Kentucky Gov. Andy Beshear signed an executive order Tuesday to legalize the possession and use of medical marijuana by certain eligible individuals in the state, so long as it was purchased legally outside Kentucky and amounts to less than eight ounces.
Kentucky is currently one of just 12 states to still outlaw marijuana for both medical and recreational purposes, despite public polling showing the legalization of medical marijuana is quite popular among its residents.
Beshear said he would have preferred the state legislature pass a law fully legalizing and regulating medical cannabis, but he was taking executive action after the repeated failure of a bill to do so in the Kentucky General Assembly.
Noting the many Kentuckians with chronic and terminal illnesses are prohibited from legally buying marijuana in the state, Beshear said those individuals “will soon be able to get the help they need without living in fear of being charged with a misdemeanor.”
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When will medical marijuana be legal in Kentucky?
The executive order on medical marijuana will go into effect Jan. 1
The executive order lists 21 medical conditions that would make a Kentuckian eligible to use and possess medical marijuana, so long as a physician diagnosed the individual with the condition. Those conditions include cancer, epilepsy, multiple sclerosis, post traumatic stress disorder, Lou Gehrig’s disease and Parkinson’s disease.
Eligible Kentuckians possessing medical marijuana must have a receipt of its purchase in another state. While some states with medical marijuana do not allow nonresidents to purchase it, Beshear said Tuesday that individuals can also buy legal recreational marijuana in those states.
Beshear order faces opposition from Republicans
Beshear said that while some may criticize his order for not going far enough, he said there are “limitations on executive authority” that prevented him legally from going as far as he would have liked.
“What we’re trying to do is take a measured step to help those that are struggling, while ensuring they can purchase from a safe and reliable place,” Beshear said. “And ultimately, nobody should feel like a criminal when they can legally purchase it in one of our neighboring states and use it.”
Beshear was flanked at the press conference by Justice and Public Safety Cabinet Secretary Kerry Harvey and Public Protection Cabinet Secretary Ray Perry, who both said Beshear was legally and morally justified in taking the action.
However, Kentucky Attorney General Daniel Cameron disagreed, issuing a statement saying that Beshear did not have the legal authority to do so.
“Time and time again, the governor has attempted to bypass the policy-making authority of the General Assembly,” stated Cameron, add that Tuesday’s order was “another example of his attitude toward governing.”
“As always, he seems to relish ruling by decree instead of by the law. Kentucky’s General Assembly is the sole and final policy-making body of this state and they must be allowed to have their say.”
Beshear also signed a second executive order regulating the sale of Delta-8, a derivative of hemp with THC that was recently declared by a judge to be legal in Kentucky.
Cameron indicated his office was reviewing the two executive orders “to determine next steps.”
Beshear’s orders also faced immediate criticism from Republican supporters of legalizing medical marijuana, including Rep. Jason Nemes of Louisville, the lead sponsor of the bill that passed the state House twice but failed in the Senate.
While saying that he still “fervently” supports medical marijuana, Nemes said he also stands by the rule of law and that the governor’s “unprecedented power grab cannot stand.”
“Today, the Governor has granted himself a power that exists nowhere in the United States and finds no refuge in Kentucky’s Constitution,” Nemes said. “If the pardon power — which is where he claims to have authority to rewrite entire chapters of criminal law — gives him the authority he claims, then he has become a law unto himself and he is the legislature, the executive, and the judiciary all at once.”
Sen. Whitney Westerfield, R-Crofton, the chair of the Senate Judiciary committee who became a supporter of Nemes’ bill for the first time in the 2022 session, also criticized Beshear’s order.
“Gov. Beshear, ever serving only his own political interests, may do more harm than good in the effort to legalize marijuana even for medicinal use,” Westerfield tweeted. “Regardless of whether you support marijuana legalization of any kind, the Governor has no power to make its possession legal in KY.”
Beshear said he was within his legal authority to make the orders Tuesday but still hoped Nemes’ bill passes in the upcoming session to provide more medical relief to those who need it, by statute.
“(Nemes) got it through the House, that’s a good thing,” Beshear said. “Now we need to get it through the Senate.”
What other states near Kentucky have legalized marijuana?
Missouri is the most recent of Kentucky’s three border states to approve the legalization of recreational marijuana, as its voters approved a referendum to do so in last week’s election. Virginia legalized it last year, as did Illinois in 2019.
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West Virginia and Ohio also have legal medical marijuana, with the latter state allowing nonresidents to purchase it if approved by its Board of Pharmacy on a state-by-state basis. Missouri has had legal medical marijuana since 2018 and is the only state that allows nonresidents to purchase it without restrictions.
Why hasn’t Kentucky legalized medical marijuana before now?
A bill to legalize and regulate medical marijuana has passed the state House twice in recent years only to die in the Senate without a vote or even a committee hearing.
Beshear said in April he would explore what executive actions he may be able to take on the issue, then in June he created his Team Kentucky Medical Cannabis Advisory Committee.
The committee received feedback online and in town halls over the summer, with its September report indicating strong support for legalization. The committee received 3,539 comments online, with 98.6% of those supporting medical marijuana legalization.
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At the town halls, the committee heard from parents whose children are ill and need relief, as well as advocates who said cannabis could be an important tool in fighting addiction as an alternative to prescribing opioids for pain relief.
What is the US doing in terms of recreational marijuana?
In October, President Joe Biden said he was considering rescheduling marijuana to a lower level under federal law, while also issuing pardons for thousands of people with federal convictions for simple possession of marijuana and asking governors to do the same for those with state convictions.
Beshear later said he would ask for a review of how many Kentuckians would be eligible for state pardons for convictions only involving marijuana possession.
Under Kentucky law, marijuana possession is a misdemeanor punishable by up to 45 days in jail, but it can be expunged and in most cases is handled as a citation. Beshear said no one in Kentucky is currently serving a sentence in jail solely for simple possession of marijuana.
Reach reporter Joe Sonka at jsonka@courierjournal.com and follow him on Twitter at @joesonka.