Disparate Times

Even judges see the disparities in drug prosecutions in Cuyahoga County

Back in September 2001, as the nation recoiled from mighty blows at the hands of foreigners, the Rev. Marvin McMickle was settling into his new role as foreperson of a county grand jury, the engine of indictment for serious crimes committed by our neighbors. What he discovered still haunts him to this day — a “21st-century scarlet letter” he’d suspected but didn’t want to believe still existed for many of those who share the color of his skin.

Watching a handful of grand juries operating at once, two days a week, each hearing about 60 cases a day, McMickle soon perceived a disparity: Around half the cases were against low-level drug offenders, almost all of whom were black. At a tour of the county jail at the beginning of his term, McMickle “had to work hard to find a white face” on the other side of the bars.

In his report at the end of his four-month term, the longtime pastor of historic Antioch Baptist Church on Cedar Road was the first civic leader in years to indict the system and its crapshoot of consequences.

“The grand jury process had an apartheid feel to it,” he wrote to Common Pleas Judge Richard McMonagle in February 2002, with an “established pattern of quick indictment of persons on petty drug offenses. I am not condoning drug use, drug possession or drug trafficking. What I am concerned about are the random stops by police for alleged questioning on a traffic violation, a pat down or search of the car that results in the discovery of some infinitesimal amount of drugs, and a quick arrest. The arrest often results in confiscation of property, and, more importantly, the creation of a felony criminal record and the implications that has for voting rights and job opportunities down the road.”

McMickle concluded that the circumstance “lends to the suspicion that the criminal justice system in Cuyahoga County practices its own brand of racial profiling, and that street-level drug activity seems to be the most efficient way to pursue that policy.”

Today, in his office at Antioch, McMickle has the look of someone proud of being right. Toweringly tall and statesmanlike, he leans back into a comfortable chair and smiles while discussing how his successors on the grand jury, and now a prominent professor of criminal justice, have all come to the same conclusion: It pays to be white and live in the ’burbs.
Granted, a black man who admits he was fond of “blow” in high school is poised to become the next leader of the free world. But he was lucky, McMickle says. A felony record likely would have preempted a run for dogcatcher, much less the White House.

“This is not just a chasm between blacks and whites, but between African Americans who’ve been able to reach a certain status, those who’ve ‘left the neighborhood,’ and those who haven’t,” McMickle says. “And it doesn’t take much to get stuck there. If you get a [fifth-degree] felony at 20, 20 years later, you’re still a felon and maybe you’re having a hard time taking care of your family, right? That just perpetuates this cycle.”

So too does the money that flows through the quagmire known as the War on Drugs.

Exactly one year after McMickle took the helm of his grand jury, Ursuline College adviser Dorothy McCombs was just sitting down to her term. She wasn’t in charge as foreperson and she isn’t a black woman, but she couldn’t stay silent about what she was seeing. In December 2002, she penned a report about Cleveland defendants charged with felonies, while suburban offenders faced misdemeanors and small fines.

Common, she wrote, were cases with a single charge of drug possession for cocaine residue on a crack pipe: “Several cases of this type were heard during each session. While the possession charge is mandated by statute for pipe residue and supported by case law…a felony charge seemed draconian to some jurors. It was particularly disturbing to realize that this type of arrest and felony charge for residue seemed to be the rule in the city of Cleveland but not the suburbs.”

Cleveland and CMHA cops, she noted, “seemed to enforce this law with a vengeance, while in one instance a suburban police department chose to call the pipe with residue ‘paraphernalia’ and handle the misdemeanor charge at the city level. There were few if any pipe-residue cases from anywhere else in Cuyahoga County.”

By the time Common Pleas Judge Burt Griffin impaneled a new grand jury in May 2003, he’d heard all about these disparities and was prepared to do what he could to end them. He selected Phyllis Crocker, associate dean of law at Cleveland State, as one of two forepersons and stapled McMickle’s and McCombs’ reports to his handout instructions. He told jurors about how suburbs treated these cases differently and that “you may also make that decision if you believe justice so requires.”

County Prosecutor Bill Mason, of course, wasn’t having any of this. He immediately called for the disbanding of the grand jury and pressed all the way to the Ohio Supreme Court. The matter was resolved mostly in Griffin’s favor, but Crocker’s grand jury heard just one day of cases, on August 27, 2003, their last day of service.

“That battle had to do with power,” Griffin says today (he’s since retired). “Who could exercise influence and control over the grand jury? In large counties like Cuyahoga, the prosecutor exercises a lot more control over grand juries than I think they probably do in small counties. The judges in small counties have more of a working relationship with the prosecutors. Still, theoretically, judges are supposed to oversee grand juries, and for decades that has not happened here — probably for a century it hasn’t.

