A Reporter at Large May 11, 2015 Issue
The Milwaukee Experiment
What can one prosecutor do about the mass incarceration of African-Americans?
By Jeffrey Toobin
Like
many people in the criminal-justice system, John Chisholm, the District
Attorney in Milwaukee County, has been concerned for a long time about
the racial imbalance in American prisons. The issue is especially
salient in Wisconsin, where African-Americans constitute only six per
cent of the population but thirty-seven per cent of those in state
prison. According to a study from the University of Wisconsin-Milwaukee,
as of 2010 thirteen per cent of the state’s African-American men of
working age were behind bars—nearly double the national average, of 6.7
per cent. The figures were especially stark for Milwaukee County, where
more than half of African-American men in their thirties had served time
in state prison. How, Chisholm wondered, did the work of his own office
contribute to these numbers? Could a D.A. do anything to change them?
The
recent spate of deaths of unarmed African-Americans at the hands of
police officers has brought renewed attention to racial inequality in
criminal justice, but in the U.S. legal system prosecutors may wield
even more power than cops. Prosecutors decide whether to bring a case or
drop charges against a defendant; charge a misdemeanor or a felony;
demand a prison sentence or accept probation. Most cases are resolved
through plea bargains, where prosecutors, not judges, negotiate whether
and for how long a defendant goes to prison. And prosecutors make these
judgments almost entirely outside public scrutiny.Chisholm decided to let independent researchers examine how he used his prosecutorial discretion. In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office. Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing. According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).
Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety. “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me. “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time. Prosecutors have to redefine their proper role in a new era. Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country. “John is a national leader in law enforcement, because he is genuinely interested in trying to achieve the right results, not only in individual cases but in larger policy issues as well,” Cyrus R. Vance, Jr., the Manhattan District Attorney, told me.
Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans. The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black.
In 2013, former Attorney General Eric Holder announced an initiative, known as Smart on Crime, that directed federal prosecutors to take steps toward reducing the number of people sentenced to federal prisons and the lengths of the sentences. “Prison is very costly—to individuals, to the government, and to communities,” Jonathan Wroblewski, a Justice Department official who was part of the Smart on Crime team, told me. “We want to explore alternatives.” By 2014, federal prosecutors were seeking mandatory minimum sentences in only half of their drug-trafficking cases, down from two-thirds the previous year. The number of these prosecutions inched downward as well.
Last week, President Obama spoke to reporters about the criminal-justice system at the state and federal levels, saying, “If we are serious about solving this problem, then we’re going to not only have to help the police, we’re going to have to think about what can we do— the rest of us—to make sure that we’re providing early education to these kids; to make sure that we’re reforming our criminal-justice system, so it’s not just a pipeline from schools to prisons; so that we’re not rendering men in these communities unemployable because of a felony record for a nonviolent drug offense; that we’re making investments so that they can get the training they need to find jobs. That’s hard.”
The next day, Hillary Clinton gave a speech at Columbia University, in which she called for a national rethinking of the criminal-justice system, and suggested, among other things, putting body cameras on police officers. “Today, smart policing in communities that builds relationships, partnerships, and trust makes more sense than ever,” she said. “And it shouldn’t be limited just to officers on the beat. It’s an ethic that should extend throughout our criminal-justice system. To prosecutors and parole officers. To judges and lawmakers. We all share a responsibility to help re-stitch the fabric of our neighborhoods and communities.” She added, “It’s time to end the era of mass incarceration.”
Chisholm’s experiment is important on its own terms, but it is especially notable now. Scott Walker, the governor of Wisconsin and a presumptive Republican Presidential candidate, is a fierce ideological adversary. Chisholm, a Democrat, who is fifty-two, and Walker, who is forty-seven, both grew up in the state and both attended Marquette University, in Milwaukee. Both have spent virtually their entire lives working for state and local government in Wisconsin. As a state legislator, Walker pursued a traditional law-and-order agenda, and he sponsored bills that sought to increase mandatory minimum sentences for a variety of crimes. He became a statewide figure by sponsoring Wisconsin’s “Truth in Sentencing” legislation, which increased prison time and abolished parole for certain offenders. As governor, Walker has continued to oppose parole opportunities for prisoners. In 2010, the year before he took office, the state granted thirteen per cent of parole requests; in 2013, only six per cent were granted. As the Presidential campaign begins, the debate between these opposing visions of mass incarceration will play out across the nation.
