TIME SERVED

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.

dguevara@clevescene.com

This article appears in Dec 2-8, 2009.