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In Alabama, Black People Are 4 Times More Likely Than White People To Be Arrested For Marijuana Possession

A new report details Alabama’s “War on Marijuana” ahead of a key DA election.

A mural in Selma, Alabama, depicts police violence during the Selma to Montgomery civil rights march.
Justin Sullivan/Getty Images

In Alabama, Black People Are 4 Times More Likely Than White People To Be Arrested For Marijuana Possession

A new report details Alabama’s “War on Marijuana” ahead of a key DA election.

Wesley Shelton was dozing off on a park bench in Montgomery County, Alabama, when a police officer approached him in late 2016. The officer asked if he could search the 56-year-old Black man, and found a $10 bag of marijuana. Shelton was brought to jail, charged with a felony, and given a $2,500 bond because he didn’t have a consistent home address. Shelton couldn’t scratch up even the $250 required to post bond. So he sat in jail indefinitely, while prosecutors waited for a drug lab report from the state’s overburdened forensic agency.

For months, Shelton begged for a bond reduction and then just to plead guilty. In one letter to a court clerk, he wrote, “I’m [sic] admit my guilt. I was in possession of marijuana. I’ve written 5 time [sic] asking for a bond reduction. I’ve received not one answer, from the court. … I’ve never in my life feel [sic] so totally helpless, with no end. Help me please.”

After 15 months in jail, authorities finally allowed him to plead guilty to the felony, despite the state’s failure to test the drugs he was accused of possessing.

Shelton is just one of thousands of Black residents who have been harmed by Alabama’s “War on Marijuana,” according to a new report by the Alabama Appleseed Center for Law and Justice and the Southern Poverty Law Center.

The report, released today, found that Black people are four times more likely than white people to be arrested for marijuana possession in Alabama. Examining the 2,351 people arrested for marijuana possession in 2016, the latest year such data was available, the study found that 11 per 10,000 Black people were arrested on such charges, compared to only 2.7 per 10,000 white people. In possession felony cases, like Shelton’s, the researchers also found large disparities: Black people were five times more likely to be arrested than white people.

courtesy of Alabama Appleseed/SPLC

Out of the 20 most common arrest offenses in the state, researchers found that marijuana possession had the biggest disparity. But differences in arrest rates by race were particularly concentrated in a handful of counties across the state, the report found. Of the top 50 law enforcement agencies, ranked by marijuana possession arrest totals, the researchers found that seven police forces were 10 times more likely to arrest Black people.

courtesy of Alabama Appleseed/SPLC

The findings reflect the more intensive policing that Black residents face across the state, Alabama activists told The Appeal. “It’s a direct correlation with what we’re seeing on the ground,” said Carlos Chaverst, a Black Lives Matter activist in Birmingham. “Because we are still in the deep South and the Bible Belt, there’s still overt racism here.”

Beyond jail time, marijuana possession arrests result in numerous collateral consequences for residents, particularly those from Black communities. Those caught can face a six-month driver’s license suspension, lose student loan opportunities, and face stiff court fines and fees. A first-time possession conviction, for example, can lead to a $6,000 court fine.  

The case of Mary Thomas, a 75-year-old Black grandmother and occasional marijuana user, highlighted in the report, illustrates how far a marijuana arrest can spiral. In 2011, Thomas was trying to help her grandson’s friend who needed a place to stay. He gardened for her and they ate meals together. Then one day police walked into her home, found a bag of weed, and arrested her.

Her grandson’s friend turned out to be a confidential informant. During the raid, the cops took $350 from her wallet and coat pocket, claiming the money was evidence of drug dealing, according to the report. They then charged the her with possession other than for “personal use,” a felony. Scared of jail, the grandmother quickly pleaded guilty. But as result of her arrest, she had to spend thousands in legal costs.

