Justice in Black and White

  Three recently released studies confirm what many Milwaukeeans already believe: The state’s justice system treats black and white drug offenders differently.

  - The Sentencing Project found that the rate of arrests of white Milwaukeeans for drug offenses decreased 63% from 1980 to 2003. Yet the rate of arrests of black Milwaukeeans increased 206% during those same years. The authors found no corresponding increase of drug use among African Americans to explain the changes in arrest rates. Instead, they conclude that the policies of the national War on Drugs have disproportionately targeted African Americans.

  - Human Rights Watch found that African Americans in Wisconsin are 42.4 times more likely than whites to be incarcerated for drug offenses—the most disparate ratio in the nation.

  - Gov. Jim Doyle’s Commission on Reducing Racial Disparities in the Wisconsin Justice System noted that “African Americans comprise 6% of the overall population of Wisconsin, but also represent 45% of the population in the adult [Department of Corrections] facilities.”

  The state commission’s report suggested that this didn’t happen by accident, nor does it serve to reduce drug use or crime levels. “[S]erious concerns were expressed that enforcement strategies that target particular neighborhoods or that target open-air drug trafficking are not productive in that many whose primary need is treatment end up confined in jail or prison and, unless having received treatment, are more likely to commit new crimes upon release,” it stated.

  Gov. Doyle has called for all state agencies to track and analyze racial disparities in the justice system, and plans to assist the Office of Justice Assistance, law enforcement agencies and the Department of Corrections in their efforts to become more race-neutral.

  Milwaukee Common Council President Willie Hines has asked for the newly formed Community Justice Council to look at the findings and prepare recommendations.

  “The disparities raise concerns and eyebrows,” he said in an interview last week.

  Hines said he’s not in favor of softer penalties for drug crimes, but wants to ensure that African Americans are being treated fairly. He added that the perception of unfairness throughout the criminal justice system affects residents’ interactions with police officers in their neighborhoods.

  “If it’s the same offense, the courts should prosecute equally,” Hines said. “We need to examine the data and come up with tools, but we also need to hold individuals accountable and restore and protect the integrity of the court system.”

Why?

  The Sentencing Project noted that the War on Drugs, initiated by President Richard Nixon and intensified during the Reagan administration, made the number of arrests and prosecutions for drug crimes a measure of success, and the money for local law enforcement flowed accordingly.

  “It’s something that feeds on itself,” said Milwaukee defense attorney Alex Flynn. “Reagan created a drug czar and this tremendous bureaucracy and funding. But, cynically, it’s a self-sustaining system that needs people to prosecute.”

  But the money isn’t being applied equally to all communities, nor is it being granted in large sums for drug treatment.

  “If you’re a community with no drug arrests, you don’t get any money,” Flynn said.

  The Sentencing Project reported that police presence tends to be higher in low-income African-American neighborhoods, and that drug sales in many African-American communities are more likely to occur in public spaces among strangers, making arrests easier. Conversely, white drug users—especially in the suburbs—are more likely to know their dealers and purchase or use their drugs in private, at work, in taverns or in athletic leagues.

  Defense attorney Nick Kostich—who spent the early part of his career in the Milwaukee District Attorney’s Office—said that it’s simply easier for law enforcement to find low-level drug users and dealers when they’re out in public. He added that abuse of pharmaceuticals is growing, especially among white users, but these cases are difficult to identify and prosecute.

  “I think there’s trafficking going on at a higher level, in so-called ‘good’ neighborhoods,” Kostich said. “But it’s sometimes more difficult to infiltrate these groups. You have to invest the time.”

  Kostich noted that he felt that reforms implemented by District Attorney John Chisholm, who succeeded longtime DA Michael McCann in 2006, would help to reduce racial disparities in local drug cases. Chisholm is more likely to send low-level drug offenders to treatment before prosecuting them.

  “Locally, in the past 12 months, I think we’re beginning to appreciate this disparity, particularly in state court,” Kostich said.

  Federal court, however, is a different story. Both Kostich and Flynn said that issuing broad, multi-count indictments involving dozens of suspects in drug cases is a new strategy, and low-level, first-time offenders are getting swept up in them.

  “The federal court system used to only prosecute high-level traffickers,” Kostich said. “But the scary part is that with these large indictments, your case can be combined with others even if it’s your first offense.”

  Kostich said that federal judges are less likely to divert drug offenders into treatment and they are likely to give longer sentences to violations involving crack, which is more likely to be used by African Americans, than marijuana, powder cocaine or pharmaceuticals, which are more likely to be used by whites.

  “I believe that the racial disparity is still there,” Kostich said.

  Flynn cautioned against throwing the book at drug offenders, even if it may seem politically popular.

  “We can’t look to the criminal code to solve all of our problems,” Flynn said.

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