By Gretchen Schuldt

​Penalties for second-offense marijuana possession, already a felony, would increase substantially if butane extraction was used in the production process, under a bill making its way through the Legislature.

Industry officials say that occasional users may have no clue how their product was processed, although frequent imbibers may be able to tell the difference by the taste.

The maximum penalty for second-offense (or greater) possession now is 3½ years in prison and a $10,000 fine. Under the bill, the penalties for second-offense (or greater) marijuana would increase depending on the amount of butane-extracted cannabis involved. The amounts and maximum penalties would be:

• Three grams or less, a maximum of six years in prison and a $10,000 fine;
• More than three and up to 10 grams, 10 years in prison and a $25,000 fine;
• More than 10 and up to 50 grams, 12½ years in prison and a $25,000 fine; and
• More than 50 grams, 15 years in prison and a $50,000 fine.

The bill also would significantly increase the penalty for manufacturing, delivering, or selling any amount of butane-extracted cannabis. Currently, marijuana manufacturing and dealing carries different sentences depending on the amount involved. Under the bill, those crimes, regardless of amount, would be punishable by up to 15 years in prison and a $50,000 fine. That means a person could go potentially to prison for a very long stretch for sharing a gummy bear with a friend.

Butane extraction is a common method of concentrating cannabis resin. Butane extraction can produce a THC concentration of up to 90%. The concentrate is used in a variety of products, including edibles and vaping juices. 

Commercial entities generally use a closed system of butane extraction, which is not considered an explosion hazard. Closed systems keep the butane from escaping into the atmosphere.

Some processors, including those running clandestine labs, use an "open blasting" system that allows the butane to escape into the atmosphere, creating a danger of explosions.

The pending bill does not differentiate between open and closed production methods used or whether any hazards are actually present.

"This is a very misguided effort," said Bryce Brisbin, director of technical sales at Luna Technologies, a cannabis extraction company. Closed-system butane cannabis extraction is safe and provides a high-quality product, he said.

"Open blasting should be banned, totally illegal," he said. "It's incredibly stupid." 

State Rep. Jesse James (R-Altoona), a sponsor of the legislation in the Assembly, said in prepared testimony last week that "The criminal elements and punishments of possessing, manufacturing, and delivery of BHO (butane honey oil) is the same as marijuana. I understand marijuana is needed to make BHO, but the process is making a totally different product, with a higher potency, which sells at a higher rate, putting the lives of those who manufacture it and others at risk."

He acknowledged that the closed-loop system was generally more "safer, controlled, and effective" than the open blasting system.

"The societal harms stemming from more prevalent and more potent cannabis is well-established in research exploring the effects on public safety and violent crime, traffic safety and the workforce," said State Sen. Duey Stroebel (R-Saukville), another sponsor. "The narrative surrounding the alleged medical benefits of cannabis tends to readily dismiss the aforementioned harms." 

There were 45,486 state court criminal convictions for marijuana possession from through 2010 through 2019.

​Check out the county-by-county breakdown, along with trends, here.

The data is from Wisconsin Circuit Court Access system via the Milwaukee County District Attorney's Office. Catch our earlier post here.

The policy does not mean that possession cases are not prosecuted at all or that the arrests just disappear.

"I suspect a lot of them are sent to municipal court," Chisholm said. 

Municipalities in the state have the option of prosecuting marijuana possession cases in municipal courts, where offenses are punishable by forfeitures are considered civil, not criminal matters. 

Counties other than Milwaukee County account for much of the racial disparities in convictions, according to the report.

"In 2019, Milwaukee County had 69% of the state's Black population, but only 8% of its marijuana possession convictions," the report said. "Ninety-two percent of Black marijuana possession convictions occur outside Milwaukee County, despite the rest of Wisconsin representing only  31% of the Black population."

Statewide, Black people had 14 convictions per 10,000, while the White conviction rate was 3.27 per 10,000. Black people were 4.3 times more likely than White people to be convicted, according to the report. 

In Milwaukee County, both races were less likely to be convicted than elsewhere, but the disparity was larger. The Milwaukee County conviction rate in 2019 was .11 per 10,000 residents for White people and 1.7 per 10,000 for Black people, about 15.5 times higher than for Whites.

In 2010 Black people statewide were 9.5 times more likely to be convicted in marijuana possession cases. Black people then had 39.23 convictions per 10,000, compared to White people with 4.1 convictions per 10,000.