A year into her probation, she found herself trapped with $2,000 of court debt. But she struggled to get to her midnight shift at a halfway house because her driver’s license had been suspended as a result of her conviction. At the same time, she developed breast cancer. All these factors drove her to drinking, which resulted in a public intoxication misdemeanor in 2013. After these years of struggle, Thomas’s situation has stabilized somewhat, though it has changed irreparably. She now lives in Tuscaloosa, taking care of her son, who has special needs. She says she has forgiven the man who gave her up to the police.

In the last two decades, the public’s opinions on marijuana legalization have swung significantly. Thirteen states, including neighboring Mississippi, have decriminalized small-scale possession, and nine states and the District of Columbia have legalized recreational use. Yet despite polls showing that many Alabama residents across the political spectrum support legalization, the state’s Republican lawmakers have consistently halted decriminalization efforts.

Unlike in other states, Alabama cities and municipalities lack home rule powers, and cannot enact such changes without approval from the state legislature.

But one set of local officials could drastically slow down the marijuana criminalization cycle: prosecutors. Across the country, from Philadelphia to Houston to St. Louis, prosecutors with reform agendas have stopped or promised to stop pursuing most marijuana possession charges. Advocates hope to add Jefferson County, home to over half a million people in Birmingham and its surrounding communities, to that list.

In November, Jefferson County will elect its next district attorney. The race pits two employees from the Jefferson County district attorney’s office against each other. Mike Anderton, a Republican who was appointed interim district attorney last year, has made clear he wants to continue prosecuting residents for possession, claiming that he will choose to prosecute those cases as long as the state labels such conduct criminal.

“We prosecute those cases that the legislature designates as criminal offenses. If the legislature passes it, like I said before, if they pass it, we’re going to enforce it, we’re going to do it right and we’re going to follow what the law says,” Anderton told a local TV station last week.

Danny Carr, the Democratic DA candidate, has taken a more reform oriented position and has acknowledged the racial disparities in such arrests, but has stopped short of saying publicly that he will decline to prosecute such cases altogether. In a tweet this month, Carr said “it’s hard to imagine that our limited resources should be devoted to jailing individuals for marijuana possession instead of focusing on serious violent crimes.”

Advocates, like the ACLU of Alabama, have cautiously praised  Carr’s comments, and stated that they hope he goes even further, if elected, by choosing to not prosecute those caught possessing drug paraphernalia or one ounce or less of marijuana. In a statement published this week, Dillon Nettles, ACLU of Alabama’s policy analyst, said, “While we appreciate Mr. Carr’s public statement in support of marijuana reform, we also hope to see him continue to clarify how he intends to implement this policy.”

Neither candidate responded to The Appeal’s request for comment on whether they would decline to prosecute marijuana possession cases.

Foregoing such cases could help police and prosecutors better allocate their resources toward more serious crimes, the report notes. In 2016, for example, Alabama police arrested more people for marijuana possession than for robbery, despite the fact that only 1,314 people were arrested for robbery out of 4,557 reported incidents that year.

The researchers also found that these arrests are clogging up the state’s ability to efficiently process forensic evidence in criminal investigations. As of March of this year, Alabama’s Department of Forensic Sciences was juggling roughly 10,000 backlogged marijuana cases and 1,121 forensic biology/DNA cases, which included around 550 “crimes against persons” cases such as homicide, sexual assault, and robbery.

Declining to take on such cases would prevent long-term harm to Alabama residents, like Wesley Shelton, the man who was arrested on a park bench for $10 worth of marijuana. “Right now, in my life, because of that 15 months, I feel as though I’m 10 years behind where I’m supposed to be,” he told the researchers.

Could voting out judges end mass incarceration?

Could voting out judges end mass incarceration?

What you’ll read today

  • Spotlight:  Voting out judges to end mass incarceration

  • Is Orange County DA candidate sending mixed signals on jail phone company’s contract?

