Metro Milwaukee got a surprise last year when the crumbling Courthouse Annex was finally torn down as part of the massive, inconvenient, but ultimately successful Marquette Interchange freeway project in downtown Milwaukee. Suddenly, clearly visible in the bright afternoon sun was the entire west side of the Courthouse itself. The clear view of the beautiful, historic and still very functional building is now one of the highlights of a trip through in Interchange. Before the Annex was reduced to rubble (and cleverly ground up and recycled at the site to make the new pavement below), most metro residents probably didn’t even know the Courthouse was there.
Poor and black residents of Milwaukee, though, have always known where the Courthouse was and are all too familiar with the inside of it. They have been to the 4th floor, in small claims court, to face evictions and utility collections. They have been to the 7th floor in family and paternity courts. And on the 5th and 6th floors – the criminal misdemeanor courts.
A little background: A violation of the law is a crime if you can go to jail as a consequence. In Wisconsin, a crime is a misdemeanor if the maximum penalty includes less than 1 year in a county jail or, in Milwaukee, the House of Correction; it is a felony if the maximum penalty is a year or more in the state prison system. This year to date, there have been at least 7,000 misdemeanors, 4,500 traffic misdemeanors and 4,000 felonies filed in Milwaukee County.
Common misdemeanors include shoplifting, criminal damage to property, disorderly conduct (DC), battery, drug possession, carrying a concealed weapon (CCW) and the like. A large portion of misdemeanors in Milwaukee are in domestic violence court – battery, DC, violation of restraining orders, etc. Criminal traffic misdemeanors are for such offenses as operating after revocation (OAR) and operating while intoxicated (2nd - 4th offense – the first is not criminal; the 5th and subsequent is a felony).
Most of these cases appear or should be race-neutral. However, take a walk up on the 4th or 5th floor any weekday and you will find hallways and courtrooms full of African-American defendants and their attorneys (I'm there almost every morning -- stop and say hi!). Looking last year in the courtroom of Judge John Siefert, assigned at that time only to criminal traffic OARs, you would find almost a hundred African-Americans there every morning. The OAR law has since been changed, making less of those cases criminal. [Judge Siefert would not forgive me if I didn't also mention his efforts to get people licensed.] But the sheer volume of blacks in that courtroom for this common but relatively petty charge in the past several years was remarkable.
Let’s play a game of Rumsfeld and answer our own questions for a moment: Do blacks drive while revoked, shoplift, damage property, commit battery, possess drugs more than white people? Kinda doubt it. Are white people less likely to be caught doing those things? Certainly. If caught, are whites more likely to be handled differently, with perhaps municipal tickets or perhaps just sent on home? Kinda think so. Can there be reliable statistics that show how or why police make these on-the-street decisions? No. Are blacks more likely to be stopped as drivers or passengers in cars because of real or imaginary equipment violations and found revoked, with drugs, guns or warrants for unpaid fines? Well, there’s even a phrase for it – it’s called Driving While Black and it’s for real.
Misdemeanors are called that for a reason, but let take one hypothetic example drenched in reality (i.e.: I have seen everything in this scenario in various cases) and see how an African-American might (and most likely will) be treated in the course of a case.
Let’s say a black woman tries to steal baby clothes at a local Wal-Mart. First of all, will she be caught? Well, what sort of scrutiny do you think black people get in those kind of stores, especially in certain (white) parts of town? While the store rent-a-cops are following around every black woman with a baby in a stroller, what are the chances that a woman of another persuasion is getting away with the same thing one aisle over? Zero? I don’t think so.
Once stopped by store security, she is taken to a room to wait for the police. When the police get there, what do you think happens? If she’s white, does she get a warning or, at most, a ticket? If black, what is the likelihood that she will be released, ticket or no, without being arrested and taken to the police station? Probably not. Will the police charge her with the crime of retail theft? Will the store insist on it?
Assuming a criminal charge, she will be brought to the station, printed and booked. If white, will she be given a court date and released? If black? Let’s say the arrest happens on a Saturday. If she is not released, she will probably be quoted a bail of $300 or so to get out. Chances are, the poor woman will not or can not post (less likely to have cash or a credit card on her; contacting family members can be difficult, and they often don’t have the cash either) and will have to wait until intake court on Monday. Two nights in jail so far, while a similar white woman is probably at home caring for her children.
Appearing in intake court, she is not in the clothes she is arrested in. She sits before the court commissioner after two rough nights in jail in impersonal, humiliating jail clothes. If she has priors, those will be listed – god help her if she has a case pending at the time she is picked up for another theft. She might get a signature bond and be released or she might have to post what everyone in the courtroom will consider a "low" cash bail of $100. For many poor women, it might as well be a million.
To this point, a white woman in the same situation will have various chances to avoid being locked up that the black woman might not enjoy. This is especially the case if the white woman has moderate resources – even "low" bail will keep the poorest among us locked up while others walk free while their case is pending. Especially on misdemeanors, black or white, pre-trial incarceration is the exclusive predicament of the poor.
She meets with her lawyer and maybe she has a defense. Maybe she paid for some items and forgot the others were in the bottom of the stroller...whatever. If she’s locked up and can’t make bail, she could ask for a speedy trial within 60 days. 60 days! Most people in that case will just decide to get it over with – another of many who profess their innocence, but plead guilty out of practical necessity. And, if it goes to trial, will the jury believe her over the security guard. Will they admit the possibility of an honest mistake by the poor black woman?
If it gets to sentencing, if it’s a first or second offense, she’s already served more time than anyone would if released while the case was pending. If she has priors and has had jail imposed before, the judge may decide she has to get more jail this time because she didn't "get it" last time. 10 days turns to 30 turns to 60. If she has three or more misdemeanors, the state can charge her as a "habitual offender", which means she can get up to 2 year in prison for shoplifting baby clothes. Prison. For some baby clothes. Believe it or not, there are people in the state prisons right now for misdemeanors. Retail thefts. Baby clothes.
These are the "little" cases, but they set the tone for the rest of the system. There is no one in the inner city who doesn’t know someone who has been affected by the sometimes heavy-handed prosecution and court process of petty crime. The sense of injustice permeates the community while they wait for their mothers, father, sons or daughters to come home after "short" stints in the slammer for unpaid fines, small amounts of marijuana, a loud outburst on a street corner, or a revoked licence discovered while driving with a "broken taillight".
Everyone understands the need to treat serious felonies seriously. But the entire system suffers a credibility and legitimacy problem when the small cases provide a constant background noise for only one part of the city.