By Gretchen Schuldt

We're halfway through our examination of cannabis cases filed in circuit courts last year, and thus far it looks like law enforcement in the northeastern part of the state is more aggressive in pursuing criminal marijuana charges than is law enforcement in southern Wisconsin.

The map and chart below show one measure of prosecutorial interest in pursuing cannabis charges – the number of county residents per criminal case that includes one or more marijuana charge. It's not a perfect measure, but it does paint a general picture of where folks are more likely to face criminal prosecution for pot. 

The numbers are good evidence that cannabis laws are not consistently applied across the state. Some municipalities, such as Milwaukee, pursue most simple possession cases in municipal courts and not in state circuit courts. Other places just don't take cannabis enforcement as seriously as others do. 

Still, it seems problematic that people in Florence County, where there are just 139 residents for every cannabis case filed, are statistically so much more likely to face criminal charges than someone in Dane County, where there are 4,339 people for every cannabis case.

​The idea that everyone is equal before the law apparently does not apply across county lines.

There is more information and detail about what's going on in the 36 counties examined thus far on our 2019 Pot Page. We continue to add to it.

This project is a partnership between the Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter. 

By Gretchen Schuldt

​People in Dane and Milwaukee counties were far less likely to be charged with marijuana crimes last year than were people in other counties in the state, but those charged in those two places were more likely to be African-American and male than in other counties, according to a review of 2018 cannabis cases in Wisconsin.

The review, a joint effort of the Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter, thus far has covered 24 counties, or one-third of the 72 counties in the state. 

Some findings:

Milwaukee County had the largest gender gap among cannabis case defendants. A whopping 95% of the 288 people charged with marijuana crimes or misdemeanors were men, far more than in most counties reviewed thus far. Dane County, where 90% of 125 defendants were male, had the second-highest share of male defendants.

Green County, with just 27 criminal cannabis cases last year, came in third. Twenty-four of the defendants, or 89%, were men.

Milwaukee County was number one when it comes to the share of cannabis defendants charged who were African American – 85%. Dane County was second, with 68% Black defendants.

Dane County's defendants were more disproportionately African-American than were Milwaukee County's because Dane County's 5% Black population share is so much smaller than Milwaukee County's 27%.

​The share of cannabis defendants charged in Dane County who were Black was 63 percentage points higher than the Black share of the county population; in Milwaukee County, the difference was 58 percentage points. The third place finisher was Fond du Lac County, where the difference was 31 percentage points.

As these charts illustrate, there is not much that is consistent in cannabis enforcement in Wisconsin. Two people engaged in similar conduct in different counties may well be treated very differently by the criminal justice system.

Follow along as we document the wildly erratic enforcement of cannabis laws in Wisconsin.
Additional data for each county is posted on The 2019 Pot Page and we'll be updating and expanding our charts on this blog.​

By Gretchen Schuldt

​The Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter are teaming up to refresh WJI's Pot Page with court data from across the state.

WJI, in a previous version of the page, examined felony marijuana cases – possession of marijuana, second offense or greater – in Milwaukee County. That project pretty clearly illustrated that African-American men on the North Side of Milwaukee are disproportionately charged with that crime.

The new page already is uncovering some interesting information. In Milwaukee County, for example, there was one marijuana case filed last year for every 3,292 residents; in the much smaller Ashland County, at the top of the state, there was one marijuana case filed for every 371 residents. In other words, Ashland County law enforcement is much more aggressive in prosecuting marijuana crimes when population is factored in.

Surprisingly, there were just as many women charged – 15 – in Ashland County as there were in Milwaukee County. Those women accounted for 36 percent of the 42 Ashland County cases, but just five percent of the 288 Milwaukee County cases. 
​
Follow along as we look at data from all 72 counties.

​By Gretchen Schuldt

​The number of possession of marijuana cases filed in Milwaukee Municipal Court fell 17 percent from 2017 to 2018, court records show.

There were a total of 994 adult and juvenile possession of marijuana charges opened in 2017 and 824 in 2018, according to the figures. That is a year-to-year decline of 170 cases.

The caseload reflects police activity, but is not a total count of arrests, as some cases may get dismissed before they get to court. 

In November, 75 percent of City of Milwaukee voters supported legalization of recreational marijuana. Some 52 cases were filed that month. In December, however, 134 cases were filed, the most since November, 2017.