“When I asked [the jurors] to look closely at these crack-pipe cases and gave some legal instructions on that, this conflicted with what the prosecutor wanted them to do. And the fact that a law professor was in charge of the grand jury” — Griffin chuckles — “[Mason] was fighting these instructions and a professor who teaches criminal law who knew as much about criminal law as the prosecutor who was there pressing these cases.”

Mason, via e-mail through a spokesman, defended his opposition of Griffin’s instructions: “Judge Griffin, in his role as supervising judge, empanelled the grand jury and then instructed the grand jury to use a different burden of proof in certain drug cases. This is contrary to law, which is why we asked the Ohio Supreme Court to disqualify him from supervising the grand jury. The legal standard for indicting all felony cases is probable cause. This standard is the same for drug possession (including crack-pipe cases) and aggravated murder.”

Regarding pursuing these cases as felonies when similar crimes prompt lesser charges elsewhere, Mason defined his role and eschewed the blame.

“Police from every jurisdiction in our county bring us facts and evidence of crimes committed. If those elements of a crime support a felony charge, we present the case.”


In this climate, change has been predictably elusive.

In 2005, 81 percent of all county drug arrests involved black people, despite evidence of equal drug use among all races. A series of Drug Policy Project studies from the Federation of American Scientists found that, nationwide, white people are just as likely to engage in illicit drug use. Whites make up 67 percent of the county.

In January 2006, C. Ellen Connally, a Cleveland Municipal Court judge from 1980 to 2004, took the helm of a grand jury and resuscitated the crack-pipe issue, something she believes points toward deeper-rooted problems within the system.

“No one will ever convince me that the possession of crack pipes stops at the borders of Cleveland,” she wrote in her report to Judge Eileen T. Gallagher. Connally lamented how she “got the impression that in many [crack-pipe] cases, police go out and essentially ‘shot fish in a barrel.’ They know the so-called ‘high-drug areas,’ so they go to the locations, pick up a couple of crack users, arrest them, get an indictment and conviction, get some overtime, keep the crime statistics up and repeat the same cycle.”

After three weeks of service, Connally recused herself from any more crack-pipe cases. “If it is a felony in Cleveland to possess a crack pipe, it should be a felony in Westlake, Eastlake and every other suburb,” she wrote to Gallagher.

Today she says, “All we’re doing is filling up our jails with people at the end of the line. I’m not going to say that these people are not supposed to be punished. I’d have liked to have seen these people getting help. It’s easy to just pick up the low-hanging fruit.”

Connally, who’s still assigned cases at the municipal level, says this is just one type of law that inordinately punishes Cleveland citizens, particularly African Americans. She plans to issue an opinion this week in a case that would strike down a local ordinance that allowed a police officer to arrest and charge a local man for handing keys to his girlfriend through the open window of a car, illegal since 2002 in Cleveland. No one at the scene got caught with anything illegal, Connally says, but still, the man got charged because the law prohibits the exchange of anything to and from a vehicle.

“It’s one of these situations where somebody on [City] Council wanted to give all cops probable cause,” she says. “But that’s terrible. What person hasn’t handed something to someone in a car? You can’t just give blanket probable cause to police officers. Are you kidding?”

In a series of discussions under the moniker Incarceration Nation, the ACLU of Ohio has brought together a variety of voices on the subject of disparity. It’s been fertile ground for some telltale revelations. Like this discovery: A Justice Policy Institute report in March 2006 found that new “Drug-Free Zones” — which rack up police overtime costs — don’t keep children from using drugs, but instead perpetuate racial disparities in arrest, charges and sentencing.

With that dynamic in mind, those involved in those early speeches created Citizens for a Safe and Fair Cleveland in March 2007.

“Our contention would be if we put the same attention into many white suburban neighborhoods, we’d find drugs there too,” says Christine Link, executive director of the ACLU of Ohio, whose organization is part of the committee. “We might not find a crack pipe, but we’d find a corollary drug problem. White people are using drugs just as much as African Americans, if not more, but you don’t have these kinds of drug squads running through Strongsville looking for them.”

The uneven enforcement has been devastating to neighborhoods where black people are more likely to be raised, says Shakyra Diaz, ACLU of Ohio’s education director: “We’ve helped to create an economic drought. We’re removing social capital from every corner in the city, when we don’t even have to.”

Shortly after forming, the CSFC contacted the ACLU and asked for help financing a complex analysis. Mona Lynch, then the dean of justice studies at San Jose State, came soon after to pore through the facts. She was qualified.

Building on the famous study by lawyer David Baldus that showed how the race of Georgia victims and murder suspects factored heavily in whether the death penalty was applied, Lynch strengthened Baldus’ conclusions when she published a study in Law and Human Behavior that showed mock juries examining the real case of a pizza-shop owner who was tied up and murdered during a robbery. She did two trials: one with a black suspect and white victim, and the reverse. She found that juries were likely to send the black suspect to the electric chair and the white man to jail.

