Mason seems content to let '09 end with no progress on racial disparity in drug sentencing

Local black leaders say the perception persists: At each turn, the criminal justice system crashes down harder on blacks than it does whites. Drug arrests occur at a greater rate on the city's predominantly black East Side; Ohio prisons maintain a disproportionately black population; even the lines to get into the downtown Cleveland justice center seem overwhelmingly black, one leader says.

Efforts to understand and address apparent disparities in the system have come in waves, with varying degrees of success. Last year, academic and media reports about racial inequities in Cuyahoga County prosecutions brought the latest round of outrage and the latest calls for reform ("Disparate Times," Scene, July 30, 2008). At the center of the reheated debate was county prosecutor Bill Mason, who vehemently defended his office after a October '08 Plain Dealer series highlighted favorable sentences and treatment programs for white defendants in low-level drug cases — the same types of cases that typically end in jail sentences and felony records for black defendants.

Mason put himself at the helm of the reform effort — one that is currently in a holding pattern. More than a year has passed since Mason and other county and city officials met with leaders in the black community to discuss inequities in drug-case sentencing, with no reports of progress.

The movement is agonizingly slow. A group of public officials and community leaders convened by Mason has commissioned a study that may not see the light of day until next spring, said Cleveland councilman Kevin Conwell, a participant in the reform group. The study — conducted by researchers at Cleveland State University and the University of Cincinnati — is expected to examine police and court records on the city and county level, looking at sentencing patterns and variables like referrals to treatment programs, plea deals and whether a defendant used a private lawyer.

But Ryan Miday, a spokesman for Mason, says the study is stuck on the launching pad because researchers are still seeking access to law-enforcement records and a contract with the University of Cincinnati had not been finalized.

Mason did not respond to a request to comment about his goals for the study or reform.

Leaders who have fought for reform in the past are waiting patiently and with a healthy degree of skepticism as to what this will mean in the long run.

"I'm hoping something will come out of the county prosecutor's effort," says Cleveland municipal judge Ronald Adrine, considered by many to be one of the most dedicated advocates for criminal-justice reform in Northeast Ohio. "It'll be a precursor for doing some good things.

"But realistically, I'm not prepared to say that I'm expecting anything more than a report," he adds. "I just have to sit back and wait and see what happens."

It's hard to blame Adrine for his somewhat weary, wary view — he's been on the front lines of these fights for years, and changes have come in "slow motion," he says. The fight for racial fairness has long been fought by lawyers and judges of all colors, backgrounds and ethnic groups. Some goals have been met, including improved language-interpretation services and a greater awareness of racial fairness among judges, but "no victory is ever final," says Adrine. "Unless you're still pushing for additional progress, you'll never see it. The law by definition is about the status quo and protecting the status quo."

Scene met last month with three reformers: lawyer James Hardiman, ACLU Ohio education director Shakyra Diaz and Cleveland NAACP executive director Stanley Miller. All three are involved in a local coalition called Citizens for a Safe and Fair Cleveland. They describe Cleveland's black community's continuing suspicions regarding the role of race in justice. The 1980s case of Arthur Feckner, a white drug dealer who sold drugs in a predominantly black neighborhood with the blessing of Cleveland police, still strikes a nerve.

For these advocates, it seems obvious: The criminal-justice system gobbles up blacks at a much higher rate than whites.

Numbers support this: In the United States, blacks are imprisoned at nearly six times the rate of whites, according to a 2007 study published by the Sentencing Project, a national reform organization (that rate is roughly the same for Ohio, according to the same study). Blacks make up 12 percent of the population in Ohio, according to the latest U.S. Census Bureau statistics, yet black inmates make up 48 percent of the state's prison population, according to Ohio Department of Rehabilitation and Correction statistics from January 2009.

But local statistics are needed to quantify the apparent sentencing disparities here. Hardiman says advocates need data and statistics to back up the anecdotal claims of injustice, he says. Only then can the problems and solutions be pinpointed.

"We suspect there's a problem, but unless there's data collection, we don't know," says Hardiman. "Minorities nationwide feel they are unfairly profiled, targeted, arrested, prosecuted and subject to harsher sentences. Judges nationwide deny that they would ever discriminate on the basis race, gender or any other impermissible factor.

"Until we start to collect data, you have a significant portion of the population that look at the judiciary with [suspicion] on their mind."

The call to gather such information stretches back to at least 1993.