Chisholm
works in the Safety Building, an imposing structure built in 1930, in
the days of municipal prosperity; it has terrazzo floors, and marble
stalls in the bathrooms. At the time, the industrial might of Milwaukee
rivalled that of Chicago, ninety miles away. But the declines of the
nineteen-eighties hit Milwaukee hard, and the building looks as
threadbare as the local economy. Wall clocks in the building haven’t
worked since a fire in 2013. Old records are stored in the cells of an
abandoned jail. (The paperwork in the case of Milwaukee’s most notorious
criminal, Jeffrey Dahmer, is preserved there.)
After
graduating from the University of Wisconsin law school, in Madison,
Chisholm took a job as a junior prosecutor, worked through a variety of
assignments in the trenches, and eventually held a senior position under
E. Michael McCann, who served as Milwaukee’s District Attorney for
thirty-eight years. When McCann stepped down, in 2006, he endorsed
Chisholm as his successor, and Chisholm has since won two races,
virtually unopposed.“I basically divide our world in two,” Chisholm told me in his office. “There are people who scare us, and people who irritate the hell out of us. The first group includes the people charged with homicide and other gun crimes. It’s about ten or fifteen per cent of our cases, a relatively small group, and there’s not much change with them from the old days. The most important thing we can do with those people is incapacitate them, so they can’t do any more harm.”
Chisholm decided to make changes in the larger pool—the “irritating” defendants. “The racial disparity spoke for itself, starting with the disparities in the state prison system,” he told me. “But there were very significant disparities in specific categories. The one that stood out the most was low-level drug offenders—possession of marijuana or drug paraphernalia. There were clearly a disparate number of African-Americans being charged and processed for those offenses.”
Even findings in the Vera report that seemed encouraging turned out to have a troubling subtext. In addition to the city, Milwaukee County includes more than a dozen suburbs, most of which are predominantly white. “When I first saw the data, I thought, Here is some good news,” Chisholm told me. “It said that we charge white offenders for property crimes at a higher rate than we do black offenders for those kinds of cases. So I thought, Good, here is a disparity the other way. That must balance things out. But a deputy of mine pointed out that what the data really meant was that we devalue property crimes in the center city. We don’t charge a car theft, because we think it’s just some junker car that’s broken down anyway. It meant that we were devaluing our African-American victims of property crimes—so that was another thing to address.”
In
2010, Michelle Alexander, a professor at the Ohio State University
School of Law, published “The New Jim Crow,” a study of mass
incarceration among African-Americans. Like many influential works, the
book identified trends that had been apparent for some time. Alexander
noted that the prison population in the United States had grown from
roughly three hundred thousand, in the early nineteen-seventies, to two
million, after 2000. “The United States now has the highest rate of
incarceration in the world, dwarfing the rates of nearly every developed
country, even surpassing those in highly repressive regimes like
Russia, China and Iran,” she wrote. Moreover, “the racial dimension of
mass incarceration is its most striking feature.”
This
critique has grown in intensity in recent years. “Mass incarceration is
ahistorical, criminogenic, inefficient, and racist,” Paul Butler, a
professor at Georgetown University Law Center, told me. “Throughout much
of American history, we incarcerated about one hundred people per one
hundred thousand people in the population. After the eighties, it moved
to six hundred or seven hundred per hundred thousand. Prisons are
finishing schools for criminals, so they breed more crime. They cost a
fortune to maintain. And the racism of the process just starts with drug
crimes. Black people don’t use drugs more than anyone else, but, with
thirteen per cent of the population, black people make up close to forty
per cent of inmates serving time for drug offenses.”Some prominent Republicans also have begun to criticize current policies. The Koch brothers have funded work by the National Association of Criminal Defense Lawyers which aims, among other things, at limiting mandatory minimum sentences in drug cases, and, in a broad effort to reduce prison sentences, they have joined forces with such unlikely allies as the American Civil Liberties Union and the Center for American Progress. Rand Paul, the Kentucky senator and Republican Presidential candidate, has sponsored a bill with Cory Booker, the New Jersey Democrat, that would allow youthful offenders more opportunities to expunge criminal records.
