Who’s Charged for Pot Possession?
Review of cases shows black males mostly charged for a second offense.
Under what circumstances? How do they get caught?
Is there a racial disparity?
The Wisconsin Justice Initiative spent hours examining Circuit Court files to find who gets busted, where they get busted, and what happens to them. Follow along as we map it out, case by case.
A few caveats: First, the event descriptions are based on criminal complaints; in other words, they are law enforcement’s version of what happened. Second, we are looking at only those cases where the defendant was charged ONLY with possession of marijuana, second offense (or greater). We are not including any case where there were other charges involved. Third, the criminal histories here are limited to those found in CCAP, the state’s online court database.
District Attorney John Chisholm noted in an interview that the numbers of second possession marijuana cases issued in Milwaukee County has dropped dramatically over the years. He said his office generally does not charge second offense marijuana possession as a felony unless the offender has a previous felony or there is some other circumstance, such as having a gun when the marijuana is found. Evidence that drug distribution is involved also can influence a decision.
Chisholm and Deputy District Attorney Jeffrey Altenburg said the district attorney’s office has carefully reviewed its track record in charging second possession cases.
“We work very hard not to charge someone with their first felony offense with a second possession” unless there is some indication of violence, Altenburg said.
Chisholm said if there was one felony charge he could eliminate from the statute books, it would be the second offense marijuana felony.
“I don’t think it adds too much any more,” he said.
The District Attorney’s office, though, works with the cases it gets from local law enforcement agencies. And after all the arrests, referrals and charges are issued, the result is a series of charges originating in a very heavily over-represented area of one city, against a heavily over-represented race and a heavily over-represented gender: black males in the City of Milwaukee.
1: 2300 block of W. North Ave. – 2016 – Traffic stop of a 23-year-old African-American male driver. Police said he ran a stop sign and his car’s windows were heavily tinted. Defendant was searched, and police found 15.85 grams (0.56 ounces) of marijuana. Sentenced by Circuit Judge Timothy Witkowiak to 18 months probation and 100 hours of community services. Six months in the House of Correction was stayed. The defendant was previously convicted of two misdemeanors, marijuana possession and carrying a concealed weapon.
2: 3000 block of W. Locust St. – 2016 – Police stopped the car for having no plates. Driver was 24-year-old African-American man. Police smelled pot and found 10.74 grams (0.38 ounces). Defendant had a concealed carry permit and a handgun, which turned out to be stolen. Sentenced by Circuit Judge Carolina Stark to two years probation. Stayed six months in the House of Correction with credit for three days time served. Eligible for expunction. Previously convicted of two misdemeanors, retail theft and possession of marijuana.
3: 2100 block of N. 38th St. – 2016 – Police stopped car driven by 23-year-old African-American man for unspecified reasons and smelled marijuana. Found four bags holding a total of 47.96 grams (1.69 ounces). Sentenced by Circuit Judge Timothy Witkowiak to 20 days in the House of Correction with credit for nine days served. Defendant previously was convicted of manufacturing with intent to deliver marijuana and possession with intent to deliver marijuana, both felonies. He was also convicted twice on misdemeanor counts of carrying a concealed weapon.
4: 2600 block of W. State St. – 2016 – Police observe a 22-year-old African-American man get into a parked car and conducted a traffic stop because of a previous municipal traffic citation two days earlier. Officers said the man, seated in the driver’s seat, had a “clenched fist” when they approached the car. They asked him to leave the car and he did not immediately comply. Police saw he had a paper cup with chicken wings in it on his lap. The man agreed to leave the car and put the cup of wings in the center armrest. The officers arrested him, put him in cuffs and then in the rear of their squad car. The police went back to the car, and looked in the cup under the chicken wings, where they found a plastic bag of marijuana. Defense lawyer Vincent Paul Guimont challenges the chicken wing search: “The officers simply saw a cup of chicken wings. The fact that the officer can see a cup of chicken wings does not provide probably cause to believe that contraband exists inside the car.” Circuit Judge Carolina Stark dismisses the case on the prosecutor’s motion. The defendant previously was convicted of a misdemeanor count of possession of THC.