For her new report, published this week at www.safefaircleveland.org, Lynch examined Cuyahoga County’s grand jury reports along with demographic data to conclude officially that the racial disparity in crack-stem cases exists here. What’s still a bit muddy are the causes.
One element of the disparity is how suburbs are motivated to file misdemeanors instead of felonies — in the former, fines are collected by the local municipal court. Felonies are handled at the county level.

Judge Griffin adds that city prosecutors, asked to explain their reluctance to handle crack-pipe cases, balked at the added burden. “They thought it would increase their workload — not just for them but their probation department, treatment programs, all that. So they thought it would be better to do it at the county level. I really don’t think this is racism. I’ve said that repeatedly. This has more to do with money than anything else.”

Lynch also references Judge Connally’s poke at overtime pay by noting how Cleveland police officers receive four hours of overtime to testify in grand jury felony cases (that’s eight hours with Cleveland’s two-person squads), although they’re often not even called to testify. This was glued into police labor contracts over time.

“You can’t say there’s a smoking gun of some person in a back room saying, ‘Let’s give all the black people felonies and let white people have misdemeanors and a free pass,’” Lynch says. “What’s going on is, there’s not enough institutional heart to say that this is a problem…People up and down the line know this is happening, and nothing’s [changed]. That’s a classic example of institutional racism, because the system, for expediency, for political reasons, for resources reasons, ended up with a result that’s race-based. It’s more like complicity, saying, ‘That’s too bad, but hey, they’re drug users.’”

Police spokesman Lt. Thomas Stacho and union president Steve Loomis didn’t return several calls seeking comment.

Councilman Kevin Conwell, chairman of Council’s Public Safety Committee, points to another reason for pursuing felonies in the city: leverage. “The guys who [police] catch on these types of things, when they’re facing a felony, they’re going to tell police about so many cases, even homicides. They’re singing. That’s why you don’t hear this talked about so much.”
Still, he’s aware of the city-suburb disparity.

“My brothers are being decimated,” Conwell says. “When you get a felony arrest, you can’t get a job and so you end up doing whatever you can to survive. It’s ruining lives, and the system creates most of this. Why would things be different just because this person grew up in Cleveland?”

Robert Tobik, the county’s chief public defender, has been arguing for years for misdemeanor paraphernalia-possession charges instead of felonies in crack-pipe cases. He’s done a lot of work on the subject of disparity and hasn’t seen much improvement…yet. He hopes a move in June by county judges to finally shift a decade-old and critically praised drug court from Cleveland Municipal Court to the county level will help.

Over the last decade and a half, drug courts nationwide have proven effective by holding the gavel over the heads of participants, wiping criminal records clean for those who stay clean themselves. The problem: The city has the resources to serve just 200 or so suspects in drug court a year.

“For every dollar you spend in drug court, you save something like $7 elsewhere,” Tobik says (several recent studies have found similar savings). “We’re trying to get it so people don’t get felonies on their record, but if they have a drug problem, we’re trying to get them the help they need so they don’t get a felony down the road.”

Bill Kelly, the public defender at the city drug court since its inception, speaks to the financial incentives too: “The real bottom line is, it costs like $35,000 to jail somebody for a year, but it costs about $5,000 to send somebody through drug court. And something like 80 percent [of defendants] don’t come back. To me, what matters is helping a person. The real question is, are you addicted? I’m telling you, at least 75 percent of the people who are caught with a crack pipe have some drug problem. Whether you charge them with a misdemeanor in Rocky River or a felony in Cleveland, the fact is, they need to say, ‘I’ve got a problem.’”

Judge Larry Jones volunteered to lead the city drug court a decade ago, when county judges voted against starting one of their own. A former assistant county prosecutor, Jones says he used to have a throw-the-book-at-them approach. “I’ve gone 180 degrees on this subject,” he says, “and it’s been based on the facts.”

He likes to tell his charges that he’s “the hammer” perched over each of their heads to make them stay the course. If it were up to him alone, he’d prosecute a whole host of low-level possession cases as misdemeanors, not just the crack-pipe cases. Treatment programs could be bolstered with the money saved by keeping prison beds empty.

“If you’re trafficking in drugs, I’m not talking about you,” he says. “But if you’re using a small amount, I’d like to keep those people out of the system, charged with a misdemeanor and getting the right help they need.”

The conventional wisdom is that a new county drug court can’t help but make things more equitable. But Jones worries that perhaps the suburbs will just start to charge more low-level drug crimes as felonies.

“If you get arrested with a crack pipe in Cleveland or Parma, you should be treated the same,” Jones says. “What are we doing? We should be thinking about treating those people with the same exact resources. We have a ton of young folks with low-level drug charges who now are going to have a felony record. The prospect of that person gaining meaningful employment is slim to none. And so, what we’re doing is, we’re creating an awful lot of desperation.”

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