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The police officer stopped 18-year-old “Michael” as he pulled out of a central Wisconsin bowling alley one day in 1997, driving an old model Chrysler New Yorker Fifth Avenue.
“Where’s the pot?” asked the officer, who had been tipped off to Michael’s bag of marijuana.
Michael handed over the eighth of an ounce of cannabis he was carrying — enough for about seven joints — and the officer booked him for marijuana possession.
The officer also asked where Michael worked. He was on “Christmas layoff” from his job at a window factory, expecting to return to work after the holidays. But Michael soon received a letter notifying him that he had violated the company’s drug-free policy. He lost his job even before he was convicted.
Michael was sentenced to 18 months of probation and a six-month driver’s license suspension for misdemeanor marijuana possession. It set off years of consequences, including what Michael described as “a life of petty crime.”
He asked that his identity be shielded in this story — Michael is a pseudonym — because he fears the social and professional stigma of having criminal convictions.
“The record,” he said, “just follows you forever and ever and ever.”
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Twenty years after that fateful event, Wisconsin’s governor would like to change the laws that led to Michael’s arrest. Gov. Tony Evers favors decriminalizing the possession, sale or manufacture of 25 grams or less of marijuana — about seven times more than Michael had at his 1997 arrest.
In fact, Evers would like to eliminate all penalties — including fines — for possession under 25 grams. That plan is unique; according to an April report from the Wisconsin Policy Forum, a nonpartisan organization dedicated to researching and evaluating policy statewide. All of the 13 states that have already decriminalized, but not legalized, marijuana impose some penalty — usually a fine — for possession.
The move comes as a growing swath of Wisconsin’s population favors legalizing or decriminalizing marijuana for at least some uses. Last year, voters in 18 Wisconsin communities passed non-binding referenda calling for legalization or decriminalization. But the Republican-run Legislature eliminated Evers’ decriminalization plan when it passed the current two-year budget.
Across Wisconsin, there were more than 17,000 arrests for marijuana possession and more than 1,800 arrests for marijuana sales in 2018, together accounting for 61% of the state’s drug arrests for the year, according to data from the Wisconsin Department of Justice.
The consequences of those arrests can be long-lasting. Arrest and conviction records can make it harder to get jobs, professional licenses, housing, financial aid for higher education and government assistance. Felony convictions can bar a person from serving on a jury or, in some states, voting.
The American Bar Association’s National Inventory of the Collateral Consequences of Conviction lists 641 negative consequences of nonviolent drug convictions. A U.S. Government Accountability Office review found that more than three-fourths of them “can potentially last a lifetime.”
Under Evers’ plan, Michael could not be arrested for the eighth of an ounce of marijuana he was carrying — 3.5 grams. Rep. Melissa Sargent, D-Madison, introduced a bill that would go further by legalizing, regulating and taxing marijuana for all adult uses. If full legalization were to pass, employers like Michael’s would be barred from firing employees for marijuana use outside of the workplace.
That is because Wisconsin’s Fair Employment Act bars discrimination based on “use or nonuse of lawful products,” said Jim Chiolino of the Department of Workforce Development’s Equal Rights Division. It is like cigarettes, he explained: “It’s a legal product. They can say, ‘You can’t use it on my premises,’ but they can’t discriminate against somebody who uses cigarettes.”
Convictions bring housing barriers
Megan Osowski is homeless services program director at the Tenant Resource Center in Madison, Wisconsin, a nonprofit organization that aims to improve the relationship between tenants and landlords. She said she regularly sees clients with criminal records get turned down by landlords, especially at the big rental companies where the potential tenant does not get to meet the decision-maker to explain his or her record.
In many places, a criminal record can also render a person ineligible for government-subsidized housing. The city of Madison’s Community Development Authority performs background checks on applicants and can cite “criminal activity” as a basis for denial.
And for college students caught with marijuana or other drugs, a conviction can be costly. Those who are convicted of drug-related offenses that occurred while they were receiving federal financial aid will lose their eligibility for future aid, although they can become eligible again by completing a drug rehabilitation program.
There are other costs. While Michael was in college, he tried to rent a room at a local motel, which advertised student rates. “They had a big sign: ‘Student rentals, student rates,’ ” Michael recalled. But he was denied that rate, $560 a month, on the basis of his criminal record.
He was told he could pay the $1,700 standard rate. “I said, ‘Well, honestly, dude, if somebody was selling drugs, they would be able to pay the $1,700, and that — right off the bat — would tell you that they’re selling drugs. But here I am, trying to tell you that I’m a student, and I’m broke.’ ”
‘You’re almost told to break the law’
The arrest at the bowling alley was not Michael’s first offense. He had a felony on his record for fleeing the police when he was 16; he had a marijuana pipe in his pocket and feared arrest. But he said the misdemeanor marijuana conviction was actually a bigger barrier because it branded him as a drug criminal.
