This may be a gift, says Esau Freeman with MRI-ICT, the organization behind the 2015 petition to decriminalize marijuana in the City of Wichita, but it’s not the gift we were hoping for. 

Two years after the citizens of Wichita voted in favor of an ordinance to reduce the penalties for possession of small amounts of marijuana, the Wichita City Council is considering an ordinance that would make a portion of what the citizens voted for, the law.  Among many things, the proposed ordinance would make the “presumptive” fine for possession of marijuana $50.  The law also makes a policy of giving individuals charged with possession of a small amount of marijuana or marijuana paraphernalia a Notice to Appear instead of arresting them. 

Representatives of the City’s Law Department presented the proposed ordinance to the City Council during their Tues., May 2 meeting.  However, after hearing from representatives of MRI-ICT, the council voted unanimously to look at some of the concerns expressed by MRI-ICT before moving the ordinance forward. 

What the ordinance would do

Puts into the City’s code current practices of the Wichita Police Department.  Effective Dec. 28, 2016, the Wichita Police Department revised its policy 307.12 to provide that, absent any extenuating circumstances, individuals charged with possession of a small quantity of marijuana or drug paraphernalia, would not be arrested but given a Notice to Appear in Municipal Court.  This ordinance, if adopted, would escalate that practice from policy to City law. 

If adopted, this portion of the law would only apply to individuals over age 21.  While MRI-ICT members didn’t have a problem with the age limitation, they took issue with two other groups carved out of the policy.  As proposed, the Notice to Appear option would not be allowed for individuals who have been convicted of a felony within the preceding 10 years and  individuals who have been convicted of a Class A misdemeanor within the preceding five years. 

Also, individuals who had been convicted of a felony in the past 10 years were not eligible to receive a Notice to Appear, instead of being booked into jail.

Janice Bradley, a member of the MRI-ICT coalition, representing the organization Jobs and Education Not Incarceration (JENI), said this treatment for people with prior convictions was counter to the goals of her group that fights to reduce mass incarceration. 

“If they’ve done their time, why are we they continually punished,” queried Bradley?

The 10 year look back for felons is particularly stringent, Bradley noted, when even state law allows most felonies to be expunged five or fewer years after a sentence has been completed. 

Establishes a “presumptive” fine of $50.  Through the ordinance, the City attempts to adopt “the spirit” of the policy approved by the citizens of Wichita during the April 2015 election.  The ordinance establishes a “presumption” that the appropriate fine for possession of a small amount of marijuana and drug related paraphernalia at $50.  Legally this works, because the state law establishes a maximum, not a minimum, fine and the law only recommends a fine of $50 but doesn’t tie the judge’s hands.  Based on the circumstances, the judge could still set a higher fine.   

What the proposed ordinance doesn’t do. 

Change the crime from a misdemeanor to an infraction.  Even though the fine would be reduced to $50, an individual arrested for possession of a small amount of marijuana or drug related paraphernalia would still have a misdemeanor on their record.  So by paying the $50 fine, an individual would be pleading guilty to a misdemeanor.

The policy approved during the April 2015 election would have made the possession of marijuana an infraction, similar to a traffic or parking ticket, instead of a misdeamanor.  It was that reduction  — from a misdemeanor to an infraction — that lead Kansas Atty. General Derek Schmidt to immediately challenge the proposed vote. 

According to Schmidt and Wichita City Attorneys, under Kansas law, cities cannot adopt laws contrary to state laws, and by Kansas Law possession of marijuana and drug paraphernalia is a misdemeanor. 

MRI-ICT had hoped the Kansas Supreme Court would rule on the ability of cities to adopt a penalty lower than the state’s but instead, they threw out the election results based on a technicality in how the petition was worded. 

Since the election, MRI-ICT members had been quietly lobbying members of the City Council to adopt the ordinance the citizens of Wichita voted in favor of. Certainly, if the council adopted that ordinance, Schmidt would have challenged it.  Ultimately, MRI-ICT hoped the Supreme Court would have been forced to rule on ta City’s ability to adopt a law reducing the penalty for possession. 

Diversion, the other option.  As proposed, the City’s diversion process would remain the only way to keep a misdemeanor for possession off your record.  While the City makes diversion available for most municipal crimes, it doesn’t come cheap.  The fees for a marijuana possession diversion are $467, almost 10 times the $50 fee Wichita citizens voted for. 

MRI-ICT asked the City Council to consider reducing the cost of diverting marijuana possession charges.  The $467 diversion cost includes a $250 fine, plus a diversion fee, court costs and an application fee. 

If “the spirit” of the ordinance change is to adopt the policy approved by the citizens, MRI-ICT representatives agreed, a change must include a low-cost way for citizens to keep marijuana possessions off their record. 

Other changes made by the ordinance 

Bring the City ordinance in compliance with State law.  Last year, the Kansas legislature adopted an ordinance decreasing the penalty for first time possession of a marijuana from a Class A to a Class B misdemeanor.   A Class A misdemeanor is punishable by a fine not to exceed $2,500 and one year in jail.  A Class B misdemeanor is punishable by a fine not to exceed $1,000 and six months in jail.  Previously under state law, a second conviction for possession of marijuana was considered a felony, but the legislature reduced the second possession to a Class A misdemeanor.  The proposed City ordinances brings the City’s law into compliance with the state law. 

Establishes a fee for laboratory services provided by the FBI.  This is another move to bring City law into compliance with State law.  State law requires a laboratory fee to be assessed by the court if lab services are provided by the Regional Forensic Science Center or the KBI.  If lab services are utilized the state statute currently require the defendant be assessed a $400 testing fee, unless the defendant is indigent.   Also, if an individual is found not guilty, they would not have to pay this fee.   

Wichita Police Chief Gordon Ramsay, who supported the ordinance as submitted, didn’t voice any opposition to considering some of the proposed changes.  After considering some of the concerns voiced by MRI-ICT the ordinance may be back on the City Council agenda as early as Tues., May 16.  

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