We can do more

Over the years, Girard Thomas has gotten used to being stopped and questioned by police.

As a Black man, he feels like law enforcement sees his skin color and pegs him as an “easy target.” The threat of being harassed or arrested is nearly constant.

“It’s always there, every time you step out your front door,” says the 35-year-old Madison resident and father. “It can happen anywhere and at any time.”

The interactions he’s had with police range from an incident a few months ago, when he was questioned in front of his apartment while getting something out of his car, to another from a couple of years ago, when he was pulled over and immediately had “six or seven unmarked squad cars surrounding me when I was just going to a friend’s house.”

Thomas says he always complies with an officer’s requests when stopped, which, he estimates, happens every four to five months. When he hands over his ID, law enforcement officers often seem surprised. “After they run my name, they see I don’t have a record — I guess that’s rare,” he says. “There’s not that many of us [Black people] around here, and many of us have spent some time sitting downtown in the county jail.

“Why can’t it be that I don’t have a [criminal] record?” he asks. “Why is the expectation that I’ve spent time in jail? Just because I’m Black?”

It’s not just the excessive encounters and traffic stops — endured not only by him but by his Black friends and family members, too — that bother Thomas. It’s the possible outcome, which could include convictions and sentencing. “That’s when the cycle starts,” he says. “Once they have one of us in the system, they want to keep us there.”

There’s also the difference in prison time that Black residents face when compared to his white friends with similar convictions. “They’re sending us up the road [to prison], specifically Black men, for longer periods of time,” he says. “But if it’s somebody who’s white, they cut that time in half.”

The racial disparities that Thomas has witnessed over his lifetime go far past anecdotal experiences. And their consequences extend beyond courtroom decisions. For many Black and brown people in America, these disparities have ended in death at the hands of police.

In response to years of differential treatment and numerous police-related and in-custody deaths of people of color, the Black Lives Matter movement has gained undeniable momentum over recent years. Nearly every time an unarmed person of color was killed or shot by police, protesters and organizers took to the streets with prolonged demonstrations, demands for change and civil unrest.

Perhaps no incident had a greater impact than the death of George Floyd in Minneapolis in May 2020 — a killing that set off the largest and most intense protests in U.S. history. Three months later, here in Wisconsin, large protests and days of unrest continued following the shooting of Jacob Blake in Kenosha. And before him, there were multiple marches protesting the police-involved killings of Tony Robinson in Madison in 2015 and Sylville Smith in Milwaukee in 2016, among others.

Still, despite — or perhaps because of — these many instances in which people of color are contacted, convicted and killed by police more often than their white counterparts, Thomas has come to accept it. “It’s happened so much, it’s expected now,” he says. “It feels typical.”

Disparities By The Data

Mathematically speaking, however, it shouldn’t be “typical.”

Based on population counts by race, the wide statistical disparities that people of color face with law enforcement and in the criminal justice systems in Madison, Dane County and Wisconsin should not exist.

People of color — Black people in particular — are far fewer in number than white people, yet they are arrested and incarcerated at much higher rates.

Overall, the data on these disparities suffers from a lack of uniformity and tracking across law enforcement divisions and through various departments and branches of the criminal justice systems.

That said, some research groups, government committees and news media have unearthed figures and statistics that shed flashes of light on the disparities.

One of the earliest came from the 2009 Dane County Task Force on Racial Disparities in the Criminal Justice System. The task force’s report found that Dane County was one of “the nation’s top five communities with the highest racial disparity” and that “Blacks in Dane County were roughly 100 times more likely to be imprisoned on a drug sentence than whites in 1999-2002 … and about 23 times more likely to be sentenced for a non-drug offense.”

That report also quoted an ex-offender saying that the disparities are so prevalent that “Black boys and men … expect that, at some point, they will go to jail or prison and it has become a ‘rite of passage.’ ”

Years later, in 2013, the bombshell Race to Equity report was released, detailing drastic racial disparities in categories including education, poverty and unemployment, as well as criminal justice. It revealed that the disparities begin in childhood and that Black juveniles in Dane County were six times more likely to be arrested than their white counterparts. Black adults were eight times more likely to be arrested than white adults.

