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Despite decriminalization, Chicago’s grass gap persists

It took statewide decriminalization to get Chicago cops to stop arresting mostly black Chicagoans for possession of small amounts of weed.

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PAUL JOHN HIGGINS
  • Paul John Higgins

Late last July, on the day Governor Bruce Rauner signed into law a statewide decriminalization measure barring cops from criminally charging individuals caught with small amounts of marijuana, a 22-year-old African-American man was arrested by Chicago police officers on the city's west side after he told them he had about $10 worth of weed on him.

The officers were on patrol in the 4200 block of West Madison just before 11 PM July 29 when they spotted two men "engage in what appeared to be a hand to hand transaction," according to their report. They knew the corner of Madison and South Keeler was a "designated narcotics loitering hot spot," the officers wrote. An officer asked 22-year-old Leshawn T., one of the two men on the corner, if he was carrying any narcotics or illegal substances. Leshawn told the officer that he had one bag of weed—two grams' worth, police wrote. He was arrested and charged with misdemeanor possession of 2.5 grams or less, and for failure to appear in court for a prior city citation for marijuana possession.

The charges against Leshawn were later dropped, according to court records. (We weren't able to reach him for comment, and are thus using his first name and last initial only.)

Roughly five years before Leshawn was picked up for two grams of weed, Chicago decriminalized possession of small amounts of marijuana. But it took a statewide bill approved last summer to actually stop Chicago police officers from arresting people caught with amounts ranging from a little more than half a gram of weed to ten grams, or about a third of an ounce. The legislation, which became effective the same day Leshawn was arrested, prohibits officers from charging someone caught with ten grams or less with misdemeanor possession. Such offenses are now considered civil violations subject to a minimum fine of $100 and a maximum fine of $200.

Chicago police could have been issuing tickets for small amounts of marijuana possession for years, but instead, according to data obtained by the Reader, chose to arrest thousands of people, mostly African-Americans.

About 70 percent of all marijuana possession arrests last year were for ten grams or less. In the first seven months of 2016, before the statewide decriminalization bill took effect, more than 3,300 people were charged for possessing small amounts of weed. While this figure represents a 74 percent decrease from the approximately 12,800 people who were apprehended in 2014 and an 85 percent decrease from the more than 22,000 people arrested in 2010 (before Chicago passed the decriminalization ordinance), the racial disparity among those arrested for pot hasn't budged in the last seven years.

Even with the overall drop in arrests, people of color continue to be disproportionately affected. Studies clearly show whites and blacks consume marijuana at similar rates, but African-Americans are far more likely to be arrested and charged for low-level pot possession than whites. The American Civil Liberties Union published a report in 2013 that analyzed marijuana possession arrest data nationwide and found that marijuana use among blacks and whites was roughly equal, with more whites age 18 to 25 saying they'd used marijuana in the last 12 months. But African-Americans, the report concluded, were nearly four times more likely to be arrested for pot possession. In Cook County specifically, the report found that in 2010 African-Americans were about seven times more likely to get arrested for weed possession than whites.

Last year, 78 percent of those arrested for small amounts of weed were black, 17 percent were Hispanic, and only 4 percent were white—virtually the same percentages identified in Reader investigations from 2014 and 2011.

But just 59 people were arrested and charged with misdemeanor possession between when the law took effect and the end of 2016—a dramatic drop that could signal the end of possession arrests in Chicago. Even within this population, however, about 80 percent were black.

Of course, the fact that the state barred arrests for possession under ten grams raises the question of why anyone was arrested on these charges on or after July 29. Chicago police didn't respond to a question asking how this could be possible given the current legislation. The mayor's office also didn't respond to requests for comment before press time.

In addition, Chicago cops issued only 2,776 tickets for pot possession last year, according to CPD data the Reader obtained. That's a 31 percent decrease from the more than 4,000 marijuana citations issued in 2014. We also requested CPD data about the racial breakdown of the individuals the department ticketed for possession last year, but according to CPD, the city's Department of Administrative Hearings doesn't keep track of race for possession citations.

