Memorandum
City of Lawrence
Legal Services
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TO: |
David L. Corliss, Assistant City Manager & Director of Legal Services
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
February 16, 2006
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RE: |
Proposed Marijuana Ordinance |
INTRODUCTION
This document accompanies the most recently proposed versions of Ordinance 7938. The three primary subjects of discussion regarding the ordinance the time this issue was discussed were the imposition of a base minimum fine, the factors that would allow the judge to impose a fine less than the base minimum fine, and what sort of drug abuse evaluation, education or treatment someone convicted of a violation of this ordinance should be ordered to receive, if any. Two versions of the ordinance have been prepared for consideration. The two versions differ only in the elections made regarding these three issues. For ease of discussion, I shall refer to these ordinances as versions 3.0 and 3.1. For a discussion of other issues raised by the ordinance, please refer to the memorandum included with the original version of the ordinance.
MINIMUM PENALTY
Version 3.0 of the ordinance includes a $300 minimum penalty. Version 3.1 of the ordinance establishes a $100 minimum fine.
SUSPENSION OF MINIMUM PENALTY
Both ordinances contain identical language allowing the suspension of all or part of the established minimum fine if the court finds substantial and compelling reasons for that suspension. The substantial and compelling reason standard was chosen because it is identical to the standard used to justify sentencing departure under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et. seq., which applies to felony convictions in the district courts. The term compelling when used in this context means that a court is forced by the facts of the case to leave the status quo or go beyond the ordinary. Although the court may consider any relevant factors in deciding whether a portion of the fine should be suspended, the court is directed to look at certain factors. These include:
1. The financial status of the defendant.
2. The amount of controlled substance or contraband possessed.
3. The lack of criminal history of the defendant.
4. Any drug treatment or educational program voluntarily completed by the defendant before sentencing but subsequent to being charged under this article.
5. The defendant’s level of cooperation with law enforcement including the truthful identification of the source of the controlled substance or contraband possessed by the defendant.
DRUG ABUSE EVALUATION/EDUCATION/TREATMENT
The former versions of the ordinance required an individual convicted or diverted of a charge under the ordinance to attend a level I Alcohol and Drug Safety Action Program or other drug treatment or education as assigned by the court. The current versions of the ordinance dispense with this requirement. Instead, for possession of marijuana offenders they substitute an evaluation and treatment program substantially equivalent to the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration’s Brief Counseling for Marijuana Dependence. This is a treatment model that studies demonstrate is effective in treating marijuana specific dependence, and appears more appropriate than the ADSAP class for marijuana offenders.
Version 3.0 of the ordinance gives the court discretion to order the evaluation in appropriate circumstances after a possession of marijuana conviction. Version 3.1 of the ordinance, on the other hand, requires that the court order that the evaluation be completed by all possession of marijuana offenders. From the standpoint of required evaluations or treatment, under either version an individual who enters diversion on a violation is handled the same as if he or she was convicted. Neither version mandates an evaluation for drug paraphernalia offenses, but each authorizes the court to order evaluation or treatment for these offenses as well if it finds such a course of action to be appropriate.
Finally, as previously noted, an individual may potentially receive a reduced minimum fine under either version by voluntarily pursuing evaluation and drug abuse education or treatment prior to sentencing. This might serve as an incentive for an individual to obtain help before being ordered to by the court.
CONCLUSION
Please let me know if more clarification of these issues is needed, or if additional amendment of the ordinances is desired. For the purposes of reference, a table comparing the differences between the two ordinance versions is included as an appendix to this memorandum.
APPENDIX A
Comparison Table
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FEATURE |
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Minimum Fine |
$300 |
$100 |
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Includes Factors Allowing Suspension of Fine |
Yes |
Yes |
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Incorporates Marijuana Specific Evaluation & Treatment Program for Possession of Marijuana |
Yes |
Yes |
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Evaluation is Mandatory for Possession of Marijuana Offenders * |
No |
Yes |
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Evaluation is Mandatory for Possession of Drug Paraphernalia |
No |
No |
* Please note that under either version when treatment is not mandatory the court may discretionarily order drug abuse evaluation, treatment or education if appropriate.