Scott Walker has shown little interest in joining this movement. For the most part, he has focussed his administration on tax cuts and budget cuts (especially for higher education) and on a successful battle against public-employee unions in his state. In terms of criminal justice, Walker’s primary effort has been to expand gun rights. In 2011, he signed a law that allowed people to carry concealed firearms and one that endorsed the “castle doctrine,” a presumption that homeowners act lawfully if they shoot an intruder on their premises. Chisholm opposed these measures.
One of the difficulties of criminal-justice reform is that power is spread so diffusely through the system. “Criminal justice is a system, and no one person or group is in charge of it,” Alfred Blumstein, a professor at Carnegie-Mellon University, told me. “You have legislators who decide what’s a crime and establish the range of penalties. You have judges who impose the sentences. You have police who decide whom to arrest. And you have prosecutors who have wide discretion in what cases to bring, what charges to call for, and what sentences to agree to in plea bargains.” Each of those participants has contributed to the rise in incarceration. “Are more people in prison because there is more crime?” Blumstein asked. “More arrests per crime? Better policing? Longer sentences imposed by judges? More mandatory minimum sentences established by legislatures? Tougher decisions by parole boards?”
But a recent quantitative analysis by John Pfaff, a professor at Fordham Law School, who also has a Ph.D. in economics, argues that sentencing laws are not the main reason for the increase in the prison population. “For all the tougher sentencing laws, there is not much more time served in prison per prisoner,” he told me. “Prisoners are serving about the same amount of time now as they did in the eighties.” Rather, Pfaff points to prosecutors—more than cops, judges, or legislators—as the principal drivers of the increase in the prison population. “The real change is in the chances that a felony arrest by the police turns into a felony case brought by prosecutors,” he said.
How this change came about defies easy explanations. The United States Department of Justice, through its U.S. Attorneys, plays a relatively small role in incarceration. Federal prisoners amount to just over ten per cent of the total prisoner count in the country. There are roughly twenty-three hundred different local prosecutorial offices in the United States; most prosecutors are elected independently; and the lead lawyer in each office has considerable discretion in setting policies. In New York City, each borough elects its own district attorney, and the D.A.s’ policies differ, sometimes significantly. (Kenneth P. Thompson, the Brooklyn District Attorney, has effectively decriminalized possession of small amounts of marijuana, while the city’s four other D.A.s have not.) Still, as Pfaff said, “if you are going to reduce the prison population, prosecutors are going to be the ones who have to lead the way.”
The most significant
innovation in Chisholm’s overhaul of the office involves an “early
intervention” program, which begins after a defendant is arrested but
before arraignment. Each defendant is given an eight-question
assessment, which can be conducted in about fifteen minutes and is
compared to the information on the rap sheet and in the police report.
The questions include: “Two or more prior adult convictions?” “Arrested
under age sixteen?” “Currently unemployed?” “Some criminal friends?” A
low score can lead to an offer of “diversion”—a kind of unofficial
probation that, if successfully completed, leaves the individual without
a criminal record. A high score leads to a second, more detailed,
fifty-four-question assessment. The questions include: “Ever walked
away/escaped from a halfway house?” “Were you ever suspended or expelled
from school?” “Does your financial situation contribute to your
stress?” “Tell me the best thing about your supervisor/teacher.” Results
of the assessment may also lead to diversion or may lead to a more
intensive kind of post-arrest supervision, known as deferred
prosecution. People in this group will maintain a criminal record of an
arrest but may have their charges reduced or dismissed. To participate
in these incarceration alternatives, a defendant must commit to
completing drug-treatment or other educational programs that are
approved by Chisholm’s office.