The number of tickets cops wrote for possession also dropped off following statewide decriminalization. Only about 400 tickets were issued between July 29—when the decriminalization law took effect—and the end of last year, compared to the 2,340 tickets issued in the first seven months of last year. CPD didn't respond to a question asking why so few tickets were issued last year, particularly in the latter five months of the year.

Taken all together, this all suggests that these arrests are finally ceasing. But why has it taken so long?

Stark racial disparity in arrests is one of the reasons state lawmakers pushed for decriminalization last year, says Democratic state senator Heather Steans, who sponsored the bill.

"We knew how discriminatory the police can be in making these arrests," she says.

But Chicago politicians have been apprised of the so-called "grass gap" for years—it was one of the reasons the ordinance that gave police the option to ticket people instead of arrest them passed in the City Council in a vote of 43-3 in 2012.

County officials have also pushed Chicago cops to stop arresting people caught with small amounts of weed. Cook County Board president Toni Preckwinkle told the Reader in 2011 that she had asked former CPD superintendent Garry McCarthy to "stop arresting people for small amounts of drugs, because you're wasting our time."

When presented with the arrest figures from last year, spokesman Frank Shuftan wrote that "as stated previously, [President Preckwinkle] believes that arrests for small amounts of marijuana are a poor use of public safety resources. She has publicly stated so on a number of occasions, and will continue to advocate for reforms in the criminal justice arena."

The thousands of possession arrests appear even more absurd in light of former Cook County state's attorney Anita Alvarez announcement back in 2015 that her office would stop prosecuting people busted for the first or second time with 30 grams or less of weed.

The Cook County state's attorney's office says it's continuing this practice under Alvarez's successor, Kim Foxx. Foxx was elected to the office after running on a platform of criminal justice reform, including keeping fewer nonviolent offenders behind bars.

"The Office of the Cook County State's Attorney is committed to seeking justice, and to using its limited resources most effectively to protect public safety. Prosecution of cases for possession of misdemeanor amounts of marijuana does not serve those goals, and the Office of the Cook County State's Attorney continues to decline to prosecute possession of marijuana under 30 grams," reads a statement issued by Foxx's office. "While the State's Attorney's office cannot prevent officers from making arrests, it was and remains the policy of the office to decline to prosecute those cases."


—Kathie Kane-Willis, Chicago Urban League director of policy and advocacy


This may be only somewhat reassuring to criminal justice reform advocates like Kathie Kane-Willis, director of policy and advocacy for the Chicago Urban League. "It's great if you pass an ordinance," Kane-Willis says, "but it doesn't mean squat if you don't implement and use it."

Kane-Willis was one of several authors of a 2014 study conducted by Roosevelt University's Illinois Drug Policy Consortium that found that the implementation of municipal ticketing ordinances across the state was "uneven and incomplete."

She also takes issue with the term "decriminalized" to describe what Chicago's elected officials did when they passed the ticketing ordinance. To really decriminalize something, Kane-Willis says, you can't give cops the option of arresting people for it.

The Reader reported in 2014 that CPD officers rarely issued tickets for possession. Between August 2012 and February 2014, CPD made 20,844 arrests for misdemeanor possession and issued just 1,725 tickets.

Following the implementation of the ordinance, arrests in Chicago decreased by just 21 percent, and 93 percent of misdemeanor possession violations resulted in arrests while only 7 percent produced tickets, according to the 2014 consortium study. Arrests for low-level possession in Evanston, by contrast, dropped 46 percent following passage of that city's ticketing law, suggesting that, at least theoretically, the new policy could have been more successfully implemented in Chicago too.

For the ordinance to have done what it was intended to do—focus police resources and time on more serious crimes and erode racial disparities in marijuana possession busts—"You had to have everybody behind it and pushing and really working to make clear what the orders were to police," Kane-Willis says.

The failure of the ordinance to fulfill its purpose is something CPD has to answer for, she says. CPD didn't respond to questions asking why so many people were arrested when they could have been ticketed, or why the racial disparity persists.