Over the years, a smattering of other local statistics and snapshots have come to light through committee findings and news reports. Black people comprised only 7% of the city and 5% of the county population in 2018, but about 43% of those arrested locally were Black and some 46% of inmates in the Dane County Jail were Black. In 2019, Black residents who were arrested often faced more charges (4.7 on average) than white residents (3.5). Black youth incarceration rates increased 100% more than white youth rates from 2001-2015. Once sentenced to a local detention center, Black children averaged a 35% longer stay than white kids.

More recently, on the statewide level, disparities in sentencing were also found to disproportionately affect Black residents in Wisconsin.

Last February, an investigation by the Milwaukee Journal Sentinel discovered that the State Supreme Court had commissioned — and then promptly shelved — a 23-page report that found that Black men convicted of felonies have a 28% greater chance of ending up in prison than white men in Wisconsin. Further, the report revealed that Black men receive prison time at even higher rates for more serious felonies.

Another report, using 2017 data, revealed that since 1978, the Black incarceration rate in Wisconsin has increased 193% and that 41% of state inmates were Black, even though Black residents make up less than 7% of the state population.

Wisconsin also has had a reputation for having one of the most racially disproportionate incarceration rates since 2013, when it was found to have the highest percentage of Black prison inmates in the country with a 13% incarceration rate for Black men.

In May 2021, a report compiled for the Dane County Criminal Justice Council found that the county’s incarceration rate for Black people is more than twice the national rate. Locally, Black people are arrested 11 times more often than white people. About 10% of all Black people are arrested at least once a year in Dane County — 1% for all other racial and ethnic groups.

Although pulled from different sources and times, all of this data points to a damning conclusion: No matter what stage of the process — arrest, detention in a county jail, sentencing or prison population — or what age group, local criminal justice systems and law enforcement agencies treat people of color differently — and worse — than white people.

Multiple Systems

Though many use terms like “disparities” to describe the data and the outcomes for people of color in various systems that favor white people, others use a simpler and more blunt word to describe it: racism.

“We are a racist, white supremacist society,” says John Eason, an associate professor of sociology at the University of Wisconsin–Madison. “If you trace back through the history of the U.S., [there’s] the fact that the African American right to vote has to be ratified every 20-25 years [and] we’re still legally counted as ‘three-fifths’ of a human. … This is who we [as a country] are. This is who we’ve always been. How did we get here where we have the disproportionate rate of incarceration? It’s been this way literally since the 1800s, literally since the fall of slavery.”

Eason, who studies imprisonment, prisoner reentry and health care disparities across different communities, has lived in Texas, Arizona, North Carolina and Illinois. He calls Wisconsin “a fascinating laboratory [because of] the racial dynamics here [and] in Dane County specifically.”

As someone who’s academically studied the disparities here and across the country, however, Eason does think change is possible. “I do ultimately have hope because I think we can do better,” he says. “I think we have to do better.”

But Eason says that actually addressing specific disparities is when things begin to get complicated. “You can’t have one-size-fits-all criminal justice policy reform,” he explains. “[For] 20 years, I’ve been looking at this and it depends on where you are, what that reform looks like.”

Eason says he would first like to see an end to “crimeless revocation” — when someone is sent back to prison for violating a technical rule of probation rather than for committing a new crime — which would lower the prison population.

“The recidivism rate is just too high. We lead the nation in that and that’s where a lot of the racial inequality is, too,” he explains. “People can’t escape the system because of crimeless revocation.”

Further, Eason echoes the calls for a newer, smaller Dane County jail that have been discussed over recent years. “If we build a smaller jail, that’s 100 or 200 people less; that means we can only incarcerate so many people in this county,” he says.

With a smaller jail, law enforcement would need to rely on different diversion techniques, adds Eason. One idea for diversion that he finds promising is the recently proposed creation of a community justice center in Dane County.

