RACINE — Racine Police Chief Art Howell and Racine County Sheriff Christopher Schmaling have denounced the City Council’s recent directive for the police department to issue citations for first-time marijuana possession of fewer than 25 grams, saying it raises broader questions about the power of local and state government.
“As is the case on a national level, ordinances created by the local City Council may be more restrictive than state statutes; however, such ordinances may not be less restrictive,” Howell said in a statement to The Journal Times. “The latter would effectively allow for local elected officials to usurp the powers and authority reserved for state legislators.”
However, City Attorney Scott Letteney said after Tuesday’s City Council meeting, “this is one of these areas where the law is not clear. It does not say yes or no. While the law is not clear, the Common Council likely has authority. It’s clearly not illegal.”
Howell’s sentiment was echoed by Schmaling.
“I advise if council members want to change the law, they should do so properly by going to the state capital and lobbying for changes, rather than handcuffing their own police,” Schmaling said. “This is the wrong way to go about long-lasting change in state statutes, as well as sending the wrong message to our community.”
He continued, “At the end of the day, I can assure you as the sheriff and chief law enforcement officer of this county, we will continue to follow the law as written, and my deputies will continue to exercise their discretion, as they have done for decades — which encompasses all of Racine County, including the City of Racine.”
Howell said the City Council has the authority to set the “authorized strength” and corresponding budget of the police department, but the marijuana directive may step over the line.
“Whether crafting advisory directives or enacting new ordinances, the act of defining the scope of police authority and/or taking steps to remove or dilute police discretion, from my perspective, does not fall under the enumerated powers granted to local elected officials,” Howell’s statement said.
Public safety concerns
Howell said that although the recent referendum revealed strong support for the legalization of marijuana for medicinal purposes, he said support for recreational legalization is “not as widely embraced at this time.”
In the November referendum, medical marijuana had the largest margins of approval, with 73,272 for and 13,166 against in Racine County. The numbers were 22,984 for and 3,234 against in the City of Racine.
Support for recreational marijuana was not as strong, but still had a sizable margin — 50,486 for and 34,433 against in Racine County, and 17,456 for and 8,863 against in the City of Racine.
The city also asked about decriminalization in Wisconsin, which was supported: 18,665 for to 7,336 against.
Howell admitted that there are monetary benefits for legalization, but also believes prospective public safety concerns could arise, including an increase in impaired driving, related injuries and fatalities and increased black market grow operations and related arrests.
“The increase in plant potency, and the inability for police officials to regulate and place the harvest from home grow operations into Schedule I or Schedule II classifications will result in unregulated and unsafe cannabis products being introduced into the community,” Howell’s statement said.
Schmaling also believes that issuing citations for marijuana could have negative side effects that could cause a safety issue.
“Racine City Council members need to empower and support the brave men and women who protect us rather than trying to strip away their discretion and limiting their authority,” Schmaling said. “After all, who knows the streets and the career criminals better than our police?”
While the City Council’s directive does not legalize marijuana, it requires enforcement of a 1990 city ordinance stating that officers could issue citations for marijuana possession of less than 25 grams.
A 2017 Journal Times investigation found that officers were twice as likely to issue criminal charges in such cases and that trend has continued.
“Our goal is when a person violates for the first time, it’s not the thing that destroys them,” said Alderman John Tate II from the 3rd District, who initially wanted the forfeiture set at $1. “Whether that’s their life by their going to jail, whether it’s their livelihood by taking a huge chunk out of their money.”
Council President Jason Meekma of the 14th District compared possession forfeitures in other states and offered an amendment of $75.
“That amount is something that is reasonable and is significantly less than any other place,” said Meekma. “I think it sets a limit where people will hopefully think twice about the use of marijuana because, as Alderman (Henry) Perez said, it is still illegal and we need to treat it as such.”
The fine amount
The two compromised and the council approved a range from $1 to $75. Letteney estimated that with court fees, the forfeitures would go from about $62 to about $142.
The dollar amount to be written on the citation, also known as the bond schedule, will be determined by Municipal Judge Rebecca Mason, then sent to the City Council for approval.
The Journal Times contacted Mason’s office on Friday for comment but she was already on break for the holidays. Mason is married to Racine Mayor Cory Mason.
If the defendant pleads “guilty” or “no contest,” Rebecca Mason would determine what the final forfeiture amount would be, based on the severity of the case.
A “range for a forfeiture is set because no two cases are exactly the same,” Letteney said via email. “One person may possess 1 gram of marijuana, where another possesses 24 grams, or a person might be cited for violations of more than one law.”
After the first citation, any further marijuana possession charges would go through the criminal court system.
“What’s next, mandatory warnings for drunk/drugged drivers?” Schmaling said. “Removing the limited discretion the police officers have is a dangerous proposition.”
Howell said he looks forward to working with the City Council, the district attorney and area law enforcement leaders to find a solution that does not compromise the Police Department’s core mission, public safety goals and objectives.