Ohio’s county prosecutors are hoping to roll back some of the “tough on crime” laws enacted in the 1980’s and ’90’s. Among their recommendations are a reduction of some non-drug crimes from felonies to misdemeanors and greater flexibility for judges in sentencing.

Ohio’s county prosecutors are recommending major changes to state drug laws, including the elimination of mandatory prison sentences for trafficking and possession of chemicals for the manufacture of drugs, except in the most serious cases.

The prosecutors also want to reduce several other non-drug crimes to misdemeanors from felonies, including assaulting a school teacher, administrator or school bus operator without physical harm; injuring a police dog or horse; illegal use of food stamps; and unauthorized use of a cable television or telecommunications device.

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John E. Murphy, executive director of the Ohio Prosecuting Attorney’s Association, said the changes are intended to counter the Strickland administration’s proposal to ease prison overcrowding by allowing inmates to accumulate seven days of “earned credit” per month by participating in programming. The credit would allow them to reduce their sentences — even if they’re serving definite or “flat” sentences — so they can be released earlier.

Bill Mason has committed to announcing who will handle gathering hard data on racial inequalities in the prosecutor’s office by February. This is the first step in a negotiation with community leaders to address the significant and real problems found throughout the Cuyahoga criminal justice system.

Ryan Miday, spokesman for the prosecutor’s office, would not comment on the selection process but said Mason hopes to make a decision by early February.

In late November, Cleveland City Council members, Mason and other players in the criminal justice system met for 3½ hours with local leaders in the black community to discuss racial inequalities observed in the system.

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Stanley Miller, executive director of the NAACP, emphasized the urgency in addressing the problem and offered Mason his office’s help in finding a solution.

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The study also will review referrals to diversion and treatment programs at the local and county levels, including data regarding the programs’ admissions and success rates by race, Mason said. And researchers will collect data on indictments, charges, pleas and sentences, as well as the rate at which each of the county’s 34 judges uses the alternative programs.

The group agreed to reconvene early this year and invite others – university professors, research centers, social workers, judges and attorneys – to participate in the discussion.

Key figures in Cleveland’s and Cuyahoga’s criminal justice system met Wednesday to seek solutions to disturbingly large racial inequalities.

All at the table agreed it is a systemic problem with severe consequences for a community. And all agreed that finding a solution to racial disparities in Cuyahoga County’s criminal justice system is a bigger undertaking than any one of their offices could handle alone.

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The discussion, which took place during a City Council Public Safety Committee meeting, focused on the statistical findings of a Plain Dealer analysis that drew upon hundreds of low-level felony drug cases from 2004 to 2007. The review found that white defendants were 55 percent more likely to get a misdemeanor than black defendants charged with the same crime. And white defendants were 35 percent more likely to receive treatment as an alternative to conviction.

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Stanley Miller, executive director of the NAACP, said the entire system shares the blame for the disparity and likewise should share the responsibility for finding a solution.

“The justice system is broken, and everyone’s trying to point the finger at someone else,” Miller said.

“These types of issues have a very short shelf life. If we don’t address it today, it will pass away from our consciousness.”

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Common Pleas Judge Timothy McGinty said he and other judges have petitioned the Supreme Court for years for a method by which to keep demographic records of criminal cases on the county docket.

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“But we’re not collecting the critical data that could level the playing field – length of sentences, age, gender, color and socioeconomic aspects. Transparency creates accountability.”

Frank Jackson takes a big step toward balancing Cleveland’s drug laws with those of surrounding communities. People found with drug paraphernalia with traces of crack or heroin will get addiction treatment rather than a felony.

The goal is to get addicts treatment without saddling them with a felony that could impair their ability to turn their lives around, Jackson said.

He warned that the new protocol will not provide a free pass to criminals, and police will still aggressively pursue drug arrests. The new policy gives them a chance to treat their addiction, Jackson said.

