Jefferson County Attorney Mike O’Connell announced a new policy objective Wednesday to generally not prosecute possession of marijuana (“POM”) cases involving one ounce of marijuana or less when the possession charge is the only charge or the most serious charge against the individual.
“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” O’Connell said, quoting the commentary on Rule 3.8 from The American Bar Association’s Model Rules of Professional Conduct and, its counterpart, the Kentucky Bar Association’s Rules of Professional Conduct. “As your County Attorney, I take that admonition seriously and that is why I must now act in regard to possession of marijuana cases.”
O’Connell cited the need for fair and equal enforcement of the laws and finding the best use of his office’s limited resources in exercising his discretion as a prosecutor.
“We will now devote even more time and attention to the serious, and potentially deadly, crimes involving guns, domestic violence and DUI,” O’Connell said.
A 2013 study found that black and white Americans use marijuana at the same rates, but black people are nearly four times more likely to be arrested for POM than whites. Earlier this year, The Courier Journal analyzed Louisville Metro Police Department data from 2010 to 2017 and determined that similar or worse disparities occurred locally when marijuana was the most serious charge cited.
“Its origin is likely not intentional or malicious, but that does not change the end result,” O’Connell said. “For me to truly be a minister of justice, I cannot sit idly by when communities of color are treated differently.”
O’Connell also highlighted KRS 218A.276, a state statute last amended in 2012, that allows an individual to have POM charges completely voided from their record—at potential no cost to the defendant—after 60 days.
“No one should see their future diminished over a charge like this, especially when there are available legal tools to wipe this from a person’s criminal history,” O’Connell said.
O’Connell researched different approaches that communities across the nation have taken with POM cases and developed his plan in recent months. In addition to charges involving possession of marijuana (KRS 218A.1422), the Jefferson County Attorney’s Office will also no longer prosecute illegal possession of drug paraphernalia (KRS 218A.500) in the following limited circumstance: when the item possessed is clearly only used for the inhalation/ingestion of marijuana.
The new objective does not apply to persons under the age of 21, and does not include cases involving any indicators of trafficking in marijuana; cultivating marijuana; driving while under the influence of marijuana; public display, use, or consumption of marijuana; or public intoxication as a result of marijuana.
Joining O’Connell for the announcement were leaders from the Kentucky’s social and racial justice community, including Raoul Cunningham of the NAACP, Sadiqa Reynolds of the Louisville Urban League, Michael Aldridge of the ACLU of Kentucky and Reverend Charles Elliott Jr. of King Solomon Missionary Baptist Church.
“These disparities and effects are not the problem of any one part of government, any one profession or any one people,” O’Connell said. “This is a problem that belongs to us all. In my role as Jefferson County Attorney, I can do more to develop reforms that avoid needlessly bringing people into the justice system. I choose to act.”