  • Charlotte district attorney says he won’t stop prosecuting panhandlers

  • Former probation commissioners call for an end to marijuana testing

  • Michigan police place a 12-year-old in handcuffs

  • Allegation that Virginia prison terminated a woman’s visit because she was wearing a tampon

  • Advocates call for a Queens DA who won’t ignore the risks immigrants face from ICE

In the Spotlight

Could voting out judges end mass incarceration?

This week, the Houston Chronicle’s editorial board took the extraordinary step of recommending that nearly every sitting criminal court judge in Harris County be voted out. The reason was the county’s cash bail system, described as unconstitutional in a 193-page decision by a federal judge last year, and misdemeanor judges’ insistence on defending that system. The decision, the editorial said, “presents an astounding and disturbing vision of aspects of our courthouse run by people who don’t know whether our bail methods work and don’t seem to care.” Yet all but two criminal court judges continue to fight to preserve the bail system. When the editorial board met with each judge in preparing its endorsements, those judges offered various defenses, all deemed unsatisfactory. Hence: “we recommend that every incumbent judge continuing to fight the bail lawsuit be removed from his or her seat.” [Houston Chronicle Editorial Board]

The scourge of cash bail has been a topic in other judicial races. Earlier this year in San Francisco, four public defenders set out to unseat four incumbent judges. In their platform, they targeted the racial bias of the criminal legal system; the problems with sentencing, bail, and police misconduct; and the incumbents’ complicity in the status quo. Reporting on their ultimately unsuccessful challenge, and the questions it raised about judicial elections as a vehicle for criminal justice reform, Lara Bazelon described San Francisco’s “much-criticized money bail system,” with an average felony bail more than five times the national average. [Lara Bazelon / Slate]

The challengers’ effort in San Francisco was also an effort to have the bench better represent the community it serves. The San Francisco bench is regarded as diverse, and the incumbents included two Asian-Americans, but only 10 percent of its judges are Black, compared with 51 percent of the public defender office’s clients. Latinx people are also a high percentage of those represented by the office, but are only 6 percent of those on the bench.  [Lara Bazelon / Slate]

Nationally, state courts bear little resemblance to the population as a whole. In 2015, the American Constitution Society issued a report on what it called “the Gavel Gap”—the underrepresentation of women and people of color in state courts. Women make up roughly a half of the population and a half of those attending law schools yet less than a third of state court judges are women. Also, the report stated: “Not a single state has as many women judges as it does men.” People of color are 40 percent of the population but less than 20 percent of the judges in state courts. In 16 states, people of color accounted for fewer than 1 in 10 state judges. Women of color are represented at only 40 percent of their presence in the general population. [American Constitution Society]

To some degree, judicial elections are the culprit. The Center for American Progress looked at the underrepresentation of people of color and white women in state court in another 2015 report. It found that even when judges of color were appointed to the bench, they had a lower re-election rate than white judges. White judges had a 90 percent re-election rate, compared with 80 percent for Black judges and only a 67 percent re-election rate for Latinx judges. There is concern that this is the inevitable result of increased spending on judicial races post-Citizens United, the 2010 Supreme Court case that struck down limits on campaign contributions. The Center for American Progress report focused on states with contested judicial election. [Azure Gilman / Al Jazeera America] Earlier this year, a federal judge in Texas found that its statewide elections for judges, while diluting the voting power of Latinx voters and resulting in two overwhelmingly white high courts, did not violate the Voting Rights Act. The judge conceded that the “electoral disadvantage” experienced by the Latinx voters could be overcome by switching to single-member elections, but she declined to order that change, reasoning that voters had failed to prove that the obstacles they faced in electing their preferred candidates were “on account of race.” [Alexa Ura and Emma Platoff / Texas Tribune]

Among the concerns about judicial elections—that they compromise independence, diminish faith in the courts, and depress diversity—are also concerns about how they drive harsher punishments and resistance to social change. But advocates for change are trying to bring enough pressure to bear that judges complicit in the worst of the criminal legal system are punished and progressive candidates are voted in. For that they need voters to turn out and to vote in down-ballot races. 

