Local Governments Act When States and the Federal Government Refuse to Lower Penalties for Small Drug Offenses

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Howard Mahan

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Howard Mahan is a 3L at the University of Kansas. He earned his bachelor’s degree in business management his MBA from Kansas Wesleyan University. Howard is interested in corporate, environmental, and renewable energy law. Outside of law school, Howard is an active guitarist for several different bands and artists. 

Currently 33 states allow some form of medical marijuana, and 11 states allow some form of recreational marijuana.[1] Kansas Governor Laura Kelly announced that she would support a law allowing Kansas to join those states allowing medical marijuana when she was elected in 2018.[2] However, she has yet to have the opportunity to do so. HB 2742, which would have legalized medical marijuana in Kansas, died in the Kansas House of Representatives Committee on Federal and State Affairs last May.[3] Currently, the United States Supreme Court has declined to hear any cases on the issue, with only one currently being considered on the docket.[4]

Two local governments, one in Kansas and one in Missouri, are useful examples of local action, through both the legislative process and prosecutorial discretion.[5] One recent example is Douglas County, Kansas, where the District Attorney announced a policy in the fall of 2019 to stop prosecuting simple marijuana possession offenses,[6] immediately after the Lawrence City Council passed Ord. 9568, which lowered the fine for first time marijuana possession to just $1.[7] In February of 2020, Mayor Quinton Lucas of Kansas City, Missouri, announced a pardon program for past municipal marijuana offenses.[8] In July of 2020, Mayor Lucas and the City Council of Kansas City, MO passed Ordinance 200455, which removed Section 50-10(c) (making it a crime to possess small amounts of marijuana) from Kansas City’s ordinances entirely.[9]

Both the Kansas City and Douglas County decisions cite the failures of previous drug enforcement laws which have historically treated low income citizens and racial minorities harsher in sentencing.[10]  While the principle of unequal enforcement of drug laws on racial minorities and low income citizens is not new, it is worth mentioning because it has been the main focus for spurring local action. A 2020 report by the Missouri ACLU found in Missouri, minorities are 2.6 times (as compared to the national average of 3.64 times)  more likely than whites to be arrested for marijuana possession and that those racial disparities failed to improve in Missouri between 2010 and 2018.[11]

While states are slow to respond, current and aggressive action is being taken to reduce this discrepancy on a local level. 

[1] Audrey McNamara, These States Now Have Legal Weed, and Which States Could Follow Suit in 2020, CBS News (Jan. 1, 2020, 3:55 PM), https://www.cbsnews.com/news/where-is-marijuana-legal-in-2020-illinois-joins-10-other-states-legalizing-recreational-pot-2020-01-01/.

[2] Jonathan Shorman, Legal Marijuana in Kansas? Incoming Governor Supports Medical Use, The Wichita Eagle (Nov. 16, 2018, 5:00 AM), https://www.kansas.com/news/politics-government/article221673095.html.

[3] HB 2742, 2020 Leg., Reg. Sess. (Kan. 2020); see also HB 2742, Kansas Legislature, http://www.kslegislature.org/li/b2019_20/measures/hb2742/ (last visited Oct. 7, 2020).

[4] Sarah Jarvis, Cannabis Attys Press Justices To Hear Pot Legalization Case, Law360 (Sept. 15, 2020), https://www.law360.com/articles/1309709 (discussing the pending case of Washington v. Barr).

[5] Douglas County DA No Longer Filing Simple Marijuana Possession Cases, Douglas County Kansas (Oct. 17, 2019, 3:15 PM), https://www.douglascountyks.org/depts/district-attorney/county-news/2019/10/17/douglas-county-da-no-longer-filing-simple-marijuana.

[6] 41 Action News Staff, Douglas County to No Longer Prosecute Simple Marijuana Possession, 41 KSHB Kan. City (Oct. 17, 2019, 4:28 PM), https://www.kshb.com/news/local-news/douglas-county-to-no-longer-prosecute-simple-marijuana-possession (discussing correcting racial inequities as the predominate factor in the decision).

[7] Ariel Rothfield, Lawrence Inching Closer to Lowering Marijuana Fines to $1, 41 KSHB Kan. City (Mar. 19, 2019 9:55 AM), https://www.kshb.com/news/local-news/lawrence-inching-closer-to-lowering-marijuana-fines-to-1 (discussing the now passed and codified Lawrence Ordinance 9568, lowering penalties for first time marijuana possession to $1); see also, Lawrence, Kan., Ordinance 9568 (2019).

[8] Allison Kite, ‘A Question of Fairness’: Mayor Details Steps to Pardon Kansas City Marijuana Crimes, The Kan. City Star (Feb. 18, 2020, 5:37 PM), https://www.kansascity.com/article240388706.html.

[9] Kansas City, Mo., Ordinance 200455 (2020).

[10] Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System, The Sentencing Project (April 19, 2018), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/ (“Although African Americans and Latinos comprise 29% of the U.S. population, they make up 57% of the U.S. prison population. This results in imprisonment rates for African-American and Hispanic adults that are 5.9 and 3.1 times the rate for white adults, respectively—and at far higher levels in some states . . . . Among youth, African Americans are 4.1 times as likely to be committed to secure placements as whites, American Indians are 3.1 times as likely, and Hispanics are 1.5 times as likely.”)(internal footnotes and citations omitted).

[11] Black People Still 2.6 Times More Likely to Get Arrested for Marijuana in Missouri, ACLU Mo. (April 23, 2020, 11:15 AM), https://www.aclu-mo.org/en/news/new-aclu-report-black-people-still-26-times-more-likely-get-arrested-marijuana-missouri.

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