But Chicago police officer Kevin Graham, a 22-year veteran of CPD, says the reason cops choose to arrest people instead of ticket them is because it's easier. Just last week Graham was elected president of the Fraternal Order of Police Lodge 7, the local union that represents Chicago cops.

Ticketing someone for low-level marijuana possession "requires a number of steps," including a field test to determine whether the substance is actually marijuana, he says.

"If you have an arrest, you send the marijuana to the lab to be tested," Graham says. "It's more cumbersome to simply write the ticket, even though I think their idea was to make [the process] shorter."

Graham declined to answer any further questions, citing a lack of time.

But Graham's predecessor, former FOP president Dean Angelo Sr., comes at the issue from a different perspective, saying there are "so many variables" that play into an officer's decision to arrest rather than cite that it would be "weak" to speculate on what CPD officers' rationale was for charging individuals with misdemeanor possession rather than ticketing them without scrutinizing each and every police report.

But Jim Gierach, a longtime anti-drug-prohibition advocate and former board member of Law Enforcement Against Prohibition, says the country's war on drugs also provides economic incentives to lock people up on possession charges. Police officers reap the benefits of arresting folks for pot possession in overtime pay when they go to court in their off-time to follow up on cases, he says, and officers who make frequent arrests may also benefit in the form of promotions. Additionally, as the Reader reported in a previous investigation, CPD has since 2009 taken in tens of millions of dollars via civil forfeiture, a process that lets police and prosecutors keep cash, vehicles, and other items seized from people suspected of having connections to the drug trade even if they haven't been convicted of a crime.

2016 Chicago arrests for possession of marijuana under ten grams

marijuanaarrests.jpg
PAUL JOHN HIGGINS
  • Paul John Higgins

If there's no incentive to ticket—or if it's more "cumbersome," as Graham asserts—and there are economic incentives to arrest, police officers will likely do the latter, says Kane-Willis.

Angelo says that, contrary to Graham's assertion, arrests take more time than issuing tickets. Officers also receive overtime pay for showing up in court on their off days, but he says "they're not going to get promoted for locking people up for weed." He disagrees that cops would continue to arrest people for small amounts of marijuana simply because of economic incentives. CPD didn't comment on whether economic incentives may have played a role in the decision to arrest rather than ticket.

Problematically, of course, the time police officers spend locking people up or even ticketing them for weed is also time lost pursuing other criminal offenses. Both McCarthy and Mayor Rahm Emanuel threw their support behind the city's ticketing ordinance in 2012, saying every weed bust cost officers four hours of police time that could be better spent tackling more serious crimes—like gun violence.

More than 780 people were shot and killed in Chicago last year—the highest death toll since 1996—yet, with each arrest estimated to take four hours, police spent at least 13,000 hours arresting people for small amounts of marijuana. Couldn't that time have been better spent tackling violent crime?

"If you think decriminalizing something is going to magically increase manpower and the murder rate is going to be affected by that decriminalization, that's connecting the dots from here to Mars," says Angelo, who also says the department is "down a couple thousand people." Chicago Mayor Rahm Emanuel has pledged, however, to hire 1,000 more cops over the next two years, and CPD has an annual budget of about $1.5 billion—the largest of any city agency.

The real reason murder rates have increased so much, Angelo argues, is because the city mandates police do something called an Investigatory Stop Report. The reports are part of an agreement reached between CPD and the ACLU of Illinois in 2015 that was intended to reform stop-and-frisk practices and protect against unreasonable searches and seizures. According to the ACLU, Chicago police conducted more than 250,000 stops in the summer of 2014 that didn't result in an arrest, and 72 percent of those stopped were black, even though African-Americans make up only about a third of the city's population.

Angelo, who was invited last month to Washington, D.C., to meet with members of the Trump administration, says he told Attorney General Jeff Sessions that these mandated reports "directly caused" the uptick in the city's homicide rate. As a result of the agreement with the ACLU, he says, street stops "dropped by tens of thousands."