The study did not fully examine other racial groups due to a lack of reliable data. It did say, though, that convictions in marijuana possession-only cases for American Indians or Alaskan Natives hit a 10-year high in 2019. ​

By Gretchen Schuldt
March 26 update – The County Board approved the measure to reduce cannabis fines. The Milwaukee Journal Sentinel has a story here.
​
The Milwaukee County penalty for marijuana possession would drop from up to $500 to $1, under a proposal introduced by a group of county supervisors.

"In achieving racial equity, disparities in the criminal justice system, including marijuana and paraphernalia possession laws, must be eradicated," the resolution said.

County Supervisor Joseph Czarnezki, who also is a WJI Board member, said Thursday that marijuana possession prosecutions disproportionately affect low-income and minority communities.

The state should fully legalize cannabis, he said.

"This is a step in that direction," he said.

Other sponsors include Supervisors Sylvia Ortiz-Velez, Ryan Clancy, Steven Shea, Sequanna Taylor, Willie Johnson, Jr., Liz Sumner and Marcelia Nicholson.

The existing county ordinance calls for forfeitures of $250 to $500 and the county usually levies a $275 penalty, according to the proposal. When additional fees are added in, however, the total jumps to about $484.

A $1 penalty would really cost $142.26 once fees and surcharges are included, according to a court official. The new penalty also would apply to possession of drug paraphernalia ordinance violations.

There were 187 county marijuana tickets issued in 2019, according to the resolution.

Under the existing ordinance, "some individuals may not be able to afford the fine and fees associated with a marijuana possession citation, which may result in their case being sent to collections or an increased charge, which is less likely to be collected by Milwaukee County and can affect an individual's financial situation, including their credit scores," the resolution said.

State law also mandates that information, including photographs and fingerprints, of people arrested for offenses – including minor ordinance violations – involving controlled substances be submitted to the State Department of Justice. The arrest information is available to anyone performing a criminal background check through the department.

The county ordinance applies to cases involving 25 grams or less of marijuana. Law enforcement can still issue state tickets, if necessary, for amounts larger than that, the ordinance said.

The proposal cites a 2020 ACLU report that found that Black people are 3.64 times more likely that Whites to be arrested for marijuana possession, despite similar usage rates. ACLU-Wisconsin found that Black Wisconsinites were 4.2 time more likely than White Wisconsinites to be arrested for possession than Whites and that Wisconsin ranks 14th in the country for the largest racial disparities in marijuana possession arrests. 

Wisconsin also was one of 17 states that saw a jump in cannabis possession arrests from 2010 to 2018 "despite an increasing shift in attitudes toward decriminalization and legalization of marijuana," the resolution said. 

WJI reported that Black people were defendants in 77% of marijuana possession cases in Milwaukee Municipal Court in 2019, despite making up just 39% of the city's population.

By Gretchen Schuldt

​African Americans were defendants in more than three-fourths of the marijuana possession cases opened in Municipal Court last year, despite accounting for just 39% of the city's population.

Blacks were defendants in 462, or 77% of the 603 cases filed. Whites were defendants in 63 cases, or 10% of cases filed; Hispanics were defendants in 62 cases, also 10%; and Asians in 11 cases (2%), according to court statistics. Just one Native American was a defendant, and four defendants were of unknown races.

​"Frankly, these numbers are outrageous," WJI President Craig Johnson said. WJI actively advocates for cannabis legalization.

The figures "illustrate once again the disparate impact of cannabis prohibition laws on communities of color," he said. "Just as is the case with state criminal prosecutions, the numbers regarding Milwaukee Municipal Court citations show that African Americans are cited far more often than whites - and studies have consistently shown that both groups use marijuana at the same rates." 

​More defendants had home addresses in the predominantly African American zip codes of 53206 and 53209 – 65 and 64, respectively – than in any other Milwaukee zip code. (See map) ​

The city is 45% white, 39% African American, 19% Hispanic, 4% Asian, and 1 percent American Indian / Alaska Native, according to the U.S. Census Bureau.

Tickets for marijuana possession "shouldn't be dismissed as insignificant," Johnson said. "They can lead to warrants if unpaid, and can have a heavy financial burden on those who receive them, especially young people. They can also have an adverse impact on employment, rental applications and other areas of life. Wisconsin must join other Midwestern states in legalizing marijuana so that this source of disparity in our justice system can be eradicated."

Milwaukee home zip codes of defendants in 2019 Municipal Court possession of marijuana cases.

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

​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.

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.​