By Gretchen Schuldt

​African Americans were defendants in 21% of criminal marijuana cases filed in Wisconsin circuit courts last year while accounting for just 7% of the state's population, a Wisconsin Justice Initiative / American Constitution Society analysis shows.

The analysis included cannabis cases filed in each of the state's 72 counties.

The figures demonstrate "that marijuana prosecutions impact more heavily on the African American population," even though African Americans and Whites use marijuana at about the same rates, WJI President Craig Johnson said. 

The disparity "clearly points to another reason for legalizing it," he said.

There were 8,697 Circuit Court cases that included misdemeanor or felony cannabis charges, the analysis shows, and African Americans were defendants in 1,846 of those cases.

Whites, who account for 87% of the state's population, made up just 66% of defendants in marijuana cases, figures show. Whites were defendants in 5,776 cases.

American Indians / Alaska Natives also were over-represented among those facing cannabis charges. Members of that ethnic group account for about 1% of the state's population, but 5% of cannabis defendants. 

Hispanics and Asians were under-represented in marijuana cases. Hispanics make up 7 percent of the state's population and were defendants in 3% of cannabis cases, and Asians accounted for 3% of the population and 1% of cannabis defendants.

The analysis also shows that the filing rate of criminal cases varies widely across the state. In Waushara County, for example, one cannabis case was filed for every 120 county residents, the highest rate in the state; in Dane County, one case was filed for every 4,339 residents, the lowest filing rate statewide. It was followed by Milwaukee County, where one cannabis case was filed for every 3,292 residents.

The Black/White racial disparities in those latter two counties, however, were bigger than in any of the other 70 counties in the state. 

More information available on our 2019 Pot Page.

In Dane County, African Americans account for just 5% of the population but were 68% (85 of 125) of cannabis defendants, for a disparity of 63 percentage points, the largest in the state.

In Milwaukee County, 27% of residents are African-American, but Blacks accounted for 85% – (244 out of 288) – of cannabis case defendants, a gap of 58 percentage points, the state's second highest.

Those figures, Johnson said, shows that cannabis "is kind of the drug of the privileged."

There are some areas, he said, "where marijuana has sort of de facto legalization." Those areas are generally whiter, wealthier and more liberal, he said.

"My gut feeling is your over-policed communities end up with more charges," he said. "So we have unequal protection under the law."

The analysis also showed that 75% of the defendants in cannabis cases statewide were men. Milwaukee had the largest share of male defendants at 95%, followed by Dane and Jefferson counties. Some 90% of cannabis defendants in each of those counties were men.

By Gretchen Schuldt

​Milwaukee police officials during budget hearings attributed the decline in city traffic citations this year to the city's settlement in the ACLU's stop-and-frisk lawsuit.

Dangerous driving has become a major issue in Milwaukee, outraging many residents.

While attributing the decline in citations to the ACLU, however, police failed to note that the number of tickets issued in the city has been declining for years except for significant jumps in 2017 and 2018 – the year the ACLU's lawsuit was filed and the year it was settled. 

"It's part of the ACLU lawsuit," Police Chief Alfonso Morales told the Common Council's Finance and Personnel Committee, referring to the decline in speeding tickets.

"We’re not doing the flooded  over-policing area where we’re measured on our activity on traffic and subject stops that resulted in citations," he said.

The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought a class action lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased. The city denied wrongdoing, but agreed to several reforms to settle the suit.

Morales, at the committee meeting, acknowledged that police previously stopped and cited people for reasons other than the violations they committed.

Police now are "actually pulling the person over that actually is speeding or doing something reckless.... So those are the people that are getting the tickets – We’re not just – again, that whole Center Street corridor, where we’re stopping a minivan because, a Dodge Carava(n) – a mini-van because it’s high steal, and we’re stopping every Dodge Caravan and giving them a ticket....Those are all things that came across in the agreement with the ACLU lawsuit." 

Molly Collins, advocacy director of the ACLU of Wisconsin, said Wednesday that "there's nothing in the settlement that stops police from enforcing the law."

