Wisconsin's Racial Chasm In Marijuana Enforcement
During Wisconsin's 2018 midterm election, which saw a record-breaking turnout, it was not the close gubernatorial race that motivated Milwaukee resident Marlon Rockett to cast an early ballot. It was the county's non-binding referendum on whether recreational use of marijuana should be legalized.
Racial equity is a top reason why Rockett favors legalization, which 70% of Milwaukee County voters also supported. Rockett, who co-hosts a podcast on issues affecting the black community, said laws against marijuana are a "tool that's used to help hold everyday Americans back." And the enforcement of these laws, Rockett said, is largely concentrated on African Americans.
"There's a lot of things in our country that hold [black people] back or promote the inequality," Rockett said. "If anybody knew their history, they would know that cannabis is especially … destructive."
In fact, in 2018, blacks were four times as likely to be arrested as whites for marijuana possession in Wisconsin, a Wisconsin Watch review shows. Experts point to policing practices and the racial history behind marijuana prohibition as leading to arrest disparities.
Rockett said there are many benefits to cannabis, but in Wisconsin, "we only use it for one benefit, and it's not a benefit, it's a negative factor," Rockett said. "And that's to criminalize everyday Americans. We use it to hurt and break down other people. It's crazy to me."
A few months after the referendum that drew Rockett to the polls, the newly elected governor, Democrat Tony Evers, announced budget proposals for statewide decriminalization of marijuana and legalization of it for medical use.
Under his decriminalization proposal — which is aimed at part in reducing the state’s racial disparities — individuals possessing, manufacturing and distributing 25 grams or less of marijuana would not face penalties. Evers also wants people convicted of possessing small amounts of marijuana to be allowed to have their records expunged.
Now that Evers has signed the two-year state budget without those provisions, Assembly Speaker Robin Vos, R-Rochester, says he would favor legalizing medical marijuana. But Vos has said he opposes loosening enforcement. "We're not going to decriminalize it so people can carry around baggies of weed all over the state," Vos said at a WisPolitics event in February 2019.
Enforcement across Wisconsin varies
Almost 15,000 adults in Wisconsin were arrested in 2018 for marijuana possession, a 3% increase from 2017, according to data from the state Department of Justice.
Prison admissions in Wisconsin for marijuana also were higher in 2016 for black individuals than for whites, according to the state Department of Corrections. Some experts believe this disparity can be attributed to policing practices in low-income neighborhoods that tend to have more residents of color.
"It can just limit you in every direction," Marlon Rockett said, citing estimates that drug convictions can cost African Americans the equivalent of decades of potential wealth. "Your family's going to suffer; you're going to suffer."
Under state law, possession of marijuana of any amount for a first-time offense can lead to up to six months in jail and a fine of up to $1,000. Any offense after that is classified as a felony and can result in a sentence of three and a half years in prison with a maximum fine of $10,000.
Marijuana is currently classified as a Schedule 1 drug by the U.S. Drug Enforcement Administration, defined as a substance with "no currently accepted medical use and a high potential for abuse." Other Schedule 1 drugs include heroin, LSD and ecstasy.
Even though marijuana is illegal in Wisconsin, officers have discretion if they come across someone with marijuana. An officer can ignore it, give a ticket or take someone to jail, Dane County Sheriff Dave Mahoney said.
When Ben, now 23, got pulled over for speeding on a Wisconsin highway in mid-January, he appeared fidgety to the officer, and the officer called for backup. He asked to remain anonymous — "Ben" is a pseudonym — because marijuana is illegal in Wisconsin. He fears further legal repercussions from speaking out.
Ben had not smoked marijuana that day, but he had smoked a few days before that and told the officer he would still have THC in his system. For the next half hour, the officers went through his car. The last place they looked was in the trunk; the last item they searched was a backpack. There, officers found 13 grams of marijuana.
He was issued a $200 ticket for speeding and a $389 ticket for marijuana possession. The nearly $600 in tickets were a financial squeeze for Ben, who said he spends much of his income on student loan debt.
If Tony Evers' proposal were adopted by the Legislature, officers would probably have sent Ben on his way with just a ticket for speeding
"I understand I did something wrong," Ben said. "But at the end of the day, I didn't bother anybody. I was ready to take my ticket. I was open about speeding. I admitted to it. I apologized."