“The
whole program is designed to reduce the number of people we are putting
in jail or prison, but to do it in a smart, accountable way,” Jeffrey
Altenburg, a deputy district attorney, who oversees the
early-intervention program, told me. “It’s to get people back on track,
based on their risk and their need.” Every week, Altenburg, an
eighteen-year veteran of the D.A.’s office, conducts a series of
informal meetings with people in the diversion and deferred-prosecution
programs who are in danger of being thrown out and returned to the
traditional criminal-justice system.A man I’ll call John was the first offender at a recent hearing, which took place in a subdivided conference room in the Safety Building. Altenburg was joined by a lawyer from the public defender’s office and a case manager from an outside agency. At nineteen, John had already spent a year in juvenile detention, for robbery, and his recent arrest was for possession of marijuana. He had reported to the program supervisor that he had used Percocet without a prescription. “I don’t have an addiction problem,” he said. “It’s more choices and decision-making.” He was praised for reporting his violation, and told to attend a class on decision-making and return to the committee in two weeks. The case officer noted that John’s girlfriend was pregnant. “Of course,” the public defender muttered.
Jane, a fifty-two-year-old who was in diversion for shoplifting, had failed her fifth breathalyzer test for alcohol and tested positive for cocaine, but she had maintained her community-service obligation at the Salvation Army. “You’ve been in this program a long time,” Altenburg said to her. “You have shown the ability to improve. You can get through this program. You need to work on your addiction.” She promised to continue counselling.
Joe, who was in his mid-twenties, had received a deferred prosecution for a burglary, which involved stripping the contents of an unoccupied house. The police had recently charged him with disorderly conduct and had also found him passed out in a parking lot. His attorney said that he was sleeping off a drunk so he wouldn’t drive while intoxicated. “He is not a bad guy, but he has trouble making smart decisions long-term,” she said. Altenburg noted that Joe had committed other violations, and revoked his participation in the program. He would be convicted of felony burglary.
Bob had been arrested after he yanked the steering wheel from the passenger seat in a car, causing a crash. As part of his deferred-prosecution program, he was supposed to take a cognitive-behavioral-therapy class, but his attendance was poor, because he was caring for his girlfriend’s two-year-old son, who has special needs. (Bob’s girlfriend was pregnant again.) Altenburg pressed him for better attendance.
As a group, those in the early-intervention program seemed more like lost souls than like desperadoes, but they were all lawbreakers and, in many cases, repeat offenders.
Efforts
by Chisholm and others to keep low-level offenders out of prison
represent the core of the criminal-justice-reform movement—and these
initiatives are passionately opposed by traditional law-and-order
advocates. “The new mantra from the reformers is for ‘evidence-based’
solutions and assessments to determine who is low risk, and then we find
that some of them go out and slaughter people,” Michael Rushford, the
president of the right-leaning Criminal Justice Legal Foundation, which
publishes a widely read blog called Crime and Consequences, told me.
“What the reformers never want to talk about is that, in the eighties
and nineties, once we incarcerated a lot of people, the crime rate went
down dramatically around the country.” He went on, “Over the past ten
years, we’ve been winning the war of attrition on crime, because the
deterrent effect works. People don’t commit crimes, because they don’t
want to go to prison. The reformers are teaching the opposite lesson. If
a guy is stealing cars, and finds that he’s never going to go to prison
for stealing cars, what do you think he’s going to do? He’s going to
steal a lot of cars and then move on to stealing something else.” It is
true that the over-all level of crime has fallen in the United States
over the past two decades, but the debate over whether mass
incarceration is the reason for this decline has been inconclusive.