“When someone’s having a mental health crisis, you can send out first responders who are trained to deal with them, with the police as the backup,” he explains. “So instead of people going to the police station, the police could take them to the center, which would be a front-end diversion.”

Further complicating any possible solutions, Eason adds, is that racial disparities and proposed reforms overlap and there isn’t just one department or bad practice to address.

“When we talk about the criminal justice system, the issue is that it’s multiple systems,” he says.

The Policing Problem

Among those multiple systems is the point of first contact with the public: local police departments — and especially the Madison Police Department — which usually bear the brunt of blame for racial disparities.

Shon Barnes knows that well.

Sworn in as Madison’s newest police chief in February, Barnes, the third Black man to serve in this role, has inherited a strained, complicated and contentious relationship between the city’s communities of color and his officers.

Rebuilding broken trust is one of his top priorities.

“As human beings, we fear what we don’t understand,” Barnes says, adding that police chiefs “haven’t taken enough time to explain to the community what we actually do and why we make the decisions that we make. We hide behind, ‘Well, this [is] under investigation’ or ‘No comment.’ I don’t want to be that kind of chief.”

While increasing transparency is one of his goals, Barnes says the community also needs to take steps with the police department to improve the relationship. “If our community is asking us to make a positive assumption about them, I would only ask that you make a positive assumption about us,” he says.

Regarding racial disparities, Barnes is skeptical and wants to take a closer look, because statistics don’t go deep enough. “My Ph.D. dissertation was in racial disparities, specifically around traffic stops. So, you know, I’ve read the articles about different regression models, and how do you get to the question at hand? And that question is, is there a statistically significant difference in these two rates? That’s the only thing a disparity will show you,” he says. “It won’t show you how people are treated. It won’t let you know the number of times someone was diverted. It doesn’t tell the whole story.”

Barnes says law enforcement can’t shoulder the entire weight of disparities simply because police are charged with showing up first.

“Yes, it is discouraging to see that if you’re a minority, you’re more likely to encounter a police officer. But there are a couple of reasons behind that,” he continues. “Is it a lack of resources? Is it antisocial attitudes and beliefs? Is it health care? What does public health look like? Is it education? … Many times our officers are called to a particular area or residence because someone needs help. We can never say that we’re gonna not help or [not] show up because of the demographics of that neighborhood.”

He adds: “We throw that word ‘disparities’ out there a lot. But [the data is] not a full and complete story. We have to dig a little bit deeper.”

As far as reforms that could be made on the police level, Barnes says he’s open to new ideas.

There are a couple of substantial changes already in motion.

Last September, the city’s Common Council voted to create a Civilian Oversight Board for the police department. The independent board will work with the community to review and make recommendations regarding use of force, hiring, training and changes or improvements to the complaint processes.

The city will also be hiring its first “police monitor” soon. The person will audit law enforcement policies and look for patterns and practices to recommend systemic changes to the city’s police and fire commission.

Barnes, who most recently served as the director of training and professional development for Chicago’s police oversight group, says he’s ready for these changes.

“We should certainly implement the citizen oversight board. I am not afraid of that,” he says, adding that there will be a learning curve involved. “As we begin to develop and understand what civilian oversight looks like in Madison, as we begin to develop and determine what the police monitor will look like in Madison, my only wish [and] requirement is that the [review] processes are fair and balanced. Because if it’s not, it will fail. And it will be a stain that will remain with our community for some time, and it will be difficult to fix.”

Barnes believes there will likely be more police reforms coming, either locally or on a federal level, related to the continued outrage over disparities and the increase in police shootings and killings of people of color as well as the conviction of Minneapolis police officer Derek Chauvin for murdering George Floyd.

He hopes that other reforms are holistic, not purposefully punitive.

“We got away from working together, we got away from seeing each other as humans,” he says. “Police reform is understanding that the police department cannot solve all the problems in our society, nor should they be the bearer of those problems.”