5. I-43 and North Ave. – 2016 – Milwaukee County Sheriff‘s deputies, responding to an accident, found a car driven by a 41-year-old African-American man facing the wrong way. The defendant eventually was arrested for operating while intoxicated. Deputy searched the car, and found 21 corner cuts containing a total of 21.8 grams (0.77 ounces). Sentenced by Circuit Judge Carolina Stark to one year probation with trauma-informed mental health evaluation recommended and absolute sobriety ordered. Stayed sentence of six months in the House of Correction with credit of four days time served. The defendant previously was convicted in two cases of felony possession of marijuana.
6. 5500 block of S. Packard Ave., Cudahy – 2016 – Police stopped car driven by a 22-year-old Hispanic man because he was not wearing a seat belt. As the man exited the car, a digital scale fell to the ground. Police detected the strong odor of unburned marijuana. A search of the car turned up 14 grams (0.49 ounces) of marijuana in a Mason jar. The defendant also had an unloaded handgun in his car and a magazine of hollow-points in his front pocket. He previously was convicted of misdemeanor possession of marijuana.
7. S. 60th St. and W. College Ave., Greendale – 2016 – Police stopped a car driven by a 21-year-old Hispanic man. While no reason for the stop was given in the criminal complaint, another court document indicated he was stopped for not wearing a seat belt. Officers found four bags of marijuana totaling 31.2 grams (1.1 ounces) in backpack. “There was also apparent butane hash wax in there, as well,” the complaint said. “It was quite a selection.” Sentenced by Circuit Judge Carolina Stark to 90 days in the House of Correction, with credit for 90 days time served. Defendant previously convicted of possession with intent to deliver marijuana.
8. 4600 W. Capitol Dr. (see top map) – 2016 – Car driven by a 30-year-old African-American man passed a squad. The squad pulled behind the car and an officer observed the driver was clearly not wearing a seat belt. The officer activated the squad’s lights, and it took two full city blocks for the subject car to pull over. The officer smelled fresh marijuana; found 3.13 grams (0.11 ounce) of fresh marijuana. Sentenced by Circuit Judge David Swanson on Aug. 19, 2016 to one year probation with multiple conditions. 180 days in House of Correction imposed and stayed. 90 days imposed and stayed for use a the discretion of the probation agent. In October, Swanson ordered the defendant to serve 90 days’ straight time for violating the conditions of his probation. Defendant previously convicted four times of possession of marijuana second offense or greater and a variety of other crimes.
9. 2100 block of N. 38th St. – 2016 – Police saw three men playing dice. When one of the men, a 34-year-old African-American man saw the squad, he got up and started walking away, toward a car. When he reached it, he dropped something. It was a bag containing baggies of marijuana, a total of 9.38 grams (0.33 ounces). Placed on a deferred prosecution program by Circuit Judge Timothy Witkowiak; charged dismissed upon successful completion. Defendant was previously convicted of two charges felony possession of marijuana with intent to deliver; misdemeanor possession of marijuana and felony bail jumping; and felony cocaine possession with intent to deliver.
10. 4300 block of W. Fond du Lac – 2016 – Police saw an unoccupied car parked at a gas pump and a 24-year-old African-American man walking into the store. A bicycle officer rolls by and sees a plastic baggie of pot in the center console of the car. The car was searched and police found a total of 23.87 grams (0.84 ounces) of marijuana. Defense lawyer Danielle Louise Shelton filed a motion alleging illegal, stop, arrest and search. Circuit Judge Timothy Witkowiak dismissed the charge on the state’s motion. The defendant previously was convicted of possession of marijuana second offense or greater, possession of marijuana with intent to deliver, and possession of narcotics.
11. 3300 block of N. 38th St. – 2016 – Bike officers saw car, motor running, parked in an alley. Once they got near the car, they smelled marijuana and saw a 23-year-old African-American man smoking a blunt. A search of the car turned about more pot, a total of 2.49 grams (0.09 ounces). The officers also saw a tan substance they believed to be heroin in the driver’s side door handle. The man said it was not his. Sentenced by Circuit Judge Timothy Witkowiak to two years probation. Sentence of seven months in the House of Correction stayed. Defendant previously was convicted of felon in possession of a firearm, felony driving a vehicle without the owner’s consent, and possession of marijuana with intent to deliver.
