If Kansas City voters pass a ballot measure next month, getting caught with pot could mean just a $25 fine and no jail time.
But some city officials warn there’s a catch.
The measure on the April 4 city election ballot would lower the maximum fine for marijuana possession in city court to $25 from $500 and eliminate jail time as a penalty. Under the current ordinance, a sentence of 180 days is possible.
The trick, city prosecutors say, is that despite the intentions of its backers, the move might actually make things harder on people it’s supposed to help. Removing jail time from the equation means the accused won’t be eligible for a defense attorney from Legal Aid of Western Missouri.
Legal Aid represented about 59 percent of defendants in city court marijuana possession cases in the last fiscal year, according to a Star analysis of court data. Nearly 70 percent of the defendants were black, in a city that is about 30 percent black, even though studies show both white people and black people use the drug at about the same rate.
Without an attorney to help the defendant beat the case or make a deal with prosecutors, it’s more likely that a drug charge will remain on their record for years and haunt them later.
“I think what concerns me and some City Council members is, by making this a no-jail option, it will encourage people to plead guilty because it seems so innocuous,” said City Prosecutor Lowell Gard. “But it’s still a guilty plea to a controlled substance. And most employers don’t see that as a plus on your resume.”
The issue landed on the ballot through a petition drive led by the Kansas City chapter of the National Organization for the Reform of Marijuana Laws.
Jamie Kacz, executive director of NORML KC, said the unintended consequences of the measure can be managed and that Kansas City residents who signed the petitions sent a message that they don’t want people jailed or fined heavily for marijuana offenses.
“This is a baby step,” Kacz said. “If it were up to us, there would be no jail and no criminal record, period.”
Now the group is working on organizing a network of attorneys who could help defendants in city court who won’t be represented by Legal Aid.
The local push mirrors others across the country driven in part by the conviction that lowering penalties keeps people out of jail and reduces the harmful impact of law enforcement that falls disproportionately on low-income and minority residents.
Twenty-nine states plus Washington, D.C., have legalized marijuana either for recreational or medical use. Missouri made a small change this year when it eliminated jail time for first-time offenders convicted of possessing less than 10 grams of marijuana. Many cities, including St. Louis and Columbia, have taken steps toward reduced fines and penalties.
Kansas City passed an ordinance in 1994 that allows police to send marijuana possession cases to city court, where they are technically not criminal matters but more akin to traffic tickets.
The April ballot question applies only to people charged in Municipal Court with possessing 35 grams or less of marijuana. Larger amounts normally mean charges in a state court, where the law would remain the same. Kansas City police still have the option of sending any possession case to the local county prosecutor for state charges.
1,200 Approximate number of marijuana possession cases handled in city court
The Municipal Court handles about 1,200 marijuana possession cases a year. Most defendants are accused of having small amounts of marijuana — usually less than 10 grams.
People rarely go to jail for marijuana possession in city court cases, said Gard, the prosecutor. He’s seen it happen fewer than a dozen times in his 34 years in the prosecutor’s office.
But the threat of jail compels defendants to enter plea bargains to lesser charges, such as littering, or diversion agreements that can keep the offense off the person’s record and often include drug testing and treatment.
And without the possibility of jail, the defendants are not eligible for a defense attorney provided free of charge through Legal Aid.
Only with an attorney can a defendant obtain a diversion agreement or a plea bargain, Gard said. The city prosecutor also argues that the sale of even small amounts of marijuana isn’t harmless — it feeds into a wider system of criminal activity.
For those who can’t afford a private attorney, pleading guilty to the possession charge and paying a $25 fine — plus nearly $50 in court costs — may be an attractive option. It’s less than the fines levied now — on average about $300 — and also less costly than a diversion agreement that costs $300, plus as much as $150 for drug testing and drug education classes.
Long term impact
Even if the fine is low, having a drug offense on your record can be a liability, said Clyde McQueen, president of the Full Employment Council, a Kansas City-area job agency.
Nearly all of the employers the agency works with do background checks on prospective hires. He advised against taking any drug conviction lightly.
“Almost any infraction that you have, whether something as small as a traffic ticket unpaid, a failure to show up in court, those things are recorded,” McQueen said. “And when you’re competing and you have two people there, one person with a clean report and one person with a dirty report ... they might come back and tell you, that’s the way it is.”
Those long-term effects were on the mind of Kansas City council members such as Alissia Canady, a former Jackson County prosecuting attorney, who expressed concerns about the measure.
“What they essentially did was ‘fix’ a problem that isn’t a problem,” Canady said. “People aren’t going to jail for marijuana charges.”
City ordinance violations for marijuana won’t block anyone from obtaining federal student aid. But, Canady suggested, it could be a stumbling block when seeking other opportunities in education or housing.
County prosecutors in the area have not weighed in on the measure publicly. Jackson County prosecutors are watching to see what happens, said Mike Mansur, a spokesman for the prosecutor’s office.
“It’s a concern,” Mansur said. “Obviously public perception impacts the criminal justice system.
“What if more defendants don’t go to drug court or don’t take a plea because they want to take their chances on a jury?”
The ballot measure would also eliminate city charges for marijuana-related paraphernalia possession, which carries penalties of jail time from 15 days to six months and fines from $100 to $500.
The long-term harm of a city marijuana violation on a person’s record may be mitigated by a bill passed last year in Missouri that will reduce the waiting time for expunging many nonviolent crimes from a criminal record. When the law goes into effect in 2018, misdemeanors and lesser offenses could be taken off a record three years after the arrest.
In addition to the question of marijuana penalties, the April 4 election will also decide on $800 million in bond issues, a sales tax increase targeted at East Side economic development and other issues.