Prosecuting for simple possession of marijuana has become more difficult in the state because the majority of Kansans favor decriminalization, prosecutors say.
In addition, a Kansas law reducing penalties for marijuana possession, which took effect July 1, has some flaws, Saline County’s chief prosecutor says.
A Docking Institute of Public Affairs survey conducted in 2015 found 63 percent of Kansans favored decriminalizing recreational marijuana use so that personal possession would only involve a fine, rather than jail time.
Saline County Attorney Ellen Mitchell said Kansas Highway Patrol troopers who stop cars on interstate highways no longer arrest people for possession of small amounts of marijuana.
Officers with the Salina Police Department and the Saline County Sheriff’s Office make arrests, but the county attorney has to decide whether to file charges.
“The difficulty is getting these people to appear when they live in another state,” she said.
The problem is people who live out of state often bond out of jail, then don’t return for court appearances, she said.
“Interstate extradition on misdemeanor cases is discouraged and is expensive. So the case is just going to sit on our docket,” Mitchell said.
Colorado effect
Kansas Attorney General Derek Schmidt conducted a survey to try to gauge the effects in Kansas of the legalization of marijuana in Colorado.Staff in the Leavenworth County Attorney’s Office said they observed a decline in juror willingness to convict for marijuana-related offenses in their county following the change in law in Colorado.
“Prosecutors in my office have reported to me that they have experienced a substantial decline in our jurors’ willingness to convict for marijuana-related offenses since Jan. 1, 2014. It is now very common for jurors to either acquit or to convict of lesser-included marijuana offenses even when the evidence is strong or overwhelming,” a Leavenworth County prosecutor wrote on the survey.
Older jurors opposed marijuana prosecutions because they had friends or family who used marijuana for medicinal purposes, the prosecutor wrote.
“Younger jurors commonly explain that they view marijuana as equivalent to or even less serious than tobacco or alcohol and they oppose the use of tax funds to prosecute marijuana cases. The vast majority of jurors have expressed their support of legalization of marijuana for medical purposes only, with heavy taxation used to support education and other public services,” the prosecutor wrote.
According to the attorney general’s report, it is not clear whether Colorado’s legalization has led to a significant overall increase in the number of marijuana crimes in Kansas, although some jurisdictions reported an increase.
“One of the primary effects of Colorado marijuana legalization seems to be that high-grade Colorado marijuana has replaced lower-quality marijuana from Mexico and homegrown marijuana,” the attorney general reported. “There has also been a significant increase in the amount of marijuana edibles and products such as waxes and oils in Kansas, which raises serious concerns, particularly with respect to juveniles.”
Law had flaws
House and Senate bills that would eliminate criminal and professional penalties for use of medical marijuana died in committee during the last two sessions of the Kansas Legislature.Sen. David Haley, R-Kansas City, said he plans to introduce a similar bill this session.
A Kansas law which took effect July 1 reduces penalties for marijuana possession, but it has some flaws, Mitchell said.
The bill reduced the penalties for possession of marijuana so that it’s not a felony until the third offense; previously, a second offense was a felony. However, the penalty for possession of paraphernalia wasn’t changed.
“They made possession of marijuana a B misdemeanor but possession of THC (tetrahydrocannabinol) is still an A misdemeanor. Possession of paraphernalia is an A offense, higher than marijuana. It shouldn’t be a greater offense to possess rolling papers than marijuana,” Mitchell said.
She said she does not have a position on legalization of marijuana.
“The Legislature passes a law and we enforce it,” she said.
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