Like many other African American men in Milwaukee, Rodney Hudson is tagged with a label he’ll never shake: he is a convicted felon. Hudson doesn’t claim to be an Eagle Scout — he pleaded guilty at 18 for carrying a concealed weapon and has two marijuana possession convictions — but he says the life sentence imposed by the felony label is too harsh.
In Wisconsin, a felony conviction can be the gateway to a life of poverty. Felons don’t qualify for financial aid for higher education, are ineligible to hold occupational licenses, have difficulty finding work and their driver’s licenses are suspended for a minimum of six months.
Now 30, and the dedicated father of a 10-year-old girl and an 8-year-old-boy named Rodney Jr., Hudson became a felon not because he committed a violent crime, but because in Wisconsin, a second state charge for marijuana possession is automatically a felony. In two states, Colorado and Washington, it is now legal to possess marijuana, and in many other jurisdictions, it merits only a ticket and a fine.
Currently, an individual can be convicted three times for an arguably more serious offense, driving while under the influence (DWI), before the offense is charged as a felony.
Hudson tries not to pity himself. He gets up each morning and follows a few job leads, but so far the few opportunities he’s had to find steady employment just haven’t panned out. He recently interviewed at Chick-fil-A, which was hiring workers for its new Greendale and Brookfield restaurants. He didn’t get it.
“I haven’t had a job in two years,” he said. “It’s so discouraging. I feel like I’ve been blackballed.”
Police have the authority to issue a ticket or a warning instead of making an arrest for marijuana possession, according to Margaret Johnson, racial disparity practice coordinator at the Wisconsin State Public Defender’s Office. In Milwaukee, a first offense marijuana possession charge for less than 25 grams is a citation, but all subsequent arrests are sent to the District Attorney’s office for prosecution, said Lt. Mark Stanmeyer of the Milwaukee Police Department. Police have no alternative other than to make an arrest, Stanmeyer said.
But, in Dane County, home of the flagship University of Wisconsin campus, police are known to look the other way when college students are found with marijuana, Johnson said, adding that it’s the same in the Milwaukee suburbs.
Nationally, African Americans are nearly four times more likely to be charged with marijuana possession than whites, although their rates of marijuana use are similar, according to a 2013 ACLU report, “The War on Marijuana in Black and White.”
In Wisconsin, blacks are six times as likely to be charged with possession than whites, the fourth highest disparity in the nation, behind neighboring states Iowa, Minnesota and Illinois. In Milwaukee County, where nearly 70 percent of the state’s African Americans live, 4.7 blacks are arrested for marijuana possession for every one white, according to the ACLU, which examined data from 2001 through 2010. FBI statistics show that in the City of Milwaukee, blacks were 5.5 times more likely to be arrested for marijuana possession than whites in 2011, the most recent year for which data are available.
Racial disparity in marijuana arrests is a key contributor to racial disparity in incarceration. Possession of marijuana was among the most frequent crimes charged in the state between 2011-2013 and most of the cases originated in Milwaukee, according to data provided by the Wisconsin Office of the Director of State Courts.
According to Chris Ahmuty, director of the ACLU in Wisconsin, once people are caught up in the court system the police are looking out for them, and they’re more apt to be arrested again. “Bad things begin to accumulate and maybe then you end up in prison,” Ahmuty said.
Police on neighborhood beats know who’s on probation, said Jennifer Bias, the deputy trial division director and affirmative action officer at the State Public Defender’s Office. Those who are, “are hammered, they’re arrested; their parole status is taken away,” Bias added.
In an understatement, Rep. Evan Goyke, a former assistant public defender, noted, “The success rate of the people on probation in the state of Wisconsin is not great.”
Wisconsin leads the nation in terms of racial disparity in the prison system, according to a study by the Employment and Training Institute at the University of Wisconsin, Milwaukee. The state’s 12.8 per 100 incarceration rate for black males is almost double the national average and three percentage points higher than the state with the second-highest disparity (Oklahoma), the study found.
Most of the offenses are drug-related, and two-thirds of the prisoners are from six ZIP codes representing the poorest neighborhoods in Milwaukee. The hardest hit of those areas is 53206 on the North Side, where Hudson grew up. Nearly 4,000 men from his neighborhood were in prison or had done time between 2000 and 2010, the study found.