At
the local level, Chisholm’s aversion to incarceration has drawn the ire
of probably the best-known law-enforcement figure in Milwaukee (and the
only African-American in a senior position), David A. Clarke, Jr., who
has been the sheriff of Milwaukee County since 2002. Clarke, whose
responsibilities include supervising local jails, has a dashing public
profile, thanks in part to a penchant for topping his black uniform with
a cowboy hat. On Clarke’s campaign Web site, he states, “My
soft-on-crime opponents emerge from Candy Land to propose second
chances, third chances, and fourth chances, in the process endangering
our homes, neighborhoods, and schools.” When I talked with him in his
office, which is also in the Safety Building, he drank coffee from a cup
bearing a portrait of John Wayne.Clarke told me, “Their whole movement comes up with these cutesy phrases—‘those who scare us, those who irritate us’—but those who violate society’s rules over time need to pay the price. They need to be punished for their misbehavior. That’s how you change behavior.” In particular, Clarke opposes Chisholm’s predisposition for drug-treatment programs rather than jail or prison. “I’m not for government-funded drug-rehab programs,” he said. “These individuals are making this choice. Those programs de-motivate people to address their own problems. So don’t expect me to pay for your drug rehab. Find your own through the private sector.”
Clarke believes that Chisholm’s effort to reduce incarceration hurts those it’s intended to help. “In the communities where most crime takes place, we do not have the support structures in place for social alternatives to incarceration. So you are putting them back into the community to claim more black victims. If you want to let people back on the street, you have to think about the people who are going to be dealing with them—my people, black people. What I’ve heard recently with criminal-justice reform is simply normalizing criminal behavior in a community that can least afford it—the ghettos.”
Advocacy for Walker in the Doe case has become a cause célèbre in conservative circles. “Some truly outrageous things have gone on in the state of Wisconsin that have happened as part of the effort to destroy Scott Walker,” Rush Limbaugh said on his radio broadcast last month. “It was the kind of thing that Vladimir Putin does and we all laugh about because that’s what we expect in a tyrannical dictatorship like the Soviet Union or Russia. We find out that it can happen here and has happened here, and there was no mechanism to stop it. The prosecutor’s name is Chisholm, John Chisholm, and I hope his name is never forgotten.”
The
vast majority of the murders in Milwaukee take place on the north side,
which is overwhelmingly African-American, with an unemployment rate
above forty per cent. In 2014, there were eighty-seven homicides in
Milwaukee, which has a population of just under six hundred thousand. If
New York City had Milwaukee’s murder rate, there would have been more
than twelve hundred homicides in 2014; the actual number was three
hundred and twenty-eight. In Milwaukee, this year has got off to a
dismal start. By the end of April, there were forty-eight homicides. As
the Milwaukee Journal Sentinel noted in a recent headline, “How could this happen? No easy answers to Milwaukee’s spiraling violence.” Chisholm told me, “This last patch has been a tough one.”
Since
2008, the police chief in Milwaukee has been Edward Flynn, who is
sixty-six years old and a longtime ally of New York’s police
commissioner, William Bratton. Like Bratton, he relies on crime data to
direct officers to the most dangerous neighborhoods. “The reality for
urban police practitioners is that we respond to the overwhelming
victimization of black people,” Flynn told me. “Every community meeting I
go to in an African-American neighborhood is fuelled by demands for
more effective police services. The sad fact is that most violent
offenders look like their victims. So that means everything we do is
going to have a disparate impact on communities of color.”
When
I took a drive around north Milwaukee with Jacob Corr and Christopher
Ladwig, community-based prosecutors in Chisholm’s office, and Patrick
Fuhrman, a sixteen-year veteran of the police force, in an unmarked car,
they insisted that I wear a bulletproof vest. Corr was an early
enlistee among Chisholm’s lawyers in the field and, for a decade, has
been assigned to the police station in north Milwaukee. “I’m a
six-foot-four-inch bald white guy,” he told me. “It was going to take me
a while to generate trust here.” In Ladwig’s office were maps of the
neighborhood marked with red dots for major crimes and blue dots for
non-fatal shootings. He relies on data from “shot spotter” technology,
which alerts the police every time a gun is fired in certain areas of
the city; it goes off about eighteen times a day. Even in poor
neighborhoods, Milwaukee still has a lot of sturdy housing, built in the
early twentieth century, but the streets around Washington Park, a
couple of blocks from Ladwig’s office, bear signs of trouble. Most
commerce takes place in “corner stores,” as convenience stores are
called here. They do a steady business in Jackpot cigars, which are
emptied and filled with marijuana, and Chore Boy scrubbers, which can be
used to make crack-pipe filters.
