LOUISVILLE, Ky. (WDRB) -- When former University of Louisville basketball player Chane Behanan was caught by police with a marijuana cigarette in April, he was given a citation and released, instead of being arrested.

The same thing happened when Jason Hatcher, a member of the University of Kentucky's football team, was found a month later with a small amount of marijuana in his pocket on UofL's campus.

Neither player was taken to jail, prompting some speculation that they received special treatment. The reality, however, is that they both likely benefited from a 2011 change in Kentucky law that orders police officers to issue citations for many misdemeanors, instead of making arrests.

“It's like a traffic ticket now,” defense attorney Keith Kamenish said of marijuana possession. “It's gotten a lot easier” with many defendants even forgoing hiring an attorney and handling the case themselves.

Metro Corrections has seen a sharp drop in bookings for misdemeanor drug arrests including possession of marijuana -- from more than 3,100 in the 2009-2010 fiscal year to less than 2,000 in the 2012-2013 fiscal year, a 38 percent decrease, according to jail records. 

Behanan and Hatcher went to court, attended treatment classes and had their cases expunged, or erased from their records. No evidence now exists in the public record that either player was caught with marijuana.  

Under a Kentucky law that took effect in July 2011, police began issuing citations rather than making arrests for dozens of misdemeanors, including possession of marijuana of 8 ounces or less, as long as the officer believed the suspect was no danger to themselves or others and would appear in court to answer the charge. 

Jail administrators in Kentucky urged passage of the law to cut down on overcrowding, and other advocates said it's a waste of tax dollars to put misdemeanor offenders in jail.

So far, the law has had an effect, according to statistics from the state, police and Metro Corrections.

Louisville Metro Police arrested 15,818 people on misdemeanor charges in 2011. That number fell to 13,192 by the end of 2013, a nearly 17 percent decrease, according to data from LMPD. 

For years, Metro Corrections has had overcrowding issues, at times having to open a 60-year-old jail above the Louisville Metro Police Department headquarters when the jail population spikes. In some cases, inmates have been forced to sleep on mattresses on the floor.

Metro Corrections Director Mark Bolton said there is “no question” the 2011 state law has been one of several efforts that has had an impact on jail population, noting that it has fallen from more than 2,000 inmates in recent years to about 1,850 last week. 

“There's been a pretty good effort,” Bolton said of police limiting misdemeanor arrests and instead issuing citations. “I think it's safe to say we have seen the needle move in that direction and it's been somewhat significant.”

It costs Louisville taxpayers $68 a day to house an inmate. 

Now, many people charged with marijuana possession and other misdemeanors are getting a court date and handling the citations themselves.

“The lawyers will tell you it's cutting into their business in a major way,” said Jefferson District Court Judge Sean Delahanty. “We have them coming into court on our citations docket in the afternoon, and we resolve them pretty quickly.”

Instead of multiple hearings involving lawyers and possibly the arresting officers, the cases, especially those involving small amounts of marijuana, often are handled with just one appearance. The person cited pays a fine or agrees to take treatment classes, among other possible resolutions.

Chief District Court Judge Ann Bailey Smith said she has noticed, however, that some people who were cited have failed to show up for court, causing an arrest warrant to be issued. Perhaps because it is only a citation, people forget they have a court date, she said. 

There has been discussion, Smith said, of starting a program where those cited are called and reminded that they have a pending court date.

Less jail time
for marijuana convictions

Kentucky also reduced the penalty for personal possession of marijuana in 2011 –– to a class B misdemeanor carrying a maximum penalty of 45 days in jail. It had been a class A misdemeanor carrying up to a year in jail. 

According to statistics provided by the Administrative Office of the Courts, only 419 of Jefferson County's more than 5,300 possession of marijuana cases ended in a sentence of jail time, the lowest in more than a decade. 

The number of possession of marijuana cases in Jefferson County has fallen from 7,687 in 2010 to 5,382 last year, a drop of more than 30 percent, according to the AOC.