By Gretchen Schuldt

​District Attorney John Chisholm said this week that he favors marijuana legalization if there are adequate implementation and regulatory structures in place.

"Let's come up with the best legal framework for allowing people to possess marijuana much as they do alcohol and tobacco," he said during an interview. 

If he can find the funding, Chisholm said, he would like to hold a one-day symposium in Milwaukee to explore how other states handled legalization implementation, the challenges they faced, and what they learned from their experiences.

Thirty-three states and the District of Columbia have legalized cannabis to some extent. 

Wisconsin still is a full prohibition state. Second offense possession of marijuana of any amount still is a felony in the state.

Voters in 18 November referendums around the state indicated they favor cannabis legalization. Milwaukee County voters in every municipality favored legalization of recreational marijuana for adults. 

Chisholm says he favors full legalization over an incremental approach. The state should ensure, before legalization takes effect, that the infrastructure is in place to ensure successful implementation and that cannabis tax revenue is distributed as intended. 

Downsides to legalization, he said, could include impaired driving, and negative impacts on school performance and health, he said.

"We just have to be cognizant of that," he said.

In the meantime, he said, his office will continue to use alternatives to prosecution, including diversion efforts and defaulting to municipal tickets instead of criminal prosecutions, to reduce the number of marijuana cases flowing through the court system.

He said he would prosecute some cases, though, "until the law is changed." 

As a prosecutor, he said, he has significant discretion, but "it's got to be based on a rational basis." 

He can't decide simply to not enforce the law, he said.

"I'm not a super legislator," he said.

By Gretchen Schuldt

​​The question on the Nov. 6 Milwaukee County election ballot was this: "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"

The results:

By Gretchen Schuldt

Whoops! Updated Nov. 7 to correct Milwaukee County referendum language.

Voters supported marijuana legalization in all 18 referendums held around the state Tuesday, sending a strong message to police, prosecutors and policy makers that Wisconsin residents want to see change in cannabis laws.

Even in the City of Waukesha, where Republican Gov. Scott Walker grabbed 58 percent of the vote in his unsuccessful re-election bid, 77 percent of voters approved a medical marijuana referendum.

And in Eau Claire County, just 15 percent of voters said the existing criminal statutes should stay on the books, while 54 percent supported legalizing recreational use for adults.

The referendums are not binding. The Wisconsin Justice Initiative worked with partners around the state to have the measures placed on the ballot.

Other results from around the state, as reported by county websites, are below. Referendum wording is via Marijuana Moment.

Brown County: Should cannabis be legalized in Wisconsin for medicinal purposes, and regulated in the same manner as other prescription drugs?
Yes: 76 percent
No: 24 percent

Clark County: Should the State of Wisconsin legalize the use of marijuana for medical purposes and regulate its use in the same manner as other prescription drugs?
Yes: 67 percent 
No: 33 percent

Dane County: Should marijuana be legalized, taxed and regulated in the same manner as alcohol for adults 21 years of age or older?
Yes: 76 percent
No: 24 percent

Eau Claire County: Should cannabis (choose one):
(a) Be legal for adult, 21 years of age and older, recreational or medical use, taxed and regulated like alcohol, with the proceeds from the taxes used for education, healthcare, and infrastructure in Wisconsin?
Yes: 54 percent

(b) Be legal for medical purposes only and available only by prescription through a medical dispensary?
Yes: 31 percent

(c) Remain a criminally illegal drug as provided under current law?
Yes: 15 percent

Forest County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 79 percent
No: 21 percent

Kenosha County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 88 percent
No: 12 percent

La Crosse County: Should the State of Wisconsin legalize the use of marijuana by adults 21 years or older, to be taxed and regulated in the same manner that alcohol is regulated in the State of Wisconsin, with proceeds from taxes used for education, healthcare, and infrastructure?
Yes: 63 percent
No: 37 percent

Langlade County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 77 percent
No: 23 percent

Lincoln County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 81 percent
No:  19 percent

By Gretchen Schuldt

Representatives from the Wisconsin Justice Initiative and other organizations urged Milwaukee County voters Thursday to vote "yes" on the Nov. 6 referendum question asking whether recreational marijuana should be legalized and taxed.

