RACINE — It’s a June evening and a Racine police officer spies a suspiciously parked vehicle on Roosevelt Avenue.
Approaching the car, he sees a 27-year-old man sitting in the driver’s seat smoking what appears to be a joint. A few minutes later, after recovering 1.4 grams of marijuana, he issues the man a municipal citation.
Six months later, another Racine police officer conducts a traffic stop near Racine and 13th streets. The male officer calls for a female officer to search the 25-year-old driver. Before that female officer arrives, the young woman behind the wheel confesses to having two small “baggies” of marijuana in her pocket, a total of 1.7 grams of pot.
This time, instead of issuing the offender a citation, the officer writes up a report requesting that she be charged with the criminal offense of misdemeanor marijuana possession, a state charge.
Racine ostensibly decriminalized the possession of marijuana for personal use in 1990 when it created a local ordinance making possession of 25 grams or fewer of the substance a forfeiture.
A Journal Times review of minor marijuana possession cases handled by Racine police in 2016, however, found that officers were more than twice as likely to request criminal charges for offenders found with 25 grams of marijuana or less, than they were to issue citations.
Police say maintaining public safety sometimes requires that officers be given the latitude to pursue the more punitive state charge even in lower-level possession cases. But critics of that practice say such discretion only leads to an imbalanced system — one that can result in some offenders being unfairly saddled with a criminal record.
Possession of any amount of marijuana is illegal under Wisconsin law. But, over the years, state municipalities have passed ordinances making the possession of small amounts of the drug a forfeiture — from 5 grams in Stevens Point to 28 grams in Madison and Kenosha — as long as the drug is not packaged for sale.
Racine’s marijuana citation is punishable by a $225 fine. The state charge, on the other hand, is a misdemeanor that carries the potential for six months in jail, a $1,000 fine, and the suspension of one’s driver’s license. The charge will also show up in the state’s online courts database, commonly referred to as CCAP.
Eliminating cases in which defendants were also charged with felonies including drug dealing, possession of heroin or cocaine, and gun-related crimes, The Journal Times found that police requested misdemeanor charges for 71 people found with 25 grams of the drug or less in 2016, while issuing 30 citations.
In 45 of those cases, offenders were found with 5 grams of marijuana or fewer.
Saying he could not speak to the individual cases involved without reviewing the police reports and criminal complaints, Racine Police Chief Art Howell said officers are given the ability — under the supervision of their sergeant — to decide whether someone found with 25 grams of marijuana or less should be issued a citation or be referred for a state charge.
Several factors go into that decision-making process, Howell said, including the offender’s background, the location of the incident and the source of the complaint. An officer might find a state charge more fitting if an offender has a criminal history, or is caught with the drug in a high-crime area, than if the offender is found in a less troubled area and has no record, he said.
“Let’s say I am a beat officer and I am pretty familiar with the people who are causing problems in the community, and I am literally trying to clean that area up,” Howell said. “If I know these individuals are a threat to public safety in that area, I might give them a higher charge, because ultimately what I am trying to do is relieve that area of criminal activity.”
While no officer is infallible, Howell defended the right of beat cops familiar with threats in the community to issue state charges in minor marijuana cases if they believe the public’s safety is at issue.
Although The Journal Times found that in 41 of the incidents involving state charges, none of the offenders had a previous criminal record — at least no record that could be viewed on the state’s online courts database — in two cases, offenders with no criminal record were later charged with attempted homicide in gang-related shootings.
“When charging decisions are made, officers are trained to consider the totality of the circumstances,” Howell said. “If habitual criminals, known gang members or those involved in other crimes are held to a lessor municipal standard, public safety is jeopardized. With internal supervisory oversight and external review through the (district attorney’s) office, checks and balances are currently in place to achieve balanced outcomes without compromising public safety.”
Too much discretion?
For state Rep. Evan Goyke, a Democratic lawmaker representing the Sherman Park area of Milwaukee, it is that very discretion — one that officers across the state have — that can lead to the biggest disparities in the way drug offenders are prosecuted in Wisconsin.
It’s part of the reason that he and a Republican lawmaker, State Rep. Adam Jarchow of Polk County in the far northern part of the state, are working to pass legislation that would make it a forfeiture under state law to be in possession of 10 grams or fewer of marijuana.
Should the measure be signed into law, police would no longer have the option of pursuing state charges in those cases as long as it was packaged for personal use. The proposal would maintain law enforcement’s ability to pursue “possession with intent to deliver” charges if they thought the person was selling the drug.
“Where we have discretionary decisions in the system — where human beings are given the power to decide the fate of criminal cases — there will be disparities,” said Goyke, who worked as a public defender and law professor before becoming a lawmaker. “There is no actor in our criminal justice system that has greater discretion than the law enforcement officer.”
Goyke, who is white, notes that in his experience representing people charged with possession of marijuana in Milwaukee County, “people that looked like” him often got the benefit of a citation, while people who didn’t were charged with a crime.
The Journal Times did not look at the race when it conducted its review of those issued citations last year and those given state charges.
Discussing whether race could play a role charging requests, Howell said the department conducted an internal study in 2014 in which it found that people of color arrested for marijuana offenses between 2005 and 2014 were treated the same as their white counterparts.
The study, however, did not compare cases in which officers issued citations to those in which they pursued state charges. It took into account a variety of marijuana-related cases, from minor possession to drug trafficking cases, including cases involving more than 100 grams of the drug. The study looked at how the offenders were charged, and the sorts of sentences the offenders received, after their cases worked their way through the court system.
By not looking specifically at who got tickets and who did not, Goyke believes the study fell short:
“It seems to me that if they did not include a review of their own discretionary decisions about citations versus charge referrals, they missed law enforcement’s greatest discretionary act — to trigger the process, or to not.”
Local activist Alfonso Garner, whose concerns about drug enforcement in the black community in Racine partly prompted the Police Department to conduct the study, said he is troubled by the number of people in Racine who have received state charges for minor marijuana possession.
“If you have an ordinance on the books, use that instead of putting a person into the penal system,” he said.
Coming tomorrow: On Monday The Journal Times will look at how the Racine County District Attorney’s Office is shifting its approach on the handling of minor marijuana possession cases.
“When charging decisions are made, officers are trained to consider the totality of the circumstances ... With internal supervisory oversight and external review through the DA's Office, checks and balances are currently in place to achieve balanced outcomes without compromising public safety."
— Racine Police Chief Art Howell