Legislators have long known that racial profiling is a problem in the state. Gov. Tommy Thompson established a task force on racial profiling in 1999, which released a report in 2000. His successor, Gov. Jim Doyle, commissioned another report in 2008, which made dozens of recommendations, including better data tracking and sharing, education on cultural competency, alternative justice programs, and improved methods to track progress related to racial disparities. Though drugs and drug abuse were mentioned frequently as areas to be addressed, neither report recommended changes in drug-related laws.
“We need to rethink how our criminal justice system looks at marijuana,” said state Rep. Melissa Sargent, a Democrat from Madison who introduced legislation to legalize marijuana in January.
Sargent said it is egregious that arrests for marijuana possession in Wisconsin are increasing while across the country recreational smoking is increasingly accepted. In Colorado, for example, residents can walk into a shop licensed to sell marijuana and purchase as much as an ounce, while non-residents can buy 1/4 of an ounce.
Possession arrests also are extremely expensive, Sargent said, noting that each such arrest costs the state $400 to $500. The ACLU report found that in 2010 alone, Wisconsin spent more than $44 million enforcing marijuana possession laws.
Despite increasing public support nationally for legalization, Sargent said she faces stiff opposition from fellow Wisconsin lawmakers, who don’t see any benefits from changing current laws. Many still believe the false narrative of marijuana being a “gateway drug that will ruin our society,” she said. Sargent has only convinced a handful of legislators to sign on, and the governor is firmly opposed.
“Legalizing marijuana is not a priority for Governor Walker. As Governor Walker travels the state, this is not an issue he hears about,” wrote Laurel Patrick, a spokesperson for Gov. Scott Walker, in an email to the Milwaukee Neighborhood News Service.
Goyke, whose district covers part of Milwaukee, hears a lot about the disparity in how marijuana possession cases are handled compared to driving while intoxicated (DWI), which he considers a more serious offense.
Goyke said Wisconsin legislators need to work on parity in the sentencing structure for marijuana possession and other offenses. Last year, he introduced legislation that would make the fourth conviction for marijuana possession a felony, the same as the penalty for operating a vehicle while intoxicated.
State Rep. Mandela Barnes, whose 11th District is located in Milwaukee, took a slightly different tack last session, introducing a bill that would have made any marijuana possession charge involving 25 grams or less a municipal offense. The legislation failed, not surprisingly, according to Barnes, since the majority of legislators don’t represent areas with a significant minority population.
“As long as [legislators] see it as an inner-city Milwaukee issue, a black and brown issue, the less likely they are going to take action on it,” said Barnes, who is a member of the 2014 Legislative Council on the Review of Criminal Penalties.
While their white constituents use marijuana just as much as blacks, said Barnes, they’re not as likely to be arrested. Barnes said that for things to change, there would need to be a statewide referendum, or more municipalities would need to decriminalize marijuana on their own.
Tickets and fines
The Washington, D.C., City Council recently passed the “Marijuana Decriminalization Amendment Act of 2014,” which made possession of one ounce or less of marijuana a civil offense subject to a $25 fine. The purpose of the act was to address the racial disparity in marijuana possession arrests and the subsequent toll on the community that the convictions cause. As in Milwaukee, the city’s African American community has borne the brunt of the marijuana laws.
In Chicago, Police Superintendent Garry McCarthy is recommending changes to a municipal ordinance enacted two years ago that gave Chicago police the option to issue tickets rather than arrest those caught with less than 15 grams of marijuana. Under the ordinance, people who are caught smoking marijuana in public, or possessing it at Chicago schools or parks or those without proper identification are not eligible for tickets, which prevented it from making any real impact. Most of the individuals caught possessing marijuana in Chicago are arrested rather than ticketed, McCarthy said. He wants police to be able to issue a ticket in all cases involving less than 15 grams, regardless of the circumstances.
In Milwaukee, ACLU Associate Director Molly Collins is working on an ordinance similar to the D.C. law. Collins said that statewide legislation to legalize marijuana is unrealistic given the makeup of the legislature, so the solution needs to be local. Collins, who considers marijuana use a health issue, said if the community is serious about addressing the mass incarceration of African Americans, possession must be decriminalized.
“It’s a racial justice issue,” Collins said. “We have to stop pulling these African American men out of their communities.”
Editor’s note: This article corrects an inaccurate reference to recent legislation introduced by state Rep. Evan Goyke.