To “receive the care they need without living in fear of being punished with a misdemeanour,” as Kentucky Governor Andy Beshear put it when he announced his executive order providing preemptive pardons for possession of marijuana for patients suffering from specified medical ailments.
Perhaps things are different in Louisville, the state capital.
A memorandum obtained through Kentucky’s open records law indicates that officers from the Louisville Metro Police Department were instructed to prosecute people with possession of marijuana regardless of whether they had obtained it within the restrictions set out by the governor’s decree.
On January 24, more than three weeks after the executive order went into effect, Deputy Chief of Police Paul Humphrey released a memorandum stating that “The Governor’s Order does not restrict enforcement of Kentucky Revised Law (KRS) 218A.1422, Possession of Marijuana (POM).”
Humphrey continued by saying that the executive order “does allow for a pardon after conviction” if the person in question has a receipt, the amount of marijuana in question is less than eight ounces, and the person has “‘written certification’ from a medical provider that they have one of 21 qualifying conditions.
This means that you can legally charge someone with possession of marijuana (POM), as Humphrey stated.
At least in Louisville, the memorandum confirmed what cannabis reform advocates have feared since the executive order took effect on January 1: that it will likely be up to individual law enforcement officers in the Commonwealth to decide whether to charge someone who has obtained marijuana in accordance with the executive order.
You know what’s going to happen. “Cannabis remains illegal; that fact has never changed,” said Matthew Bratcher, director of the Kentucky branch of the National Organization to Change Marijuana Laws. A person who tries to take advantage of the presidential order should exercise caution, as they may face conviction if they are apprehended.
The Beshear administration issued “palm cards” to help police determine if a citizen’s possession of cannabis complied with the executive order after the order was issued. Possession of up to eight ounces of marijuana is still considered a misdemeanour and is punished by up to 45 days in jail in the state of Kentucky.
Though Humphrey, the LMPD’s deputy chief, did inform officers that they could charge people who have complied with the executive order, he also noted that, due to a 2019 Metro Council ordinance, possession of marijuana is the “lowest enforcement priority for LMPD” and that citations for only possession of marijuana are “highly discouraged.”
“Nothing in the Governor’s order, the [Metro Council legislation], or [LMPD policy] stops an officer from using the discovery of marijuana during an investigation as probable grounds for a search,” he continued.
This might mean that if you are stopped over by LMPD and you admit to having marijuana purchased in accordance with the governor’s executive order in your possession, the officer may order you out of the vehicle and conduct a full search of your belongings and person.
Since the 2019 Metro Council ordinance and the 2019 announcement by Jefferson County Attorney Mike O’Connell that his office would no longer prosecute possession of marijuana charges in cases involving less than an ounce, possession being the only or most serious offence, and the person being over the age of 21, charges for small amounts of marijuana have become increasingly uncommon in Louisville.
In spite of this, accusations continue to occur occasionally. The possession charge may remain or be aggravated if there is another offence that can be levelled against the individual.
Even if marijuana has been de facto legalised in Jefferson County, a person can still be charged with a felony for possessing even a little amount of the drug if they are also in possession of a firearm.
On Friday, February 17, in response to a request for comment from LEO Weekly, a representative for the LMPD indicated the department would “let the memorandum speak for itself.” The representative said LEO they will find out if the LMPD had given out “palm cards” to officers, but had not done so as of press time.