Last week, the Illinois publication Injustice Watch released its 2018 Cook County Judicial Voting Guide. Illinois has a system of retention elections—after winning their seats in partisan elections, judges seek retention six years later in nonpartisan elections. This year, 59 judges are seeking retention. It has been 28 years since a Cook County judge lost retention but the efforts of community groups may mean that disaffection with certain judges could now translate into an impact at the ballot box. There are also elections for open judicial seats, but given the dominance of the Democratic Party in Chicago, the majority of these elections were decided in the primary. [Injustice Watch]

For judges seeking retention, the guide covers multiple areas, including reversal rates, the sentencing practices of criminal division judges, disciplinary records, and courtroom observation. One judge, for instance, is being sued by two exonerated men who allege that when he was a prosecutor, he and a now-disgraced detective worked to frame them for murder 25 years ago. A campaign to unseat him succeeded in making him the only judge the Cook County Democratic Party decided to not recommend for retention. Another judge, Michael Clancy, in bond court, has repeatedly set bail higher than defendants can afford, in violation of a court rule enacted last year. [Injustice Watch]

Stories From The Appeal

Orange County, California, supervisor Todd Spitzer, who is running for district attorney. [Flickr/spitzer4da]

Is Orange County DA Candidate Sending Mixed Signals on Jail Phone Company’s Contract? Todd Spitzer blasted Global Tel Link for recording attorney-client phone calls, but his campaign won’t call on a PAC supporting his candidacy to return the company’s lobbyist’s donation. [George Joseph]

Charlotte District Attorney Says He Won’t Stop Prosecuting Panhandlers. A judge’s decision could end the practice of jailing people for soliciting money along streets and highways, but DA Spencer Merriweather has been slow to embrace the change. [Steven Yoder]

Stories From Around the Country

Former probation commissioners call for an end to marijuana testing: Five former New York City probation commissioners issued a statement calling for New York to stop marijuana testing of people on probation and parole in the state. While the number of people incarcerated in New York has declined in the last two decades, the number of people admitted to prison because of parole violations increased 21 percent from 2015 to 2016 alone. The vast majority of parole revocations results from technical violations, including failed marijuana tests and missing appointments out of fear of failing such tests. Black and Latinx people are disproportionately subject to parole revocations. The commissioners wrote in their statement: “What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.” The statement calls on the legislature to “codify” the ban on testing, as part of legislation to legalize marijuana use. [The Crime Report]

Michigan police place a 12-year-old in handcuffs:  Grand Rapids, Michigan, police officers handcuffed a 12-year-old girl in the course of investigating what turned out to be a false report of a shooting at the family’s home. This is the fourth time since March 2017 that officers from the department have handcuffed Black children not accused of a crime. In August, officers handcuffed 11-year-old twins and a 17-year-old while responding to a report of a young person with a gun. The girl’s mother, Deborah Wooten, said officers placed her child in handcuffs while on her knees and then searched her for weapons. She said her daughter is traumatized and having trouble sleeping. The officers removed the handcuffs when they learned her age. The police chief defended the officers’ actions, saying the officers showed “compassion” and “good judgment” and the girl was handcuffed “for a minute and change.” [Associated Press]

Allegation that Virginia prison terminated a woman’s visit because she was wearing a tampon: Days after Virginia prisons said they were lifting a policy barring visitors from wearing tampons or menstrual cups, a woman says her visit with her husband was terminated and she was accused of smuggling drugs in with a tampon. The woman, who has visited her husband every weekend for five years, says that during her visit on Sept. 29, she told a corrections officer that she had her period. She was ultimately cleared for the visit but when she later went to the restroom and returned to the visit room, she was told the visit was terminated. She says a prison official told her they were investigating a package in the bathroom that had blood on it. The Virginia Department of Corrections would not comment on the story. A tweet from Oct. 2 references drugs discovered in a bathroom during visitation. [Lauren Gill / Shadowproof]