Sessions, a staunch opponent of marijuana legalization who has said "good people don't smoke marijuana," recently hinted at a crackdown on states where weed is legal and has also said the benefits of medical marijuana may be overhyped.

But a report published in January by the University of Chicago's Crime Lab that examined the increase in gun violence in the city last year indicates that while street stops did decline sharply in 2016, there's not enough evidence to draw a clear conclusion that the drop led to a rise in shootings. New York City, the report notes, experienced a similar decline in street stops three years ago with no subsequent rise in gun violence.

When asked if the precipitous drop in street stops may have also led to a decrease in pot possession busts since 2014, Angelo found the correlation plausible, saying "I could connect that dot."

Racial disparities between arrest rates is unfortunately a historical phenomenon. That they have persisted through the years doesn't surprise Kane-Willis.

"I feel like 78 percent," Kane-Willis says, considering the racial disparity, "it's never changed. It's never changed. It's not surprising to me these arrests were predominantly African-Americans and very few whites. . . . That's the pattern we have seen in this data for decades." People of color have been disproportionately targeted and affected by the war on drugs and mass incarceration dating back to the Rockefeller mandatory minimum sentencing laws of the early 70s through the Reagan 80s and the "tough-on-crime" Clinton 90s.

But Angelo says the present disparities stem from where the arrests occurred. Most of the people charged with misdemeanor possession last year were apprehended on the city's south and west sides, in neighborhoods that are predominantly populated by African-Americans.

According to police data, 40 people, including Leshawn T., were arrested last year on charges of low-level marijuana possession on one city block alone—the 4200 block of Madison. And another 22 people were arrested right around the corner, on a small strip of North Keeler between West Washington and Madison.

Madison covers portions of the 11th and 15th police districts, which Angelo calls "two of the busiest, most violent districts in this city," ones where officers are "overdeployed" to protect the city's law-abiding residents.

"The areas that are populated by people we would consider minority status are the same areas we are getting the most shootings and the most murders and the most gun arrests and the most narcotic arrests, so you can look at it, and people splice it, that the police are locking up people of color, are arresting more people of color for marijuana," he says. "The purpose of the deployment is to keep a lid [on crime] and protect those families that are stuck socioeconomically in these environments because they don't have the wherewithal to relocate."

With more officers assigned to these areas, it's not surprising to see more arrests in those locations for every kind of drug, not just weed, Angelo says.

"More minorities are being arrested for heroin more than Caucasians—I'd imagine it might be the same," he says. "Why not legalize heroin too? When does it stop? If people do [legalize heroin], we won't lock people up for that either."


—Incoming FOP president Kevin Graham


Of course, analogizing weed and heroin is a faulty comparison. Heroin is a lethal substance responsible for nearly 15,000 overdose deaths in 2015 alone, according to the Centers for Disease Control. No one has ever died from a marijuana overdose, the Drug Enforcement Administration notes. A growing body of anecdotal evidence also suggests pot contains valuable medicinal properties, and one study found that access to medical marijuana was correlated with a drop in opioid-related fatalities.

Whatever the cause, systemic racial bias comes with significant individual and societal costs. An arrest for pot possession can hurt someone's chances of getting a job or housing or a student loan. Because African-Americans are disproportionately arrested for this offense, they bear the brunt of the negative consequences that come with incarceration.

And on a societal level, the Reader estimated in 2011 that 28,000 possession arrests and prosecutions had cost Cook County residents at least $70 million. The 2014 consortium study estimated that the cost of each marijuana possession arrest ranged from $1,600 to $7,200. Even at the low end of that spectrum, last year's more than 3,300 misdemeanor possession busts cost taxpayers more than $5 million.

In the past five years, according to county records, Leshawn T. has been arrested a dozen times for possession amounts ranging from a couple grams to about an ounce of pot. In a majority of those cases the charges were dropped or he was released after spending a few days in jail. By the consortium study's estimate, Leshawn's incarceration and prosecution for low-level marijuana possession cost taxpayers between $19,200 and $86,400-a stunning amount for a low-level, nonviolent offender.