Statewide Changes

Leading the charge for police and criminal justice reforms on a statewide level is Rep. Shelia Stubbs, who has been a champion for such changes across several years and careers. Most recently — and prominently — she served as the co-chair of a state legislative task force charged with recommending policing reforms that proponents hope become state law soon.

But that task force wasn’t where she first encountered the devastating effects of racial disparities in law enforcement and criminal sentencing.

“I knew Wisconsin was in trouble when I was a probation and parole agent,” says Stubbs of the job she held from 1998 through 2005. “It was clear that we were incarcerating African American people much faster [than other races]. I didn’t need any study or report to know that — I saw it up close and personal.”

From there, she went on to mentor children of incarcerated parents and then became a pastor.

“There was no better awakening moment to these problems than being a pastor and then needing to go and visit a person that’s in jail or trying to be an advocate for them or their children,” she says.

After becoming a board supervisor in 2006 and working on criminal justice and race issues with the county board, Stubbs was elected as a state representative for the south side of Madison in 2018 after beating three primary opponents. But that race wasn’t without its own moment of racial tension.

While going door-to-door to canvass voters before the primary election that August, in a predominantly white west-side neighborhood, an unknown person called the police on Stubbs and accused her of selling drugs. When an officer arrived on the scene, she confronted and questioned Stubbs — who was wearing a nametag and carrying campaign literature — about what she was doing there. The officer also spoke with Stubbs’ then-71-year-old mother, before determining there was no illegal activity, apologizing for the disruption and leaving.

Recounting this incident at one of the police reform task force meetings last spring, Stubbs said she felt humiliated and outraged — and also fearful. “It was degrading,” she said at the meeting, noting that her then-8-year-old daughter was also there and witnessed the police encounter. “My family and I could have been killed.”

Because of that experience, as well as a multitude of others — her own personal and professional experiences as well as the anecdotes of her friends and neighbors and countless other reports of Black Americans being mistreated by police — Stubbs was glad to lead the state task force on police reforms and racial disparities.

Wrapping up its work last spring, the task force made 18 reform recommendations. In May 2021, Stubbs and her Republican co-chair, Assembly Majority Leader Jim Steineke, introduced seven legislative bills based on those recommendations, which include requiring all officers to wear body cameras, making crisis management training for police mandatory, creating new protections for officers who report observing another officer using excessive force, making it a crime for an officer to fail to intervene when a colleague is using excessive force, having the state Department of Justice collect data when so-called “no-knock warrants” are used by police and creating a statewide overview board that would review incidents of use of force.

The task force recommendations have been a bit of a political football because their creation comes after Republicans in control of the legislature rejected nine bills proposed by Democratic Gov. Tony Evers — many of which were similar to the task force recommendations. But Stubbs is hopeful.

“The task force shows that there are many areas in which Democrats and Republicans can still work together,” she says.

And, to some extent, they have. In late June, Evers signed four of the task force’s bills into law including a ban on chokeholds except in life or death situations; a requirement for reporting incidents when police use force; a mandatory posting of use-of-force policies online; and one that would create a community policing grant program.

While Evers and other Democrats voiced support for the new legislation, they also said it wasn’t enough and decried changes that Republicans were making to other bills still working through the legislature. Stubbs is hopeful that more police reform bills may still get passed in Wisconsin but also notes the political reality of the situation.

“[Democrats] don’t control the [legislative] houses. So it’s up to our Republican colleagues to place bills on the agenda,” says Stubbs. “We are basically in a waiting period.”

She’s also hopeful that the federal government and President Joe Biden can implement some national reforms.

“Having the federal government put some policies or practices in place and begin to start doing these [use-of-force] investigations helps every state that’s trying to move forward that way,” she says.

Addressing The Problem

All of the talk around racial disparities may not be beneficial, says Dane County Judge Everett Mitchell. It’s complicated and could have subtle, unintended consequences.

“We talk a lot about disparities, which we need to do. But it also makes it seem like the face of the criminal justice system is Black people,” Mitchell warns. “And as long as people see criminal justice as a Black issue, then you’ll never see any traction on change.”

