Racial Disparity in U.S. Attorney’s Cases

According to federal court filings, federal prosecutors send staff members to the Milwaukee County District Attorney’s office to look through gun cases to determine which ones should go to the tougher, federal system.

Milwaukee County, home to the largest population of African-Americans in the state, is the only one of 28 counties in the Eastern District of Wisconsin to get that personal touch from the U.S. government, according to the filings by Assistant Federal Defender Joshua D. Uller. “This practice results in a disproportionately large share of African-Americans getting charged with certain gun crimes,” he said.

From January 2017 through June 2018, nearly 50 percent of the people charged with drug-trafficking offenses in the Eastern District were black, though the district is only 10 percent African-American. Whites accounted for just 23 percent of people charged with drug trafficking, though the district is 84 percent white, according to Uller’s filings.

Thirty-five of the drug trafficking defendants were also charged with possessing a firearm in furtherance of the crime. “Twenty-eight people, or 80 percent, of those defendants were African-American and only three, or nine percent, were Caucasian,” Uller said.

The firearm charge carries a mandatory minimum of five years in prison, which must be served consecutively to any other sentence. And 100 percent of the 10 cases alleging possessing a firearm in furtherance of a marijuana-trafficking crime were brought against minorities – nine were filed against African-American defendants originally arrested by Milwaukee police. (The 10th minority was an Arab, though Arabs are legally considered Caucasian.)

Uller says the charging disparity demonstrates selective prosecution and enforcement. He is asking a federal judge to allow the Federal Defender’s Office to examine materials from the U.S. Attorney’s Office that provide more evidence about how cases are selected for federal prosecution.

Prosecutors deny any selective prosecution or enforcement and U.S. Magistrate Judge Nancy Joseph has recommended Uller be denied access to the materials he wants.

Uller’s request stems from the case of Jacob L. Maclin, who was arrested in March 2018 after his vehicle was searched during a traffic stop. Police found a gun and about 50 grams (1.8 ounces) of marijuana, which Maclin said he planned to share with friends, according to the defense filing. Maclin also was carrying $2,440 in small bills, according to court documents.

Police made the traffic stop after they saw Maclin engage in what they believed was a drug transaction. Maclin had previous convictions – robbery with use of force in 1999, manufacturing and delivering cocaine, and felon in possession of a firearm in 2003.

Maclin was one of the 10 minorities charged with possession of a firearm in furtherance of marijuana trafficking from January 2017 through June 2018. “During that same time period, when 100 percent of gun possession in furtherance of marijuana-trafficking charges were brought against minorities, there were at least 42 cases that involved Caucasian people who could have faced the same federal charge, but did not,” Uller wrote in a court filing. Only one person faced any federal charges at all and the rest stayed in state court.

“This disparity raises serious questions about whether local, state and federal law enforcement agencies engage in racial discrimination in determining which individuals to refer to the United States Attorney’s Office for federal prosecution or whether the Department of Justice engages in racial discrimination in its charging decisions,” Uller wrote. By focusing on Milwaukee County, Uller argued, the U.S. Attorney’s Office was knowingly focusing on the area with the largest African-American population and on that population.

Federal prosecutors argue that the special attention paid to Milwaukee is due to the city’s crime rate, which is much higher than other areas of the Eastern District. They say there is no selective enforcement or prosecution, and that the discovery request should be denied.

“The U.S. Attorney’s Office does not just take whatever cases it wants,” Assistant U.S. Attorney Jonathan H. Koenig and Lisa A. Wesley wrote. “For a variety of reasons, district attorneys’ offices throughout the Eastern District of Wisconsin might want to keep a particular gun case – or all of their gun cases – for prosecution in state court. And unlike the district attorney’s office in Milwaukee, many of the prosecutor’s offices elsewhere in the district have the resources, time and willingness to handle gun cases on their own.”

Uller also selected an arbitrary 18-month time frame that failed to show that at least one Caucasian person was prosecuted for gun possession in furtherance of marijuana trafficking after June 2018. That man, Joshua Klein, is charged with possessing a firearm in furtherance of marijuana and heroin trafficking.

“Merely showing that 42 White people were allegedly involved in marijuana dealing and had a weapon is not enough,” Koenig and Wesley said.

“There are a myriad factors that juries, and thus prosecutors, must look at to determine whether a gun was used ‘in furtherance’ of drug trafficking, such as the accessibility of the firearm, type of weapon, whether or not the weapon is stolen, status of the possession (legitimate or illegal), whether the gun is loaded, its proximity to drugs or drug profits, and the time and circumstances under which the gun is found,” Wesley and Koenig said.

So far, the prosecutors’ arguments are winning. Joseph wrote in her decision denying Uller’s discovery request: “The motion certainly raises important policy concerns; however, to be entitled to discovery on his selective prosecution claim, Maclin must make some showing of discriminatory intent beyond disparate racial impact. He must show racially discriminatory motive or purpose.”

Uller also failed to show enough similarity between the cases where federal charges were issued and the cases where they were not.

Maclin did not meet his burden on his related selective enforcement claim either, she said.

Uller is appealing the ruling to U.S. District Judge Pamela Pepper.

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.