That year, the Ohio State Bar Association and the Ohio Supreme Court established the Ohio Commission on Racial Fairness (which Adrine chaired). That group released an 89-page report that made more than 60 recommendations. The job of turning those suggestions into reality went to a Racial Fairness Implementation Task Force. That group came up with a plan that included a recommendation that the Supreme Court require detailed reporting of sentencing data by local courts.

In 1995, state legislators passed a law that asked judges to take note of whom they sentenced, how they sentenced them and why they chose that sentence. But the judges across the state never signed on, and Ohio chief justice Thomas Moyer has repeatedly said that he can't force judges to do so. (In Cuyahoga County, at least one judge, Timothy McGinty, has said he's in favor of collecting such information.)

Mark Schweikert, a former Hamilton county judge and now head of the Ohio Judicial Conference, tells Scene that judges remain reluctant to collect such data because they're afraid the information would be used against them politically. Schweikert says the information gathering would be extensive — and likely expensive — considering just how many factors judges have to take into account when they issue sentences.

But Diaz of the Ohio ACLU points out that Minnesota and Iowa already have statewide databases that collect this sort of data. 

"It's really the only way you can prove that there are issues, but you have to be motivated to acknowledge that those things exist and want to fix it," says Diaz. "By avoiding the data collection, you're avoiding having to acknowledge and fix any of these problems."

There has been a reform movement in Cuyahoga County this decade, thanks to some who have gotten an inside look at how grand juries work. In 2001, the Reverend Marvin McMickle, after serving as a grand-jury foreman, raised concerns over the volume of low-level drug cases that involved blacks. After others raised similar concerns, the American Civil Liberties Union commissioned a report that showed that although whites and blacks abuse drugs at a similar rate, African Americans in Cuyahoga County were more likely to get saddled with a felony conviction.

The report highlighted a troubling practice: When a cop in Cleveland confiscated a crack pipe from someone on the street, prosecutors treated the cases as a felony, even if there was only residue on the pipe. In contrast, suburban prosecutors kept those types of cases in municipal courts as misdemeanors (mostly as a cost-saving move, according to one judge).

Cleveland mayor Frank Jackson later announced that the city would no longer treat these cases as felonies.

Mason has taken a different approach to reform concerns and requests. In 2003, the debate over crack-pipe cases led to a clash between prosecutor Mason and Judge Burt Griffin, now retired. When Griffin instructed a grand jury to consider that suburban courts were treating the crack-pipe cases as misdemeanors, Mason called for the disbanding of the grand jury and argued to the Ohio Supreme Court that Griffin had shown disregard for the law and Mason's office. Griffin told Scene last year that the battle was about control, a notion reinforced by a Cleveland-Marshall College law professor Phyllis Crocker, the foreman of the grand jury who received Griffin's instructions.

"The lesson I learned, intellectually and emotionally, is the depth and tenacity of the prosecutor's assumption that he does control, and has the right to control, the grand jury process," said Crocker in a law-review article about her experience. The Ohio Supreme Court eventually ruled in Grffin's favor.

In October 2008, The Plain Dealer published a two-part series that highlighted apparent injustices. The series, written by Pulitzer Prize-winning journalist Bob Paynter, examined hundreds of low-level felony drug cases in Cuyahoga County and concluded that whites were 55 percent more likely to get misdemeanors than blacks charged with the same crime. Whites also had a better chance (35 percent) of receiving drug treatment instead of jail time.

Though lauded by reformers, the series drew a strong reaction from Mason, who went on the offensive. In a Sunday editorial piece with the headline "Race not a factor in prosecutions," Mason ripped Paynter, saying the veteran reporter "got it wrong — very wrong." Mason said the series was riddled with inaccuracies and failed to touch on many variables that went into sentencing.

Paynter took a buyout from his job the day after Mason's op-ed ran. He declined to comment for this article, but has defended his reporting.

When The Columbia Journalism Review, a trade publication, criticized Plain Dealer editors for not sticking up for Paynter, Mason chastised CJR for not calling him for his side of the story. "We would have reviewed this article with you just as we did with the Plain Dealer editors and staffers," wrote Mason to the CJR (seemingly hinting at behind-the-scenes pressure on the PD to tell the story his way). "Unfortunately, the benefits that could have resulted from this series were diminished by Paynter's shoddy reporting."

But for all his ranting a year ago, Mason has shown little sense of urgency in even getting this new round of studies under way, let alone implementing policy changes.

And so the disturbing perception of racial unfairness persists. Either minority individuals are more criminal by nature, or there is something about the administration of justice that creates a disparate racial effect.

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