"We're urging a 'yes' vote because it's time for Wisconsin to join the ever-growing list of states that have recognized that marijuana prohibition is an outdated and regressive policy, WJI President Craig Johnson said at a press conference. "We're urging a 'yes' vote because it's wrong to create criminals out of people using cannabis for pain relief or to help with other medical symptoms."

Marissa Ocampo, youth organizer for the ACLU of Wisconsin, said imposing hard punishments through the criminal justice system on marijuana users hasn't reduced usage. 

"Giving someone a criminal record for simple possession creates a lifetime of collateral damage," she said. "The punishment should fit the crime, and public opinion increasingly favors more sensible drug policy and a new approach to marijuana."

In 2013, she said, the ACLU released a report that showed that statewide, African-Americans were more than six times more likely than whites to be arrested for marijuana possession, while studies show that African-Americans and white use marijuana at the same rate.

The referendum question will ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"

County Supervisor John Weishan, who introduced the legislation authorizing the referendum, said arresting, prosecuting and incarcerating marijuana offenders was costly to taxpayers and the community.

"We should say, 'You know what?'" he said. "'It's time to end the prohibition on cannabis in the state of Wisconsin.'" 

State Rep. David Bowen (D-Milwaukee) said the referendum can spark a new discussion about marijuana legalization in the State Legislature. 

"It's been too taboo for too long," he said. 

Restoring Our Communities - Wisconsin, a task force of Milwaukee Inner-city Congregations Allied for Hope, also participated in the event. 

"Black people are more likely to be locked up" for cannabis offenses, ROC member Barbara Robinson said. Reforming the marijuana laws means "we can bring our prison rate down."

​WJI research shows that the vast majority of felony possession of marijuana second offense or greater cases are brought against African-American men arrested in the city of Milwaukee north of I-94.

"People used to describe marijuana as a gateway drug," WJI's Johnson said. "And unfortunately it is – because of the unequal way in which marijuana laws are enforced, for black and brown people it's a gateway into the criminal justice system, it's a gateway to jail, and it's a gateway to prison – and that's wrong."

He concluded: "We are asking the people of Milwaukee to speak up in strong voice and tell the legislators in Madison that it's time for Wisconsin to join the 21st century and end marijuana prohibition laws."

By Gretchen Schuldt

​WJI just charted its 100th Milwaukee County case of felony second offense possession of marijuana.

And yes, the defendant in the 100th case was African-American. Not much of a surprise there, since 87 percent of the defendants in these cases were African-American.

Another non-surprise: the defendant in the 100th case was arrested in the City of Milwaukee, north of I-94, where 80 of the arrests occurred. (We've found  just eight cases so far stemming from Milwaukee arrests south of I-94 and a total of 11 originating with arrests in the suburbs. One arrest took place on I-94.)

And, finally, yes, as in many, many other cases, the 100th arrest started as a traffic stop, this time for excessively tinted windows. Police said they smelled marijuana, and the rest is history recorded in court documents.

So is the racial / geographic concentration just a coincidence?

Absolutely not, judging from data dug up by the ACLU during litigation over the city's stop-and-frisk policy. The city and civil rights organization settled the federal class action lawsuit last month.

The ACLU found that between 2010 and 2017, Milwaukee police conducted more than 350,000 pedestrian and traffic stops for which they have no record of reasonable suspicion of criminal activity or a traffic or vehicle equipment violation, as required by the U.S. Constitution.


Former Police Chief Edward Flynn contributed to that number through his policy of encouraging traffic stops in certain neighborhoods as a crime-fighting measure. 

The city has agreed to rescind the policy.

Flynn said in a 2009 memo said that "the intelligent, assertive use of police authority to stop people and vehicles can be an invaluable tool that reduces crime and enhances safety in these same neighborhoods. ..."

"Traffic enforcement will continue to be a key part of our policing strategy going forward," he said. 
​
"It must be recognized that many of the people we stop will be released without further action. In this context, how our authority is employed is as important as a results of its use," he said.

By Gretchen Schuldt

The Dane County Board will consider whether to hold a Nov. 6 advisory referendum on legalizing marijuana.

The resolution already has support from a majority of the County Board. Twenty of the county's 37 supervisors are sponsors. 

The resolution that would authorize the referendum is very similar to the one approved by the Milwaukee County Board last month.