Young caucasian man wearing sweater arrested for possession of illegal marijuana drugs holding a bag of marijuana and a green cannabis leaf.
Republicans in the Legislature have slowly begun approaching consideration of cannabis reforms, from reduced penalties to decriminalization to medicinal use — topics that may have more of a chance of coming up after the departure of anti-reform Senate Majority Leader Scott Fitzgerald, who just won a seat in Congress. Meanwhile, municipalities from Appleton to Madison are becoming far more proactive.
Local communities are taking steps toward ending the Badger State’s harsh prosecution and prohibition policies.
One of the most recent policy shifts came out of the city of Appleton on Oct. 21. In a 13-1 vote, the Appleton Common Council decided to reduce the fines for possession of an ounce or less of cannabis from $200 to $50, plus court fees. The fines grow to $100 for a second offense, and then to $150 for a third. However, as part of the newly minted policy, no mandatory court appearances are specified in the ordinance. Penalties related to paraphernalia, such as pipes or rolling papers, range from $5-$10 depending on the number of offenses.
Jay Selthofner, the founder and treasurer of Northern Wisconsin NORML, a pro-cannabis advocacy group, says a lot of factors went into the change. “A friendly city council” helped, says Selthofner, noting that Appleton, and the rest of Outagamie County, did not take part in the cannabis referendum back in 2018. “They talked about it but it didn’t get passed through. So the City of Appleton, not that it’s more liberal or conservative than the whole county, but some of the city officials thought it would be a good time to do it.” Meanwhile, the City of Madison has been exploring a decriminalization ordinance.
NORML also fleshed out where candidates stand on reform with their Smoke the Vote campaign. The organization gathered responses from about 95% of candidates running in Wisconsin regarding their stance on legalization. Local, state and presidential candidates are included in the survey, so people could see where their elected officials and candidates stood prior to the election.
“It’s always nice when there’s news happening,” says Selthofner, “then the city council can talk among themselves and get these ideas going. We always say that if you have a friendly city council, or those kinds of friendlies in the committee, it just makes reform that much easier. Because you’re not fighting an uphill battle from the beginning.” If nothing else, Selthofner feels the move shows “marijuana is becoming lower on the totem pole as far as [law enforcement] priorities. Even for the city.”
That sentiment was echoed by Todd Thomas, Appleton’s chief of police. “The enforcement of this ordinance is not a high priority,” Thomas wrote in a document submitted to the council regarding the policy change. “But it is important to address the behavior to intervene in other potential issues. We share the philosophy our progressive criminal justice partners have: our goal for minor offenses is to give them the incentive to get an assessment so we can divert them from the criminal justice system. The focus on diversion and education for minor offenses has been in place for years, for both municipal citations and criminal referrals.”
While local policies around cannabis enforcement are easing, little change is coming at the state level. As Rep. Evan Goyke (D-Milwaukee) points out, this gives municipalities wide discretion in how they choose to deal with cannabis.
Broad discretion on how people are charged
“It’s still discretionary whether someone is charged criminally, at the municipal level, or cited at the municipal level,” Goyke, who is a former public defender, told Wisconsin Examiner. “You might have statements that are made. You might have the DA’s office have policy, but that doesn’t actually mean that they can’t charge it, or that it won’t ever be charged. That would actually require a state-law change. The police and the DAs have discretion to do a six-and-a-half month misdemeanor, or a three-and-a-half year felony for a second or subsequent offense.”
Appleton lowered its fees; but it’s not the first community to do so. Sturgeon Bay’s common council voted 5-1 in late 2019 to eliminate the fines for cannabis possession altogether for people who have small amounts in their own homes. Because cannabis is still illegal on the state level, fines for having less than an ounce of cannabis in public total $50 for the first offense, and $100 for all following incidents. In both Appleton and Sturgeon Bay, city officials focused on making sure the cannabis fines were not disproportionate when compared to other citations, such as laws around public alcohol intoxication.
Goyke feels that a good and often overlooked target for Badger State reform is to eliminate the felony penalty for cannabis possession. “I’ve put a lot of my energy into just trying to get rid of the felony,” he says. “Because there is a big difference between a misdemeanor and a felony. And could we just stop sending people to prison for these cases?”
Refuting the narrative that prison convictions for cannabis are rare, Goyke notes, “If somebody is on paper for three-and-a-half years on marijuana possession, it’s not uncommon that they would have a fairly lengthy jail or prison sentence imposed and stayed. And the problems with our supervision system are well documented in Wisconsin. If they go to prison on a technical violation, I still trace that back to the amount of exposure to prison they faced on the marijuana conviction.”
In short, while a person may be revoked and sent to prison for a probation violation, “it was the marijuana charge that had that consequence hanging over their head,” said Goyke. “I just think that it is unnecessary that it be such a large penalty for second or subsequent marijuana possession.”