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Presently, drug abusers face felony possession charges if caught with trace amounts of drugs in a crack pipe or heroin syringe. Community activists have said for years that similar cases from the suburbs are charged as misdemeanors, leading to inequity in how justice is delivered.

Cleveland is the only large city in Ohio that charges drug-paraphernalia cases as felonies, Jackson said. About 6,000 people face felony-drug charges every year in the city.

Jackson expects 1,200 to 1,500 of those cases to fall under the new policy. Robberies, thefts and burglaries should drop because people in treatment aren’t stealing to fuel their addictions, he said.

“This is about helping people and stopping the behavior that is destroying our neighborhoods,” Jackson added.

The city will adopt a progressive system, similar to a three-strike law and drunken-driving laws.

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[Jackson] stressed that for years community activists have argued that low-level drug offenders — regardless of race — need treatment, not felony records.

Drug and alcohol addicts come from all races and communities, Jackson said. He stressed the new policy is not only directed at Clevelanders but also the suburban addicts who scour the city for dope.

Court systems need to act now on racial disparity.

So flagrant are the racial inequities in sentencing it seems as if our criminal judiciary slept through the civil rights movement.

White defendants were 35 percent more likely to receive treatment in lieu of conviction. Out-of-town and suburban whites were at least 77 percent more likely than black defendants to walk away with misdemeanor convictions.

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The Ohio Supreme Court, meanwhile, must order judges to collect racial data pertaining to sentencing — a responsibility Ohio’s highest court has ducked since a 1995 state law directed it to do so.

Last year, Chief Justice Thomas Moyer agreed that the collection of race data was a worthy goal, “but I’m not sure how we achieve it.”

Start by demanding that judges in all 88 counties comply with state law.
That would be the first step to putting an end to this injustice.

Jackson, Mason, and Cleveland City Council’s Public Safety Committee to take serious look at racial injustice in drug sentencing.

None of us can continue to remain blind to the racial disparities in the way felony drug cases are handled from our streets to our courtrooms.

No more claiming the discrepancies are merely anecdotal in nature. We have proof.

In Cuyahoga County, white people are more likely to have their felony drug charges reduced to misdemeanors – or to get treatment as an alternative to any conviction – than black people charged with the same crime. Black people are 12 times more likely to go to prison on drug charges than a white person.

The NAACP, the American Civil Liberties Union, Citizens for a Safe and Fair Cleveland and the United Pastors in Mission want action.

Cleveland Mayor Frank Jackson has met with the police chief and safety director. He is expected to announce a policy decision about the matter any day.

Councilman Kevin Conwell told me that his Public Safety Committee would hold a hearing about it on Nov. 19 at 9:30 a.m. in council’s committee Room 217.

Cleveland City Council moving on race disparity.

City Council’s Public Safety Committee will hold a hearing Nov. 19 on disparities between sentences imposed on white and black criminals in Cuyahoga County Commons Pleas Court.

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The newspaper found that white defendants tended to fare substantially better than their black counterparts — even when facing virtually identical charges.

The council session will be at 9:30 a.m. in council’s committee room at City Hall.

Ohio Supreme Court case filed by Bill Mason against a county judge trying to clean up the drug law racial disparity, may show that Mason has no intention of taking action.

In May 2003, a year after Mason’s meeting with the NAACP (see main story), Cuyahoga County Common Pleas Judge Burt Griffin, a 30-year veteran of the bench, was getting ready to impanel a new grand jury. According to court documents (he declined to comment for this story), Griffin felt compelled to tackle the high volume of “crack pipe” felony indictments. He set aside the usual legal texts from which he read jury instructions, and wrote 10 pages of an original charge. Much of it was pro forma, but what Griffin said about crack pipe cases was unprecedented in Cuyahoga County.