Advocates call for a Queens DA who won’t ignore the dangers immigrants face from ICE: Queens has the highest percentage of foreign-born residents of any county in the United States. Yet, unlike prosecutors in other New York City counties, its district attorney, Richard Brown, has not called on ICE to stop making arrests in courthouses. Nor does Brown’s office evaluate its policies and practices in light of the possibility of detention or deportation for immigrants. If Brown runs for re-election, he will face a challenge for the first time since he was elected in 1991, including from City Council Member Rory Lancman. Lancman has said that, if elected, he will look at the immigration consequences of prosecutorial decisions, end the prosecution of low-level offenses that disproportionately sweep up immigrants, clear up open summons warrants, and stop prosecuting people for driving with suspended licenses when the suspensions result from a failure to pay fines.  [David Brand / Documented]

Thanks for reading. We’ll see you tomorrow.

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Man Convicted Of Obstruction For Refusing To Open His Door For Police

If his conviction stands, it could criminalize people who refuse to do things like unlock their phones or garages at police request.

John Moore/Getty Images

Man Convicted Of Obstruction For Refusing To Open His Door For Police

If his conviction stands, it could criminalize people who refuse to do things like unlock their phones or garages at police request.

Shouting voices coming from an apartment building broke the suburban quiet in the early hours of March 1, 2016.

A man walking past called officers to the Seattle-area apartment, reporting a loud argument. The yelling had stopped when police arrived outside Solomon McLemore’s Shoreline home, but was replaced by amplified demands from police that McLemore come out or let them in. As the incident stretched on, frustrations grew.

“Open the fucking door,” one officer demanded during the 15-minute exchange.

McLemore declined and stood by as police, having heard glass shatter inside the home, broke down the door. No one inside was hurt. But McLemore was arrested on suspicion of obstruction of a law enforcement officer for failing to open his home to police. He was convicted as charged on Sept. 29, 2016, following a three-day jury trial. Sentenced to 20 days under house arrest, McLemore began a series of appeals that landed his case in the Washington Supreme Court, which is expected to hear oral arguments Thursday.

If McLemore’s conviction stands, Washington would most likely be the only state to criminalize the refusal to assist police in a warrantless search.

His court-appointed attorney, David Iannotti, contends McLemore had no obligation to help police conduct a “community caretaking” search of his home.

Iannotti agreed police were within their rights to enter McLemore’s apartment. State appellate courts have held police may enter if officers reasonably believe someone needs immediate help. But Iannotti argues that the lawfulness of the search doesn’t obligate McLemore to assist in it.

“He didn’t fight with the officers. He didn’t do anything to prevent the officers from entering,” Iannotti said.

“The question isn’t whether the officers have a right to enter; the question is do you have an obligation to unlock the door for the officers,” he explained.

McLemore was convicted of obstruction of a law enforcement officer, a charge that criminalizes otherwise lawful conduct—standing on a sidewalk, remaining inside a home or leaving a parked car—that impedes a police officer. Critics sometimes deride the charge as “contempt of cop.” Whether a person’s behavior constitutes obstruction largely depends on the police view of that conduct, the American Civil Liberties Union of Washington has argued in McLemore’s case.

Obstruction charges can be brought in a broad range of circumstances, providing prosecutors and police an unusual amount of discretion in pursuing charges, said Nancy Talner, an attorney with the ACLU’s Seattle chapter. That breadth in discretion allows for arbitrary and racially disparate charging, and proves particularly problematic when people attempt to exercise their rights to privacy or free speech. But, according to the ACLU, no other jurisdiction has criminalized a person’s passive refusal to open their home to a warrantless intrusion.

The U.S. Supreme Court has long held that the Fourth Amendment requires authorities in most circumstances to obtain a warrant from a judge before forcing their way into a home.