The lawsuit, she said, was "not about them enforcing the law, but about them breaking the law."

By Gretchen Schuldt

State Sen. Kathleen Bernier (R-Chippewa Falls) is a sponsor of the ill-conceived Marsy's Law amendment to the State Constitution that would give victims the right to attend every court proceeding in their case. 

Allowing anyone interested to attend court proceedings is a good thing. Elevating such access to the level of a constitutional right can create logistical nightmares for court officials and create long delays in cases. (Visit our Marsy's Flaws page to learn more.)


​WJI's questions for Bernier are about former Eau Claire County Treasurer Larry Lokken and his assistant, Kay Onarheim, who embezzled more than $600,000 from the county. The theft enraged county residents. Bernier represents part of the county.

Marsy's Law defines "victim" generally as "a person against whom an act is committed that would constitute a crime if committed by a competent adult." 

Stealing public funds is clearly stealing from the folks who pay into the treasury. 

WJI wrote to Bernier to ask a few questions about how, under Marsy's Law, Eau Claire County Circuit Court officials would manage likely demand from people to attend Lokken/Onarheimcourt proceedings. 

A few details about Eau Claire County: its population is 104,534, according to the U.S. Census Bureau, and most of those people pay some sort of tax or fee to the county, which also gets state and federal money.

Our questions for Bernier:

If Marsy’s Law was in effect at the time the two were arrested, would each and every victim have a right to attend all court proceedings? How do you propose requests be coordinated?  
 
Let’s say only 100 county residents requested to attend the court proceedings. Who would be responsible for finding dates when 100 people could be in court at the same time? Would the cost of that coordination fall to the District Attorney’s Office and the state? Or would the county be asked to pick up the tab?
 
Would the right of victims under Marsy’s Law to attend proceedings override the defendants’ right to speedy trials? 

WJI will report on any response Bernier provides. We're still waiting on State Attorney General Josh Kaul and State Sen. Van H. Wanggaard (R-Racine). 

By Gretchen Schuldt

​The results of 55 of 72 (76%) of Wisconsin counties' 2018 marijuana cases are in!

Some results of the analysis thus far:

• More men than women faced cannabis charges in every county reviewed thus far except Forest County, where the male-to-female ratio is uncertain because of the large number of defendants of unknown genders. The average percentage of female defendants in all counties reviewed was 25%, with the largest share in Forest County (47%) and the lowest in Milwaukee County (5%).
• Brown, Racine, Marathon, Eau Claire, and Columbia counties all issued more criminal cannabis cases  than did Milwaukee County, by far the largest county in the state.
• The 11 counties least likely to issue criminal marijuana charges were Dane, Milwaukee, Lafayette, Green, Kewaunee, Grant, Rock, Pierce, Marinette, Jefferson, Outagamie, and Bayfield. Each of those counties issued fewer than one marijuana case for every 1,000 residents.
• The seven counties most likely to issue cannabis charges are Florence, Burnett, Forest, Monroe, Langlade, Columbia, and Green Lake. Each of those counties issued more than one case for every 200 residents.
  
  

See more by checking out our 2019 Pot Page. 

And see earlier posts here and here.

The Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter launched this project to examine 2018 criminal cannabis cases filed in all 72 Wisconsin counties in an effort to better understand where, how, and against whom cannabis crimes are prosecuted.

For a larger version of the graphic, click on the picture. For a PDF version, click here. The Senate sponsors are here.

By Gretchen Schuldt

​These Wisconsin state representatives – 37 Republicans and four Democrats – teamed up to sponsor an amendment to the State Constitution that would seriously damage the concept of "presumed innocent."

The amendment will be before voters on April 7 and, if approved, will become part of the State Constitution. The referendum question the State Legislature OK'd and voters will get on their ballots actually says nothing about the contents of the proposed amendment or what its impacts would be.

You can learn about those things, though, by checking out WJI's "Marsy's Flaws" page. There are also links to stories about the problems arising in states that approved their own Marsy's Laws and must reckon with the consequences. 