With that record, Michael struggled to find work. Because he had been fired, he could not use his past job as a reference. In Wisconsin, anyone, including employers and landlords, can easily check another person’s criminal record for free by visiting the Wisconsin Circuit Court Access website, commonly referred to as CCAP.
In rural Wisconsin, job-searching or working meant asking for rides or driving illegally.
“You’re almost told to break the law,” Michael said.
Michael bounced in and out of jail as his probation was revoked for new marijuana possession charges and for refusing to continue in-patient drug treatment, which he said cost him hundreds of dollars per day.
“I was told I should not worry about the cost and I should just concentrate on getting better,” Michael said. “I was the only one in the program classified with cannabis dependence; the other patients had severe alcoholism and other hard-core drug addictions. No one in the program could believe that I was only there for smoking marijuana.” His state income tax refund was garnished to pay the cost of the few days he was enrolled.
“It spiraled into a life of petty crime until I finally said, ‘Enough’s enough.’ Once you see my criminal record, you’ll be like, ‘Damn,’ because it just snowballs down. You can’t get jobs, you can’t get anything,” Michael said.
Michael’s ensuing convictions included car theft, marijuana possession with intent to deliver and manufacture or delivery of cocaine. He served a total of five years in prison before going back to school and eventually earning a marketing degree from a Wisconsin university.
Earlier this year, he started a new job where he puts his college degree to use. Michael, who now lives in Michigan, still uses marijuana, but now it is to treat HIV-related pain, nausea and loss of appetite. He uses marijuana in place of other, notoriously expensive, medications for HIV.
Some discrimination barred
Under Wisconsin law, some types of discrimination based on criminal record are illegal. Wisconsin’s Fair Employment Act allows refusal to hire on the basis of conviction only if the conviction is “substantially related” to the particular job.
An employer hiring a clerk in a retail store, for example, can legally discriminate against someone with a conviction for theft, Chiolino said.
“Drug offenses fall into what I call a gray area,” said Kori Ashley, a staff attorney for Legal Action of Wisconsin’s Road to Opportunity Project. “That language — ‘substantially related’ — it’s not defined in the statute, and so employers get a lot of discretion in determining what that really means. And drug offenses are prime for an employer being able to even tangentially link it to a type of employment, whether it’s working with children or working in a manufacturing company or even in customer service.”
Chiolino argues that the rules are not so fuzzy, and that legally, having a drug charge should not affect most people’s eligibility for employment. “Yes, there are gray areas that we would have to decide on a case-by-case basis, but generally speaking, if somebody has a conviction for possession of a narcotic that’s illegal … it’s not going to be related to lots of jobs,” he said.
In 2018, 294 complaints alleging employment discrimination based on conviction records were filed with DWD. Of the allegations that were resolved that year, probable discrimination was found in only about 22%. An additional 17% of the allegations were dismissed after the parties reached private settlements. The rest either were dismissed or were found to have no probable cause of discrimination.
Struggling to find a place
In the Wisconsin rental market, people with criminal records are unprotected: It is legal in the state to refuse to rent to someone because of his or her criminal history. Arrest and conviction status were once protected categories in Madison and Dane County, but now, because of a pre-emption passed by the Legislature in 2011, they are legal grounds across the state to refuse a rental.
“I find as soon as somebody has one possession charge, it gets significantly harder to find a place,” Osowski said, adding that it is not always clear why the landlord is denying a person’s rental application.
Landlords in Madison were once required to disclose the reason for their refusal, but that is no longer the case.
“If you apply to most kinds of subsidized housing … they’ll give you reasons, they’ll check the box. And I’ve had people (landlords) check that criminal history box for anything,” Osowski said.
In 2016, the U.S. Department of Housing and Urban Development issued recommendations for landlords on how to consider applicants’ criminal records so as to avoid indirect discrimination. Landlords could be sued under the Fair Housing Act only if their consideration of criminal records can be shown to have a discriminatory effect under one of the protected classes: race, color, religion, sex, disability, family status or national origin.
Convictions for marijuana possession exact a steep price, said Vincent Southerland, executive director of the Center on Race, Inequality, and the Law at New York University’s law school.
“The consequences are pretty significant, affecting some of the most important aspects of somebody’s life, like their housing, education and employment,” Southerland said. “You know, those are pretty much the building blocks of a successful life. Talk about the punishment not fitting the crime. It’s a tremendous, life-altering change that’s permanent for a very temporary and fleeting criminal offense.”
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