Wichita may decriminalize small-time marijuana possession under City Council proposal

The Wichita City Council is poised to repeal the city’s marijuana laws, making the state’s largest city the least restrictive on marijuana possession in Kansas.

On Tuesday, the City Council will vote on whether to decriminalize possession marijuana in the city limits. If that passes, marijuana cases could no longer be filed in municipal court.

The change would not affect state and federal prohibitions on marijuana. Wichita police could still arrest people for marijuana possession or use it as a reason to search their property.

But any criminal charges would have to be filed by Sedgwick County District Attorney Marc Bennett, who told The Eagle his office doesn’t have the capacity to take on the city’s minor marijuana cases, or Kansas Attorney General Derek Schmidt, who typically does not prosecute local drug cases.

Mayor Brandon Whipple said the proposal aims to cut down on arrests and prosecutions of marijuana users.

“No one deserves a criminal record that follows them for their entire lives because they decided to use marijuana or THC products that are legal in every state that surrounds us,” Whipple said.

According to the city, an average of 750 to 850 possession of marijuana cases are filed annually in Wichita Municipal Court. Whipple said those convictions make it harder for those people to find and keep jobs. Although the City Council can’t change state law, Whipple said he hopes the police department will focus on solving more serious crimes than marijuana possession.

“The Wichita Police Department told (the City Council) that they’re really not prioritizing single-use THC cases as a reason to bring people to court,” Whipple said. “But they’ve been bringing two or three people a day to court, so we really want the actual practice to match what the voters have asked for and what some us thought was going on already.”

The proposed Wichita ordinance would also decriminalize possession of fentanyl test strips, used to detect the presence of the powerful synthetic opiate causing an alarming number of fatal overdoses across the country.

To date, no criminal charges for unlawful possession of fentanyl testing strips have been filed in the city’s municipal court.

Legal gray area

Nationwide, marijuana laws are murky.

The federal government considers it an illegal, Schedule I drug — more tightly regulated than cocaine, methamphetamine and fentanyl.

But most states have legalized or decriminalized marijuana possession for medical or recreational use, including surrounding states Colorado, Nebraska, Missouri and Oklahoma.

Kansas is one of 11 states where marijuana is completely prohibited. So even if the proposed Wichita ordinance change passes, possession of marijuana and associated paraphernalia would remain illegal in Kansas.

It would be up to the district attorney or state attorney general to prosecute those cases.

Bennett, the Sedgwick County prosecutor, said it’s unlikely his office could handle the number of cases the city has been filing against people for small amounts of marijuana. It could also be expensive for his office to pursue those cases.

“My office does not have the capacity to simply absorb 750+ cases annually,” Bennett said in a written statement. “The county would have to also absorb the costs associated with paying for defense attorneys for indigent defendants as the county handles payment for misdemeanor appointments.”

But Bennett did not rule out filing charges.

“As far as what we will do if cases are presented, we will look at the facts, the context (criminal history, nature or reason for law enforcement contact, etc), and make a decision on a case by case basis,” he wrote.

Attorney General Derek Schmidt, the Republican candidate for governor, did not respond to a request for comment Monday afternoon. His office has moved to block previous efforts by Wichita to lessen penalties for marijuana possession.

In 2015, a ballot initiative aiming to lessen penalties for the possession of small amounts of marijuana was approved by 54% of Wichita voters. Schmidt got the initiative struck down by the Kansas Supreme Court on a technicality.

Democratic candidate for Attorney General Chris Mann, who is running against Republican Kris Kobach, indicated he is not in favor of the Wichita change.

“Any efforts around marijuana legalization or decriminalization need to occur at the state level in coordination with law enforcement,” Mann said in a written statement to The Eagle. “When we have cities creating a patchwork of different laws all over the state, that makes it harder for law enforcement to do their jobs.

“I dealt with that personally as a police officer and prosecutor,” he wrote. “I know legislators in Topeka worked over the summer to bring marijuana legislation to the floor in 2023. We should wait to see the results of that effort before making things complicated for our officers on the streets.”

Kobach did not respond to a request for comment.

As it stands, local law enforcement can use the smell of marijuana as the basis to stop, detain or search a person.

“Even though not charged in Municipal Court as a criminal offense, the possession of these illegal substances will still be discussed and made known to the court to establish probable cause for the officer to stop and/or search the vehicle,” a Wichita city staff analysis states.

Wichita Police Department spokesperson Juan Rebolledo said the department would not comment on the proposed ordinance before the council vote. The City Council and police department clashed over the issue during a workshop in July, when interim Chief Lem Moore, who is retiring this month, said officers don’t have discretion to enforce the state’s marijuana laws.

Esau Freeman, a Wichita service employees union leader and one of the organizers who spearheaded the 2015 ballot initiative, said taking steps to decriminalize marijuana will help Wichita’s efforts to attract and retain talent.

“It’s something that’s on its way to being a national trend, and I think the sooner that Wichita accepts it and quits putting their citizens in jeopardy for simple possession or use of marijuana, the more appetizing the city of Wichita will be,” Freeman said. “I think the City Council’s doing a great thing with it.

“They’re sending a message to citizens and young people that we’re not stuck back in the 1930s.”

Clarification: A previous version of this story said Wichita would no longer prosecute marijuana possession cases under 32 grams. The city clarified Tuesday that it would not be prosecuting any marijuana possession cases.