Sedgwick County threatens to bill Wichita for minor marijuana cases after city decriminalizes

Eduardo Castillo/The Wichita Eagle

The Sedgwick County Commission has ordered a cost analysis of the Wichita City Council’s decision to decriminalize marijuana, exploring how much it would cost the county to book people in jail for misdemeanor marijuana offenses and pursue charges in district court.

Commission Chairman David Dennis said Wednesday he plans to bill the city for any future costs of jailing and prosecuting people on misdemeanor marijuana charges.

“At what point do we start charging the city of Wichita for this process,” Dennis said. “Because we’re going to bill them for all the people that go into our jail.”

Mayor Brandon Whipple, whose proposal to decriminalize marijuana and fentanyl test strips passed 5-2, said “the county should do a legal analysis on that before they do a financial analysis.”

“I welcome a deep dive into just how much money the county is willing to waste on going after minor marijuana possession,” Whipple said. “I think it will be really telling.”

Marijuana possession is illegal in Kansas and federally. But on Tuesday, the Wichita City Council voted to repeal the city’s marijuana laws and stop prosecuting marijuana charges in Municipal Court, joining nearly 100 localities across the country that have decriminalized minor marijuana possession offenses.

Wichita police and Sedgwick County District Attorney Marc Bennett have discretion to not arrest or prosecute minor marijuana possession charges. But the City Council cannot direct Wichita officers to not enforce state law and has no authority over the district attorney.

Under the city’s ordinance, police could give marijuana possessors a notice to appear in court instead of taking them to jail. If the Wichita Police Department decides to begin arresting people for minor marijuana possession, the decision could shift 750 to 850 cases a year that the city has been prosecuting to Sedgwick County District Court.

Bennett said misdemeanor marijuana cases are not a high priority for his office and he lacks the resources to take on up to 850 additional cases a year.

“I do not have the resources to pull away from my other obligations to this community to simply become the weed czar of Sedgwick County,” Bennett said. “That’s not my role. I have 122-125 homicides pending right now. I’m trying one next week myself. I have lawyers trying rape cases and drive-by shootings.”

But Bennett stopped well short of a committing not to bring charges for low-level marijuana possession, as has been done in jurisdictions around the country, including in Kansas.

In 2019, in response to reduced penalties for marijuana in Lawrence, Wichita and Kansas City, Missouri, Douglas County District Attorney Charles Brandon announced his office would no longer file criminal charges for small amounts of marijuana possession.

“I’m not going to turn a blind eye to it,” Bennett said Wednesday. “And we will take cases on a case-by-case basis. We’ll look at them, and if the situation warrants, we’ll file some of these cases.”

However, Bennett said he doesn’t know how many cases he will file. Although marijuana is illegal at the federal level, it’s unlikely that federal prosecutors will take on any of the city’s misdemeanor marijuana cases, he said.

“The feds are not going to pick up a bunch of misdemeanor cases at the federal level and literally make a federal case out of them,” Bennett said. “That’s not a good use of their resources.”

Bennett said he doesn’t know at this point how much it would cost the county to file charges.

“In terms of me giving an estimate on how many of those cases or what percentage of those cases we’re going to have to absorb, I don’t know yet,” Bennett said. “Could be a lot, could be a little.”

Whipple said he welcomes the county’s financial analysis.

“We’re getting out of the marijuana conviction business,” Whipple said. “If the county wants to stay in, that’s their business. The fact that they don’t want to do it themselves proves that it’s a waste of money. In a way, we’re following their example.”

Political maneuvering

The city’s move to decriminalize doesn’t take effect until Sept. 23. A second reading of the change is required next week before it officially passes.

County officials moved Wednesday to mount a public pressure campaign ahead of the final vote.

Dennis said he would like county staff to come up with a cost estimate before next week’s City Council meeting.

“Between now and the time that they have the next reading and pass this, we need to be ready to react with a resolution immediately so that we can start recovering the expenses that they’ve just dumped on Sedgwick County,” Dennis said.

Commissioner Pete Meitzner asked Bennett to prepare a “flow chart” of the potential costs decriminalization could have on the county, which Bennett agreed to prepare.

“That way the public would understand this, too,” Meitzner said. “I don’t know if it would have an exact cost, but I could see a step that says, ‘There is a cost.’”

Bryan Frye, one of two Wichita council members to vote against decriminalization after his motion to delay for 30 days failed, addressed the County Commission at Meitzner’s request.

“Do you think that, in your opinion, that the City Council members understood this, all of these impacts, was that discussed yesterday?” Meitzner asked.

“I wish I could say yes,” Frye said. “But I don’t believe so.”

He said he worries that the council decision could have unintended consequences if Wichita police arrest people for marijuana possession and the district attorney brings charges.

“I think this potentially could have much greater financial ramifications on those individuals, between impound fees, attorney fees, higher fines, etc., and I think the idea of placing a less financial burden on people that are charged with simple possession is not a consequence that was considered,” Frye said.

Cops with pot convictions

Sedgwick County Sheriff Jeff Easter called marijuana possession and fentanyl test strips, which the city also voted to decriminalize on Tuesday, “two completely separate issues.”

But Easter also gave an example of how law enforcement has discretion to not arrest people for misdemeanor possession of an illegal substance.

“We are making the decision, if we run into a fentanyl test kit and that’s all they possess, then we will make a suspect case on it, and we will seize the evidence because it’s paraphernalia. It’s illegal, so we can’t turn a blind eye to that stuff. Are we going to arrest them and book them? No, we are not.”

Wichita Police Department officials have declined to comment on whether its officers will arrest people for minor marijuana charges or fentanyl test strips. The department is undergoing a leadership change after former Chief Gordon Ramsay resigned in March, and interim Chief Lem Moore announced his retirement by October.

Whipple said any candidates for chief would likely be evaluated, in part, on whether they choose to pursue low-level marijuana possession arrests, which disproportionately affect Black Wichitans. City data shows Black people are 10% of the city’s population and 45% of marijuana possession cases.

“While the county’s running the cost analysis, they should also do a cost analysis on how much tax revenue we’re losing by saddling people of color under the age of 30 with a drug conviction that lasts them their entire lives based on having a gummy or maybe a vape that has economically devastated them,” Whipple said. “That’s the real deal here. That’s what’s holding the economy down and individuals down. Government needs to get out of the way. Let people go meet their potential without saddling them with a legal stigma that makes it so they can’t work for our top employers.”

Frye pushed back on that idea to the County Commission. He suggested marijuana convictions no longer carry the stigma they once did when people apply for jobs, noting that the Wichita Police Department is hiring officers who have marijuana convictions on their criminal records.

“So I think it’s becoming more accepted,” Frye said. “But I think it has to be done with caution and proper procedures so that the unintended consequences don’t make it a higher burden not only for county government but also for those people that are being charged.”

Easter said his office also hires law enforcement officers who have previous marijuana convictions.

“And so this is not unusual for people with just simple possession charges,” Easter said. “It used to be a year that you couldn’t apply or be a cop. We’ve changed that now — it’s all depending on what the circumstance is.”