Arrest brings consequences
In Juneau County, Eric Hahn was charged with two misdemeanor counts of possession in 2014 and served a year and a half of probation.
Hahn was taken to jail on a Friday and remained there until his bond hearing Tuesday afternoon, Eric's wife, Becky, said.
"For that many days, I had no husband, and my little girl had no father," Becky Hahn said. "I'm not sure why they didn't allow him a bond hearing that day and let him go."
Becky Hahn said she and her husband have always been pro-marijuana. When they were younger, both of them were "rather oblivious" to the repercussions of being caught with marijuana.
The Hahns use marijuana for both recreational and medical purposes. Since starting to use marijuana regularly, they stopped taking their antidepressants, say they sleep better and feel better overall.
As they got older, they realized the severe consequences of being caught with marijuana in the state of Wisconsin, where all uses are illegal.
Becky Hahn said that as a day care provider in charge of others' children, it was difficult after Eric's marijuana possession charge.
"People think that 'Oh, she had pot and because they had pot, they're just these dirty hippies,'" Becky said. "I actually lost some business, and we struggled with that."
Under state law, if Eric gets caught with marijuana again — regardless of the amount — it is an automatic felony.
One of the biggest impacts of this, Becky said, would be losing the right to vote. She said they are both very politically active. Under Wisconsin law, felons lose their right to vote until they complete their sentences, including any supervised release.
Blacks more often penalized for pot
Ben is white, but he wanted to share what happened to him because this "happens to the black population repeatedly where unjustified and pointless incarcerations are happening."
In April, Rep. Melissa Sargent, D-Madison, unveiled a bill to fully legalize marijuana in Wisconsin. This is her fourth time introducing the bill. In this version, Sargent hopes to address racial disparities in the enforcement of Wisconsin's marijuana laws by broadening the availability of expungement and releasing people incarcerated for low-level nonviolent marijuana offenses.
Milwaukee is the most segregated city in the United States, according to the Brookings Institution, which found that nearly 80% of blacks would have to move to another neighborhood in the city to achieve full integration.
In Milwaukee, blacks made up 72% of "small-scale" marijuana possession arrests but 39% of the population between 2012 and 2015, according to research by the Public Policy Forum, a nonprofit, independent research organization. The Milwaukee-based group defined "small scale" as possession of 25 grams or less of marijuana.
The same research found whites made up 12% of the arrests but 37% of the city's population.
"The impact of being a person of color in our communities just makes it harder to live," Sargent said.
The rate of using marijuana is similar between whites and blacks, University of Wisconsin-Madison sociology professor Pamela Oliver said.
"The only possibility for these statistics to happen is for police to be stopping blacks more than whites," Oliver said. "Possession of marijuana is in the pocket. How did you know it was in their pocket unless you stopped them? We know the usage patterns are not different, so if you're generating a difference in arrests, it has to be differential policing."
Would decriminalizing solve disparities?
Tony Evers stated his proposal for statewide decriminalization is about "connecting the dots between racial disparities and economic inequity." He also referred to Wisconsin's incarceration rate of black men — which is the highest in the country.
"The bottom line is that we are spending too much money prosecuting and incarcerating people — and often persons of color — for non-violent crimes related to possessing small amounts of marijuana," Evers stated in a February 2019 tweet.
Dane County has already decriminalized possession of small amounts. Dane County District Attorney Ismael Ozanne has told law enforcement not to bring him any cases smaller than 4 ounces — or more than four times larger than what Evers proposed.
Despite certain parts of the state deciding to decriminalize marijuana possession, Wisconsin continues to have harsh maximum penalties, Sargent said. In addition to Madison, 15 areas of the state have decriminalized, including Milwaukee, Appleton, Racine, Green Bay and Eau Claire, according to the group NORML, which favors legalization.
Decriminalizing possession of 25 grams of marijuana would make a difference since this is more than a person would be smoking on any one occasion, said Sam Kamin, a professor of marijuana law and policy at the University of Denver's Sturm College of Law.
If Wisconsin decriminalizes, there would likely be a decrease in arrests and an overall reduction in the state's jail and prison population, said Vincent Southerland, executive director of the Center on Race, Inequality and the Law at New York University School of Law.