Replacing criminal penalties with civil fines would save the state of Illinois $15.1 million in jail and probation costs and bring in more than $9 million in projected ticket revenue, according to a March 2016 analysis by the Illinois Sentencing Policy Advisory Council.

And that doesn't even account for the projected $350 to $700 million the state could raise if it legalized and regulated pot possession, as Steans's bill proposes.

Despite the financial and time costs associated with charging thousands of people for small amounts of weed and the blatant racial disparity in arrest rates, Angelo says he's not personally a fan of the state's move to decriminalize pot or the potential legalization of the drug.

It's not a stretch to think that changing the law to keep people out of prison for low-level nonviolent marijuana offenses would improve their chances of finding employment.

Angelo, however, disagrees: "I don't see those guys high on weed all day applying for too many jobs, do you?"

State senator Steans says it's clear that prohibition isn't working. She says legalization is likely to lead to less crime, not more, by steering consumers away from the underground economy to a state-regulated industry, in addition to mitigating racial inequities in the criminal justice system. A 2014 study found a potential correlation between reductions in assault and murder rates and states that legalized medical marijuana.

Additionally, Steans says, "there's huge tax benefits" and "strong economic development reasons" to legalize weed, as well as reduced incarceration rates and costs and "relief for law enforcement so they can focus on higher-priority issues."

But decriminalization without full legalization may lead to a different form of disparity for the city's African-American population. Although CPD didn't provide racial data for the people it ticketed last year, according to the consortium, those receiving citations for marijuana possession "appeared to be a subset of those arrested."

Nearly a quarter of all citations issued last year for pot possession occurred in the city's Greater Grand Crossing (Third), Austin (15th), and Gresham (Sixth) police districts, which encompass predominantly African-American neighborhoods.

Kane-Willis says she's concerned that even with decriminalization as the law of the land, African-Americans will still be more likely to receive tickets for possession than whites.

Though the state law calls for fines between $100 and $200, the legislation allows municipalities to charge their own fines. Chicagoans caught with pot face fines of between $250 and $500. And Kane-Willis worries that these fines will disparately affect people "in racially concentrated areas of poverty where $200 or $500 is a lot of money."

She's also concerned about the ability to track data around citations, which is already perhaps justified by the city's apparent choice not to track the race of ticket recipients or the address where the citation occurred.

"If we see the number of citations replacing the number of arrests and the people receiving the tickets are predominantly African-Americans, then that shows the same pattern being replicated in the civil system," Kane-Willis says.

Legalization of recreational weed could take the brunt of citations off communities of color by making it legal for adults 21 and older to possess marijuana without the threat of a ticket.

But neither the statewide decriminalization bill nor the proposed legislation to fully legalize marijuana works retroactively—meaning it won't expunge an arrest record for someone who was busted carrying an eighth of weed on July 28 of last year, despite the fact that, had that person been the doing the same thing days later, they shouldn't, according to state law, have been arrested at all.

Chris Lindsey, senior legislative counsel for the Marijuana Policy Project, says the Illinois legislation doesn't "go back and try to right some of the wrongs."

He says it's rare for states, even those that allow recreational marijuana, to expunge the records of individuals arrested for pot possession before legalization.

"The issue with arresting for possession—and while nobody likes getting arrested—the real harm long-term is the record that happens," he says.

Moving forward, he says, we need to create a way for those arrested on charges that are no longer criminal "to overcome what has happened."

"Laws generally don't work retroactively, so it does take an effort on the part of lawmakers to include those type of provisions," Lindsey says.

Of course, reparations for the damage pot prohibition and the broader war on drugs have wreaked on the lives of those jailed for the offense—particularly people of color—feels like a pipe dream given the country's still tenuous relationship with legal weed. But maybe in another year, or whenever the Reader next examines these issues, statewide decriminalization and the filing of legislation to legalize the drug in Illinois will turn out to have had a lasting impact on ending long-standing racial disparities in enforcement. At least, here's hoping.   v

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