Bipartisan paths forward, and mixed GOP messaging
“It’s time,” asserted Selthofner. “Should Wisconsin want to address marijuana reform? It’s something that could very easily be done. It’s supported by both parties, it’s supported by the public defender’s office.” Although local municipalities have shifted their own policies, Selfthofner acknowledges that “city officials, obviously, are going to look for state leadership to do something on the issue. And when they don’t act, it’s going to force the city to do something.”
Gradually, interest in medical cannabis and lowering existing penalties for possession has been growing among Wisconsin Republicans. Rep. Shea Sortwell (R-Two Rivers) and Rep. Mary Felzkowski (R-Irma) have emerged as two leading voices exploring the possibility of reform. As Democrats like Melissa Sargent (D-Madison) pushed medical and recreational legalization bills, Felzkowski introduced her own take on the legislation. Unlike Sargent’s bills, Felzkowski’s proposals would have limited cannabis use to medical only, to be taken in a liquid, pill, or tincture form. Her bill also proposed establishing a Medical Marijuana Regulatory Commission to oversee Wisconsin’s fledgling industry.
Sortwell introduced a bill to help decriminalize possession of 10 grams or less of cannabis. On the other side of the aisle Rep. Shelia Stubbs (D-Madison) had a similar decriminalization bill which raised the legal limit to 28 grams. Generally speaking, Dane County doesn’t regard possession of an ounce or less of cannabis as a priority.
In Wisconsin Examiner’s article on cannabis reform published on April 20, Felzkowski discussed why she designed her bill the way it was. “All I really wanted this session was to get a hearing on it,” she explained. “So that’s what we’re still hoping for.” With Senate Majority Leader Scott Fitzgerald on his way to Congress, some legislators feel that the state GOP attitude toward cannabis reform may change. Goyke, however, wonders how the Trump Administration’s law and order rhetoric might stifle those hopes.
Goyke says much is dependent on how the next president and his administration handles the issue. “It is unfortunate, in my mind, very broadly on the issue of criminal justice reform that you’ve got a very interesting moment in the Republican Party.” After watching the last presidential debate, Goyke says, “you had President Trump talking about both passing the First Step Act and talking about law and order, and his sort of rule-of-law rhetoric that we hear a lot about. So I don’t know where Republicans will land after Nov. 3. In a lot of state elections and campaigns, we’ve seen tough-on-crime narratives play fairly front and center in terms of either an attack against the Democratic candidate or in support of the Republican candidate.”
From the continued use of the Kenosha unrest as a club by conservative candidates to the attacks on Madison and Milwaukee, Goyke finds these narratives concerning. “That makes me nervous that Republicans are putting themselves in a position where they won’t be able to support reforms,” he says. “If, on the other hand, if those campaign priorities are rejected and those Republicans running on the tough-on-crime agenda lose, certainly it is a signal to Republicans more broadly that people are not responding to that message.”
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Goyke sees the conversation around cannabis reform changing going forward. “While we could isolate marijuana policies and penalties, it’s likely to be seen through that broader criminal justice system view. If the Republicans view their path going forward as tough on crime, and they don’t want reform, it’s unlikely that they’re going to engage in meaningful marijuana reform conversation. I don’t see how we can do one if they’re not doing the other. Maybe on the medical side, maybe medical marijuana can run independent of criminal penalties.”
With significant funding for police, both federally and locally, directly dependent on the drug war, cannabis legalization could be used as a major policy tool to accomplish activists’ goal to “Defund the Police.”
However, Selthofner notes, some legalized states direct tax revenues from cannabis back into local law enforcement. “Marijuana reform should be included in this whole conversation on what we should do with police and how we should fund them,” said Selthofner. “It should be addressed at all of these different proposals these gentlemen are talking about at the state level.”
There are a few criminal justice reform plans bumping around Wisconsin’s Capitol. Selthofner says, “I don’t see marijuana reform listed in any of them at this point. They just don’t get it at the state level. Unfortunately, they just don’t. Or else this would be the perfect time to include it. Even if it is just decriminalization, where we’re not kicking in people’s doors for marijuana anymore.”
Nevertheless, as Felzkowski and Selthofner say, it’s important to put the issue on the table. “There’s a ton of room from one side to the other side where we could be improving our criminal justice system and how we handle marijuana specifically,” says Goyke. “It’s way past time that Wisconsin has a debate. That policymakers actually get engaged. That we have hearings, that we take votes. One of the challenges is all of these ideas, from one end to the other — they’ve all been introduced as legislation. But we haven’t had public hearings; we haven’t had committee votes; we haven’t moved the legislative process forward. That’s what really needs to happen. Let’s go from the drawing board, but let’s start making some of these policies real.”
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