However, without addressing policing practices in communities of color, the racial disparities will remain the same because of the underlying issues of how different populations get policed, Southerland said. Police tend to "saturate" such communities, he said.
"Simply legalizing marijuana does not, in turn, end the War on Drugs in the way in which the police enforce the law — that's the fundamental problem," Southerland said.
Arrests down but disparities remain
The state of New York, where marijuana possession of small amounts is decriminalized, has seen a decline in marijuana arrests but not a decline in the racial disparity of who ends up getting arrested, lawyer Vincent Southerland said.
"Overall, the arrest numbers are down, but if you're black, you're still far more likely to be arrested for it than you are if you're white," Southerland said.
States that have legalized, like Colorado, have seen a similar trend — overall arrests go down but the racial disparities are still there.
A 2016 report from Colorado's Department of Public Safety found that the arrest rate for marijuana possession for whites decreased by 54% while the arrest rate for blacks decreased by 23% from 2012 to 2014. Even though marijuana is legal in Colorado, people 21 years old and older cannot possess more than 1 ounce. Larger amounts may result in "legal charges and fines."
Additionally, it is illegal to use marijuana in public places, even in Colorado. Southerland said more people of color tend to live in public housing, which has banned all smoking. That forces marijuana users to do it outside — illegally.
Southerland cited it as an example of the way in which "race and economics often intersect" to create disparities.
Said law professor Sam Kamin: "Almost anywhere you see cannabis illegal you see disparities in arrests, whether that's in states that have no lawful cannabis or states that have fully legalized. The idea that marijuana is going to make problems in criminal justice disappear is not realistic. It makes them less pronounced. It can reduce the impact, but by itself, marijuana legalization doesn't solve the problems."
Kamin believes the most compelling argument for marijuana legalization is framing it as a social justice issue and trying to address some of the "worst disparities in the criminal justice system."
Said Southerland: "Continuing on this same path [of prohibition] is just essentially continuing to feed the beast of mass incarceration."
Racial roots of marijuana laws
Prior to moving back to Wisconsin, Ben spent four years on the East Coast attending college. He smoked marijuana for the first time his sophomore year. He started using marijuana to help him sleep, since many nights he was not able to fall asleep until 4 a.m.
Overall, he said his life had improved after he started using marijuana — he was better rested, improved his grade point average and generally felt more positive. At the very least, he believes Wisconsin should decriminalize marijuana, especially with neighboring states, Illinois and Michigan, preparing for full legalization.
"Moving [back to Wisconsin], I feel like I'm 10 years behind," Ben said. "It's incredible what people get charged with and go through and deal with simply for doing something that's not bothering anybody. It's all just a pipeline to keep people locked up and keep the rich [people] rich in Wisconsin."
Even though legalizing marijuana will not erase racial disparities and racial injustices in Wisconsin communities, it is a move in the right direction, Melissa Sargent said.
Vincent Southerland believes the prohibition of marijuana stems from racial bias. It has historically been associated with immigrants from Mexico and with black people, and it was criminalized as a way to control those populations, he said.
"Legalization would tend to remedy or attempt to remedy some of those faulty connections between race, the drug itself and criminality that have led to disparities in policing, disparities in enforcement and disparities in who we see in our jails and prisons across the country," Southerland said.
Before marijuana was criminalized in 1937, people used it for medicinal and social purposes — the same things Americans are being charged with crimes for today, Marlon Rockett said.
"What changed? That's what we should be asking ourselves," Rockett said.
Reporter Natalie Yahr contributed to this story, which was produced as part of an investigative reporting class at the University of Wisconsin-Madison School of Journalism and Mass Communication under the direction of Dee J. Hall, managing editor of Wisconsin Watch. The Cannabis Question is a series exploring questions about proposals to legalize marijuana in Wisconsin. Wisconsin Watch's collaborations with journalism students are funded in part by the Ira and Ineva Reilly Baldwin Wisconsin Idea Endowment at UW-Madison. The nonprofit Wisconsin Watch collaborates with Wisconsin Public Radio, Wisconsin Public Television and other news media. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.
This report is the copyright © of its original publisher. It is reproduced with permission by WisContext, a service of PBS Wisconsin and Wisconsin Public Radio.