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Finally, Griffin explained in great detail the controversy involving crack-pipe cases. Defendants caught with these could be charged with either possessing a drug abuse instrument – a misdemeanor – or drug possession and trafficking, a fourth- or fifth-degree felony (assuming crack residue is found on the pipe). He then told the grand jury about “differential prosecution,” and how other jurisdictions in Ohio often treat such cases as misdemeanors.
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In court documents filed later, Griffin explained that he was “trying to lay the foundation for possible policy reform” – the very thing Mason had pledged to do with black leaders 12 months earlier. He continued: “An honest exploration and development of the facts surrounding the apparent differential prosecution of crack-pipe cases in Cuyahoga County might lead both to a reduction of the burdens of minor drug prosecutions,” Griffin wrote to the court, “and to greater confidence by members of the African-American community in our criminal justice system.”

Mason was outraged. He called Griffin’s assessment “a bald allegation with no support of any kind,” and accused the judge of a “stunning … disdain for the prosecutor’s office,” according to affidavits and motions filed immediately against Griffin. The judge should be disqualified, Mason told the court, for harboring prejudice against prosecutors and for incorrectly instructing the jury to use a different burden of proof for crack-pipe cases. Such a statement, Mason wrote, “is an act to prevent the prosecution of felonies under Ohio law.”

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The matter was finally settled in Griffin’s favor when the court found no grounds for bias or prejudice. Griffin retired in 2005. Similar instructions have never again been issued by any judge.

Earlier this year, an ACLU study concluded that the racial disparity in Cleveland’s treatment of crack-pipe cases versus those in the suburbs was, in fact, real – far from a “bald allegation with no support of any kind.”

Cuyahoga County Prosecutor, Bill Mason, has had years to address the racial disparity in drug laws. Meaningful action is overdue.

Mona Lynch is a professor of criminology, law and society at the University of California, Irvine. Earlier this year, she studied aspects of Cuyahoga County’s criminal-justice system as part of the ACLU’s national project on racial disparities in drug arrests. At Scene’s request, Lynch also read the
2005 report. She found Mason and JSR’s inattention to open discovery surprising.

“It would have been very low cost to implement,” says Lynch, “and perhaps provided some cost savings as well. There are important justice and efficiency reasons to have open discovery.”

In September, a new committee headed by Judge Friedman proposed another course: Within one week of the first pretrial conference, prosecutors would give defense counsel a “discovery packet” containing all police reports, statements and criminal records of defendants, witnesses names and addresses, and any lab and hospital reports. Prosecutors could decide to redact any information in any of these documents they deemed sensitive. Defense attorneys could still ask a judge to unmask it, after showing “good cause.”

That’s still not enough prosecutorial advantage for Mason.

A few weeks ago, Mason told Plain Dealer columnist Regina Brett – who’s been flogging the prosecutor over open discovery – that he’s “not against open discovery” and is working with the Ohio Prosecuting Attorneys Association on a statewide proposition.

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In 2000, Human Rights Watch documented just how disproportionately the so-called war on drugs targets African Americans. At that time in Ohio, blacks made up 11 percent of the general population but 70 percent of the prison population. Most were locked up on drug-related charges.

In early 2002, the Rev. Marvin McMickle got to see why. The pastor of Antioch Baptist Church and civil-rights activist spent four months serving as foreman of a Cuyahoga County grand jury, the body that issues felony indictments. He left a troubled man. A majority of the defendants accused of low-level drug felonies were black Clevelanders – and most were addicts, not dealers.

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“If you get a [fifth-degree] felony at age 20,” McMickle told Scene this July, “then 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.” McMickle and the pastors wanted to know: Would Mason tackle the random police sweeps and subsequent charging decisions that were putting so many black Clevelanders on the path of felony convictions?

According to a 2002 Plain Dealer article, Mason promised back then to look for ways to reduce the number of minor drug-possession arrests (dubbed “crack-pipe cases”) being charged as felonies. He would go into the community and meet with police officers and municipal judges who were sending these cases to his office and try to find a systematic solution to the pastors’ and NAACP’s concerns.

