sentence to intermediate punishment. “Oddly, after I finally got clean, I ended up in jail and on drug court,” he said. “Where were they when I was robbing people’s houses and being a total scumbag?”

In Philadelphia, the court accepts medical marijuana cards, but probation administrators and judges have conflicting ideas about how to deal with those who use marijuana without authorization, according to Laurie Corbin of the Public Health Management Corp., which holds an $8 million contract with the city to provide assessment and treatment for court-ordered clients.

“There’s a real concerted effort not to be bringing people in [to jail] with charges related to marijuana,” she said, “but then there are other behaviors related to marijuana use, where [they’re] breaking and entering or doing other kinds of crime.”

DiClaudio said his thinking has evolved since he sentenced Alvarado to house arrest in May: He’s now more likely to order marijuana users to join him and court staff for community-service than to incarcerate them. He said he issues anyone using marijuana on his probation at least three warnings, and ends up jailing less than 1% of those on his probation for marijuana-related violations.

“It’s absolutely necessary to enforce probation violations that are brought to my attention … prior to them becoming more serious transgressions,” he added.

JESSICA GRIFFIN / Staff Photographer Melonie Alvarado, on the front porch of her mother's house, where she had to remain while she was on 30 days of house arrest with electronic monitoring in June. She wasn't able to stay in her own apartment because her landlord wouldn't permit house arrest on the property.

To Alvarado, it felt as if what she was really being punished for was poverty: If she’d had $50 for the state ID card, plus $150 or so for a doctor, none of this would have happened.

No matter, she said. She’d finally landed a job, at a cellphone store, and her first paycheck would go to that card. “If I can go and get it, all this would go away. It's a matter of money,” she said.

The judge gave her permission to work while on house arrest. But later, after she informed her new employer she was being monitored electronically, he fired her: He didn’t want all that trouble at his place of business.