Defense attorney Tom Coffey said he talked to a client recently who was cited by an officer who reassured him that the small amount of marijuana he had was not a big deal.

“My client looked nervous and the officer said, ‘It's just a marijuana charge. You have nothing to worry about,'” Coffey recalled. “It's like a traffic offense now.”

And Coffey said many in the court system - judges, prosecutors and attorneys - agree the cases should be handled simply with treatment instead of jail.

In lieu of fines or jail time, many defendants attend marijuana education programs run by the state that, once completed, allow the case to be dismissed and then expunged.  

Often court costs are waived as well. 

Kamenish, a local defense attorney, however said he is not a fan of how marijuana cases are being handled, saying Kentucky is basically decriminalizing small amounts of marijuana. 

“I think it encourages marijuana use,” he said, adding that he believes it is a “gateway” for more dangerous drugs. “It looks like they are moving towards legalizing and taxing it.”

Ann Schiavone Dyke, an assistant Jefferson County Attorney, said besides fewer arrests and lessened sentences, the punishment for small amounts marijuana possession hasn't changed much, pointing out that defendants have long been given the opportunity to take marijuana education classes and have the charges expunged. 

But she acknowledged that attitudes towards marijuana have clearly changed, with many states and cities moving away from arrests in favor of fines. Two states – Colorado and Washington – have legalized recreational marijuana. 

“I think a lot of times it's difficult to convince a jury to convict for possession of marijuana,” Shiavone Dyke said. She recalled a case in the last few years in which a defendant was on trial for possession of marijuana, and testimony came out that he had four previous convictions for the same offense.

The jury still acquitted him, she said.

“One juror said afterwards they didn't think marijuana should be illegal,” Shiavone Dyke. “It doesn't have a lot of jury appeal these days.”

She added that she is surprised more people don't take the step of having the marijuana charge expunged after it is dismissed, so it doesn't show up on their criminal history checked for job applications.

The number of expunged possession of marijuana cases has actually fallen from more than 500 in 2010 to 269 last year, according to the AOC.

2011 causes police other problems

A recent Washington Post story, using data from FBI statistics and national surveys, showed that in 2012, 3.8 percent of all arrests in Kentucky were for marijuana possession, which ranks among the ten lowest in the nation. 

The Post also noted that 5.63 percent of Kentuckians smoked marijuana monthly, according to statistics from a National Survey on Drug Use and Health, ranking the state 38th in the country in usage. (Rhode Island topped the nation in marijuana usage, according to the study.)

A 2013 Gallup poll showed for the first time, a majority of Americans (58%) say the drug should be legalized.

Still, Louisville Metro Police Chief Steve Conrad said issuing a citation to someone who has 8 ounces of marijuana “is a little odd,” as that is not really a small amount.

More worrisome for police though, Conrad said, are other misdemeanors police are no longer allowed to make arrests for, such as disorderly conduct and minor theft.

If, for example, police catch a person stealing something out of someone's car, like a radio, it could be a misdemeanor in which the officer will issue a citation and “let you go down the road.”

“From a customer service point of view, we have a victim there who questions our officers on who has the most rights in that situation.” Conrad said. 

And police called to deal with disorderly conduct in neighborhoods often have to make repeated trips because they are only allowed to cite the person instead of making an arrest. 

“It creates a frustration, not only for our officers but for citizens as well,” he said. “There is that delay that creates that perception from the community's point of view that we are not able to do much to help solve problems.”

Disorderly conduct arrests fell 27 percent from 2011 to 2013, according to the most recent Metro Corrections data available.  Arrests for theft have actually climbed, but the jail statistics did not break down the data by misdemeanor and felony charges. 

But Conrad said he also understands the need to avoid using valuable jail bed space for non-violent offenders and added that treatment is typically a better solution for “simple” possession of marijuana cases.

“I would rather make sure there is room at corrections for people who need to be there,” he said. 

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