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The number of Cleveland’s felony drug-possession arrests has remained steady – 5,500 a year since 2003, nearly 70 percent of the county’s total – according to statistics compiled by local and federal agencies.

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Former county judge Peggy Foley Jones, who served until 2005, says Mason’s office seldom reduces charges before trial. “That’s what’s clogging up the system,” she says. “You try a crack pipe case for two days.” While many such cases are settled during trial, the snowball of court time and costs has already been set in motion.

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For the last several years, annual grand jury costs for jurors, court personnel and prosecutors have totaled nearly $1.5 million.

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Citizens for a Safe and Fair Cleveland was formed in early 2007 to focus on the impact of law enforcement, judicial equity and community relations.
James Hardiman, CSFC’S co-chairman and first vice president of the Cleveland NAACP, has called low-level drug arrests charged as felonies “a crisis in our community.”

Earlier this year, CSFC partnered with the ACLU, which was already looking at racial disparities in sentencing and drug arrests nationwide. The ACLU has focused on Cuyahoga County, with research conducted by Mona Lynch, the criminology professor from UC, Irvine. Lynch’s conclusions were released in July and titled, “Selective Enforcement of Drug Laws in Cuyahoga County.”
Lynch scrutinized grand jury reports and demographic data to document what many had long suspected: There is a racial – or at least a geographic – disparity in how the county prosecutes drug cases. Cleveland drug suspects are more likely to be charged with felonies in county courts, while suburban counterparts usually face only misdemeanors in municipal courts.

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Peggy Foley Jones, a Republican, served on the bench for 14 years until losing to Peter Corrigan, a candidate backed by Mason in the 2004 election.
(Of the five separate bar associations that make up the Judicial Candidates Rating Coalition, three ranked Jones as “excellent” and two reviewed her as “good” in 2004. All five rated Corrigan “good.”) Jones says that many sitting judges find at least an appearance of impropriety in Mason’s political behavior. “Mason is in a powerful position in the county Democratic party,” she says. “He [influences] who gets endorsements, who gets to run. So that affects judges’ thoughts, even if it’s just a perception.”

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“Mason is at the heart of county Democratic politics,” says Chris Link, the executive director of Cleveland’s ACLU. “That isn’t a good thing because you then don’t really have an independent prosecutor. It’s very difficult to be critical of people in your own party.”

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After news reports revealed his refusal to debate his opponent at the City Club – he hadn’t even responded – Mason finally agreed, and he and Annette Butler met there on Monday.

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She brought up recent media coverage of racial disparity in crack-pipe cases, and two questions from the audience dealt with the issue. Oddly, Mason’s response seemed to suggest that the problem was news to him. “I find it disconcerting to all of us involved in the justice system. I will say
this: I will go out and I will ask for funding to look at this issue very strongly, to have it analyzed.”

He neglected to mention the studies that have already confirmed the disparity or the fact that local community leaders brought it to his attention six years ago.

Change is needed at the Justice Center.

Why do so many black people end up there with felony charges?

Two newspapers have answered that question in a way that should shame us into action.

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In Cuyahoga County, black people … are 12 times more likely to be sent to prison on drug charges than a white person.

The Call & Post, Ohio’s black newspaper, ran a story last week about a new report released by Citizens for a Safe and Fair Cleveland. “Selective Enforcement of Drug Laws in Cuyahoga County, Ohio” shows that whites and blacks use drugs at similar rates but blacks are more likely to be convicted of felony charges.

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“It can no longer be denied,” Rev. Marvin McMickle told me. “There is a double standard.”

On Monday, Cuyahoga County Prosecutor Bill Mason said he would look for solutions. McMickle would like one of them to be more black prosecutors.

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It’s time for a clear-cut plan of action that includes the mayor, the police chief, the law director, the prosecutor, the judges and the lowliest beat cops on the street. It’s time they all operate with both eyes open.