12. 4200 block of W. Auer Ave. – 2016 – Officers saw a car with no front plate that failed to signal at a turn. They hit the squad lights and two baggies came “flying our of passenger side window while the vehicle took a block and a half to finally come to a stop.” Total amount recovered was 29.75 grams (1.0 ounce). The 29-year-old African-American male defendant was sentenced by Circuit Judge Daniel F. Konkol to six months in the House of Correction, concurrent with prison sentence. Defendant previously was convicted of felony possession of marijuana second offense or greater and misdemeanor possession of marijuana.
14. 6400 block of W. Silver Spring Dr. – 2016 – Police saw car with no plates. Hit squad lights and saw defendant, a 24-year-old African-American man, bend down. The car stopped. Police approached and smelled marijuana. Found 23.7 grams (0.84 ounces). Defendant also had $884 in cash. Sentenced by Circuit Judge Timothy Witkowiak to two years probation, with five days at the House. Sentence of one year at the House stayed. Defendant was previously convicted of possession of marijuana second offense or greater, misdemeanor possession of marijuana, and misdemeanor resisting or obstructing an officer.
15. 1600 block of S. 7th St. – 2016 – Police smelled pot as they approached the car to interview a 24-year-old African-American man. They found three baggies containing marijuana, and another as the man was being booked, for a total of 28.46 grams (one ounce). Sentenced by Circuit Judge Janet Protasiewicz to 90 days in the House of Correction with Huber privileges. Defendant previously was convicted of felony possession of marijuana with intent to deliver, misdemeanor disorderly conduct and misdemeanor intimidating a victim or dissuading reporting.
16. 900 block of S. Layton Blvd. – 2016 – Traffic stop of car with suspended plates. Officers smelled marijuana and asked occupants to leave the car. A gallon-size baggie slid out from under the 20-year-old African-American male driver’s thigh and fell to the ground. Recovered a total of 84.1 grams (three ounces). Sentenced by Circuit Judge Carolina Stark to six months in the House of Correction with credit for 71 days time served. Defendant previously was convicted of misdemeanor carrying a concealed weapon and felony possession with intent to deliver designer drugs.
17. 2600 block of W. Fond du Lac Ave. – 2016 – Traffic stop of a car because it had excessive window tint and the 27-year-old African-American man driving the car was not wearing a seat belt. Police smelled marijuana, and found a baggie with 3.3 grams 0.12 ounces). Defendant sentenced by Circuit Judge Carolina Stark to six days in the House of Correction with credit for three days served. The defendant previously was convicted of felony manufacturing / delivery of cocaine.
18. 5200 block of N. 62nd St. – 2016 – Police stopped car carrying a 30-year-old African-American man for a seat belt violation. The officer immediately smelled burned marijuana and saw a cigarette in the middle console cup holder. Also saw a Hi-Point 9 mm gun, which was loaded. Recovered 14.4 grams (0.51 ounces) of marijuana. Sentenced by Circuit Judge Timothy Witkowiak to five months in the House of Correction, stayed; two years probation conditional on 10 days in the House with credit for three days served. Defendant previously was convicted twice of misdemeanor marijuana possession and once of misdemeanor disorderly conduct.
19.9100 block of W. Silver Spring Dr. – 2016 – Officer smelled fresh marijuana during a traffic stop of a 44-year-old African-American driver. Police found 0.8 grams (0.03 ounces). Sentenced by Circuit Judge David Swanson to 60 days in the House of Correction concurrent with parole / probation revocation. Defendant previously was convicted of felony possession of marijuana second offense or greater and felony manufacture / intent to deliver marijuana.
20. 10900 block of W. Courtland Ave., Wauwatosa – 2016 – Police stopped a car driven by a 40-year-old African-American man because he was driving the wrong way down Highway 100 (which was one-way due to construction). The officer smelled marijuana and searched the vehicle. Police found a bag, labelled “smelly proof,” that contained marijuana. At the station, more marijuana was found in bags in the defendant’s left shoe. The pot totaled 45.6 grams (1.6 ounces). Circuit Judge Carolina Stark sentenced the defendant to 18 months probation and stayed an eight month House of Correction sentence. Defendant previously was convicted twoice of possession of marijuana with intent to deliver, fleeing an officer, three counts of misdemeanor failure to support a child, felony possession of marijuana second offense or greater, felony tax stamp violation, felony possession of marijuana, and felony maintaining a drug place.
Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.