Marsy's Law is the brain child of billionaire felon Henry Nicholas III, who earlier this month bought his way out of any real consequences for allegedly trafficking heroin, cocaine, meth and ecstasy. 

By Gretchen Schuldt

​Jacob Maclin lost his effort to show there is racial bias in federal prosecutors' decisions about who gets charged with certain drug and gun cases in federal court, where penalties are heavier than in state court.

The numbers are clear – African Americans in Milwaukee face the harsher federal criminal penalty at a greater rate than do Whites in Milwaukee and elsewhere in the Eastern District of Wisconsin.

Federal prosecutors work with gun prosecutors in the Milwaukee County District Attorney's Office to decide which cases should go federal, according to the U.S. Attorney's Office. The feds may never even find out about cases in other counties that could be prosecuted federally.

The Milwaukee Fire and Police Commission will not investigate the Wisconsin Justice Initiative's complaint about derogatory comments a police officer made because the complaint came from a third party and not someone directly affected.

The officer's comments, made during a Federal Court deposition, targeted North Side and central city drivers.  A transcript of the officer's deposition is on file in Federal Court and is a public record.

The commission's decision "is ridiculous and surprising," WJI Executive Director Gretchen Schuldt said. 

WJI filed the complaint in August, after reading the transcript of a deposition of Milwaukee Police Officer – now Detective – Froilan Santiago. The transcript is part of the public Federal Court record.

Santiago testified he would invite traffic stop subjects into his squad car if the stop was in a Downtown police district, but not if it was in a central city or North Side district.

"District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5," he said.

The populations of Police Districts 5 and 7 include the largest percentages of African Americans among all the districts in the city, according to a U.S. Justice Department draft report on the Police Department.

In District 1 Downtown, "it's more of people as far as the -- more able to communicate and more different lifestyle," he said.

He added: "District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time."

Fire and Police Commission guidelines generally require a complainant to have a "reasonably direct relationship" to an incident for a complaint to be considered.

"Complainants are considered to have a direct relationship if they were directly affected by the alleged misconduct, witnessed the alleged misconduct, or have special, professional, or organizational knowledge about the alleged misconduct, e.g., a lawyer, a judge, or an FPC employee," according to the guidelines.

The guidelines also state that "The purpose for requiring a reasonably direct relationship is to help the FPC respond effectively to complaints from persons who have the greatest interest in the outcome and who have the most reliable information about an incident. It is not intended to screen out otherwise reliable complaints that deserve investigation."

A commission employee informed WJI last week that its complaint did not meet the guidelines' criteria. 

"This gives a huge get-out-of-jail-free card for officer misconduct," Schuldt said. "It kills the idea of the third-party whistleblower complaints when it comes to the Milwaukee Fire and Police Commission. It's a bad day for Milwaukee."

By Gretchen Schuldt

​A Milwaukee County circuit judge who repeatedly cited erroneous information about the cause of an infant's death when she sentenced the girl's father for his role in that death erred when she denied him a new sentencing hearing after the error was discovered, a State Court of Appeals panel ruled this week.

The District 1 Court of Appeals panel ordered a new sentencing hearing for Vaylan Morris, whom Circuit Judge Janet Protasiewicz had sentenced to four years in prison and five years extended supervision after he pleaded guilty to second-degree recklessly endangering safety.

During the sentencing hearing, Assistant District Attorney Matthew James Torbenson told  Protasiewicz that synthetic marijuana might be to blame for the girl's death, but Dr. Brian Linert of the Medical Examiner’s Office actually concluded that it was not the cause.

While there was synthetic marijuana in the girl's stomach contents, the drug had not circulated through her blood or nervous system and did not kill her, he said.

When the state admitted the error during a postconviction hearing, Protasiewicz found that Torbenson merely "misquoted" Linert's findings. 

The error did not necessarily mean the prosecutor's statement was wrong, she said, because "different medical examiners can disagree about the cause of death." 

No alternative medical examiner findings were actually offered.