Court decisions on when police can enter a home without a warrant teeter between protections against police overreach and the practicalities of emergency response. But residents aren’t required to conduct a constitutional analysis when facing a police officer without a warrant; courts have found they can assert their perceived right to privacy as long as they don’t commit another crime to do so.

The intrusion into McLemore’s home was ruled to be justified because officers reported hearing glass shatter inside the home. Prosecutors contend McLemore broke the law because his refusal to assist delayed a legitimate search of his home.

Washington’s Supreme Court previously ruled residents cannot be accused of obstruction for speaking or refusing to speak. But an untested 2011 appeals court decision may have cleared the way for obstruction charges against people like McLemore who ignore requests from police.

That Washington Court of Appeals decision upheld the conviction of Ronald Steen, who was charged with obstruction after failing to leave his travel trailer at the request of police officers.

One of the officers responding to a report of a disturbance on a rural property ultimately climbed through a window on the trailer, they said, to check inside for injured people. They found Steen, whom they arrested. Steen refused to give police his name, which is allowed under Washington law, but was charged with obstruction for failing to leave the trailer when police knocked.

In a 2-1 decision, the appellate panel upheld Steen’s conviction with the majority citing an earlier decision related to a man arrested after refusing to leave his car during a traffic stop. The majority opined that “an individual’s willful refusal to obey a lawful police order may constitute obstruction if the refusal hinders, delays, or obstructs the officer.”

The dissenting judge noted that common law and Washington state law affords special protection against searches of a person’s home, and cited a then-six-month-old U.S. Supreme Court decision.

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do,” Justice Samuel Alito wrote for the majority in that decision, Kentucky v. King. “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.”

The state Supreme Court declined to hear an appeal of the Steen case, which has been used to support McLemore’s conviction. Iannotti said a decision in favor of McLemore would most likely invalidate the earlier appeals court decision.

In a brief supporting McLemore, the ACLU, the Washington Association of Criminal Defense Lawyers, and the Washington Defender Association called for a reversal. Washington, they noted, “appears to be the only jurisdiction in which an individual can be convicted for peacefully refusing a warrantless home intrusion.”

“Washington appears to be alone in applying an obstruction statute this way,” attorneys for the organizations opined in the amicus brief. “Amici are aware of no case, from any jurisdiction, holding that a resident can commit obstruction merely by refusing to acquiesce when an officer demands warrantless entry to a home. …

“Where the privacy of the home is at stake, courts have uniformly held that the crime of obstruction does not encompass acts such as closing a door, locking a door, or refusing to unlock a door.”

Briefing the Supreme Court, a city of Shoreline prosecutor cast the question before the court as “whether a homeowner who purposefully obstructs an officer’s lawful constitutional entry into his home may be punished for his behavior.”

“Where an officer is licensed to make an entry, a person’s resistance, whether passive or active, to an officer’s lawful entry may result in consequences,” Assistant City Prosecutor Carmen McDonald argued in court papers.

“It is black letter law that a person may not be penalized for exercising a constitutional right,” McDonald continued. “A person may, however, be penalized for refusing to cooperate with a lawful order.”

Testifying at trial, McLemore said the lawfulness of the police intrusion stood at the front of his mind when he refused to help officers enter his home. He said he was afraid that, whatever the officers were going to do once they came inside, it “was not going to be good” for him or his family.

“I said [to an officer], look man, you’re violating my civil rights,” McLemore told the jury. “I said I have rights. … I thought I was acting on my Fourth Amendment.”

When McLemore’s jury asked the court during deliberations to clarify whether McLemore had “the legal obligation to follow police instructions,” jurors were told to review the directions they were given.

Iannotti and the ACLU contend the framework put forward by prosecutors could lay the groundwork for obstruction charges against people who refuse to do things like unlock their phones or garages at police request. It makes it dangerous for residents to stand up for their rights.

“You have a right to be free of searches without a warrant,” Iannotti said. “A person shouldn’t be penalized for exercising that right.”

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