Lost in the conversation about racial disparities is the reality that white people commit plenty of crimes, too.

“The dominant narrative is [that] it’s all of these Black and brown people who are in the criminal justice system,” Mitchell says. “The reality is the majority of the system in Wisconsin and elsewhere is made up not of Black people, but of white folks.”

One thing he believes could help lessen the disproportionate number of prisoners of color is spending more time and resources addressing children who run afoul of the law.

“I’m seeing traumatized children move from one system to the next,” says Mitchell, who became the presiding judge in charge of the Dane County juvenile courts in September 2020. “They end up in the adult system, with unaddressed trauma. [They have] mental health needs and [are now] being denied the educational resources they need to be competitive in the world.”

Mitchell, who is also a reverend, adds: “How we treat these children will ultimately determine what system they end up in. Either they will grow up to be independent and go to college and get a job or learn a trade, or they will end up in the prison system.”

Similarly, longtime community activist Brandi Grayson is tired of traditional attempts to fix racial disparities in criminal justice and other systems. She favors alternative approaches.

“We need to begin taking radical stances and investing in the things we know that work,” says Grayson, who is the founder and CEO of Urban Triage Inc., a nonprofit that empowers Black families and works to eliminate racism through education. “The data tells us that healthy communities are safe communities, meaning that for people who have their basic needs met, there’s lower crime rates and that poverty is directly related to criminality.”

Grayson says efforts to defund and shift financial resources away from police, instead placing control over communities in the hands of community members, have been proven to work elsewhere.

“We have cities across the country removing police from different areas and we see a drop in crime and arrest [there],” she says. “We know that paramedics who are trained to de-escalate situations have a positive impact on the community as opposed to calling the police. Over the last few years, we’ve been pouring money into policing and jails and everything is getting worse, it’s not getting better. We need to reallocate resources into programs and neighborhoods.”

Reform Through Repairing Harm

Aside from more recent headline-grabbing ideas like new legislation or the reallocation of police funding, there’s one local program that advocates say has been quietly achieving criminal justice reform and impacting racial disparities for a number of years: Dane County’s Community Restorative Court.

Created through the county board by Stubbs and law enforcement officials in 2015, restorative justice offers an alternative to traditional criminal court by offering low-level offenders the chance to meet with community members called peacemakers, each of whom receives 16 hours of training through the UW Law School Restorative Justice Project, instead of judges and lawyers in court. All parties then work with victims to find a resolution and determine a “repair harm agreement” for the crime. And when the program participants, who range in age from 17 to 25, complete the agreed-upon requirements set forth by the panel (which may include restitution or community service), the criminal charges and municipal citations are erased.

“This is giving young people a second chance,” explains Donnetta Foxx, a restorative justice program leader who previously worked for more than two decades in the state Department of Corrections. “This is giving them an opportunity to repair the harm and be able to move forward positively in their life without having a scar on their [criminal] record.”

In the six years it’s been in operation, the county’s restorative justice program has received more than 1,000 referrals from the Dane County District Attorney’s office and local law enforcement agencies. Of those, almost 800 offenders agreed to take part in the program and 94% of them successfully completed it.

Foxx notes that about half of those referred to the program are people of color.

“Madison is one of the worst in the country for racial disparities when it comes to the criminal justice system. That’s no secret,” she says. “And I think restorative justice particularly addresses that because a lot of the young people that we’re seeing — and who are getting second chances — are persons of color. [This helps them] not get trapped in the system.”

For those reasons, Foxx thinks the program should be expanded.

“We should increase the age group that we’re working with [and] increase the types of offenses that we can take in,” she says. “I’d also like to see it in the community more where we’re working with families or where there may be conflicts [and] use it as a preventative measure.

“This is a truly holistic approach to criminal justice reform,” she adds. “And we can do more.”

Steven Potter is a contributing writer for Madison Magazine and a senior producer with Wisconsin Public Radio. He recently graduated from UW–Madison, earning a master’s degree in journalism with a focus on multimedia reporting.