The
prosecutors’ duties go well beyond those of traditional prosecutors. In
2011, Ladwig helped persuade Habitat for Humanity to renovate some
houses on a block in a particularly crime-ridden neighborhood, and the
crime rate dropped precipitously. Ladwig has also worked closely with
the Benedict Center, a nonprofit agency in the same neighborhood that is
dedicated to helping both female victims of crime, usually domestic
violence, and female offenders, usually prostitutes. Ladwig and his
colleagues found that prostitutes who were treated at the Benedict
Center had a better chance of staying off the street than those who were
arrested. In a rare example of collaboration between Chisholm and
Walker, in 2013 the Governor provided more than ten million dollars in
funding for the Sojourner Family Peace Center, a nonprofit in Milwaukee
that helps victims of domestic violence.
Back
at the district police station, the magnitude of Milwaukee’s problems
comes into focus. One afternoon, Mallory O’Brien, an epidemiologist
affiliated with the Medical College of Wisconsin, convened a meeting of
the Milwaukee Homicide Review Commission, which she directs. Once a
month, O’Brien brings together cops, prosecutors, parole agents, and
judges to conduct brainstorming sessions about recent homicides in the
area. Together, they suggest ideas about how the violence might be
prevented. “For years, the federal government has had a review
commission to look at every death on the highway and see what can be
learned from it,” O’Brien told me. “We’re using the same idea for
shootings in Milwaukee.” After a series of crimes committed by people
who had returned from prison, the review group helped create a team of
officers and parole agents who visit parolees’ families before and after
they are released, to ease the transition.
Six
homicides were reviewed at the meeting I attended, and they all seemed
like variations on the same dismal theme. A drug transaction was planned
or consummated. A dispute arose, usually near a bar. Suspect and/or
victim were drunk or high. Shots were fired. All parties, including the
witnesses, were African-American. More than eighty per cent of both the
perpetrators and the victims of Milwaukee homicides have criminal
records.This inventory from the homicide-review panel illustrates the limits of Chisholm’s efforts. To some extent, he has succeeded in his goals. There are many fewer prosecutions of both blacks and whites for low-level drug offenses. Chisholm has stopped bringing cases for possession of drug paraphernalia, which were at the heart of the original Vera study. On his watch, the over-all number of misdemeanor prosecutions in the county has dropped from nine thousand to fifty-two hundred. Likewise, once Chisholm instituted a policy that all burglary-case filings must be approved by a senior prosecutor, the disparity that led to more cases against white alleged thieves than black ones faded. The number of African-American residents of Milwaukee County sent to state prison on drug charges has been cut in half since 2006.
Still, Chisholm acknowledged that cases involving gun violence or homicide inevitably skew attempts to redress racial imbalances in incarceration. “Almost all of our shootings and almost all of our homicides are black-on-black crime, and that’s an enormous problem,” he told me. The prison population in Wisconsin has dropped from roughly twenty-four thousand five hundred, in 2007, to twenty-two thousand today, and most of the reduction has come from Milwaukee County. Still, the change in the racial makeup of the prison population has been modest. Chisholm said, “We’re no longer sending low-level drug offenders to state prison, but we are still sending violent criminals, and that’s keeping the African-American numbers up. If we do this right, the people who are going to prison should be going to prison. The people who are going to prison are dangerous.”
To explain this year’s crime rise, as well as the persistent racial disparities, Chisholm cites forces beyond his control—poverty, hopelessness, lack of education, drug addiction, and the easy availability of guns. In this way, Chisholm’s greatest lesson may have been in humility. “We redesigned our system, but we learned that no individual actor can change the dynamics of what goes on in a complex larger system like a city,” he said. ♦
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