A JustConversation on Discretion, Charging Disparities, and Racial Dynamics in Criminal Justice

by MOSES Publications | Mar 17, 2025 | Community Issues, Events, Information, JSRI Justice System Reform Initiatives, Newsletter, Racial Equity

A JustConversation on Discretion, Charging Disparities, and Racial Dynamics in Criminal Justice

By Pamela Gates, with thanks to Vicki Warren

On Jan. 17, 2025, JustDane and the Madison Justice Team hosted a panel that explored justice in Madison, Dane County, Wisconsin, and the nation under the particular topics of discretion, disparities, and equity. JustDane Associate Director Shar-Ron Buie moderated the panel at the UW Partnership Space before a very interested crowd that filled the room.

There are critical issues in the criminal-legal system, Buie said; the most pressing are the disparities. How can we make changes so that charging decisions are fair and transparent? And how can these panelists collaborate to make meaningful change?

The panelists:

UW Criminal Law Professor Larry Glinberg, attorney, director of the Wisconsin Prosecution Project, former assistant DA, and member of the Federal Defenders Services Board. He also served as a staff attorney with the Wisconsin Innocence Project for 1.5 years, helping wrongly convicted people regain freedom.

Atty. Jack Idlas, a criminal-law specialist, former assistant legal counsel to Gov. Evers on issuing pardons. He is a public defender in Wisconsin and previously served in that capacity in Lake County, Illinois. He also worked in the juvenile system in Cook County, Illinois. He has written a book titled Courtroom 302.

The Honorable Judge James Peterson is chief judge for the U.S. District Court in the Western District of Wisconsin. He was appointed in 2014 by President Obama.

UW-Madison Sociology Professor Emeritus Doug Maynard described himself as a “conversation analyst.” He has written a book titled Inside Plea Bargaining. He has also researched jury deliberations and studied statistical patterns on how criminal-legal system involvement gets started.

Detective Sgt. Kenneth Mosley, a member of the Madison Police Department (MPD) since 2007, previously taught in Milwaukee public schools and worked in a small Milwaukee County mobile psychiatric unit with kids in crisis mode. He was a school resource officer (SRO) for four years at La Follette High School, practicing restorative justice daily and facilitating peer courts. He worked with the COPS program in the schools until 2018, when the program ended because crime was spiking and officers were needed elsewhere. He has been newly appointed by the MPD to receive complaints and investigate officers charged with wrongful conduct.

Panelists address discretion, disparities, and equity in their particular areas of expertise.

Det. Sgt. Mosley stressed that he could not speak to the situation in any police departments other than Madison. He said it is “important to bring people in the community to partner with us, to help us remedy the problems in Madison.” He strongly defended the MPD, describing its “Education, Accountability, Transparency” (EAT) policy and offering data from Madison’s south side: a lower rate of stops of people of color, plus a regular review of stops. He noted that MPD officers take a vow not to give preferential treatment, and they are always asking how they can do better.

The MPD requires its officers to take implicit bias training, he said, and it’s trying to diversify, in particular by adding more people of color. The department works on communication and community-based efforts like this panel discussion and participates in such community connections as Coffee with a Cop, National Night Out, Juneteenth, and the Civilian-Police Academy. Officers view themselves as educators and community partners and are very willing, for example, to call on mental-health professionals when they need to.

Prof. Maynard addressed a large U.S. study in which 95 million traffic stops were analyzed. There were definite patterns: Black drivers were stopped more, but were less likely to be stopped after dark. The bar for searching Black drivers’ vehicles was lower than that for searching white drivers’ vehicles.

In Dane County, Maynard continued, whites make up 84% of the population, 64% of arrests, and 52% of the arrests that come before the DA. Blacks make up 6% of the population, 31% of arrests, and 40% of the arrests that come before the DA. (DA referrals are made on the basis of the arrest reports.)

How can law enforcement and community agencies build trust? Maynard asked, and he answered:

• Require body cameras; the benefits outweigh the costs.
• Pay attention to the police department’s public materials, and study disciplinary reports.
• Establish a civilian police-oversight board (which Madison has done).
• Focus on what the police actually do, and provide training materials.
• Conduct interviews and/or conversations between the police and the community to identify issues. Use a qualitative approach to learn, for example, what a police encounter was like.
• Citing a news story from another state, Maynard added that police need to recognize that their own actions might precipitate negative reactions, and that officers’ reports might omit or understate their own provocative behavior.

Prof. Glinberg said the criminal-legal system has significant weaknesses. He particularly addressed what is called “charge-stacking”: piling up charges against an accused person. A prosecutor has vast discretion; how can that discretion be used in a fair and principled way? What is the purpose of issuing multiple charges? In the prosecutor’s office, he said, there’s a remarkable lack of data about the effectiveness of charge-stacking. Many DAs’ offices rely not on data but on instinct. For example, if the penalty on a previous conviction didn’t work (i.e., the person has reoffended), the court’s solution is to increase the severity of the penalty. In reality, that doesn’t result in a better outcome.

The way we handle low-level cases is what is feeding mass incarceration. What are we trying to achieve? Greater public safety? We need to develop data and to study the effects of our interventions. If people repeatedly offend, then our interventions aren’t working.

We need more legal limitations on prosecution. Prosecutors and the courts need to accept responsibility for both mass incarceration and the racial disparities in the system. The place to try to exert influence is the DA’s office.

What are our objectives? Are we achieving them? Are we measuring them? There’s lots of data collected on policing, but not so much on sentencing and other points in the process. Bail reform is hugely important. Cash bail is not effective; it doesn’t result in greater public safety.

How do public defenders advocate for indigent clients? Atty. Idlas started by quoting from his book, Courtroom 302: “You get used to it [disparity]. We have a largely reactive system. The Public Defender’s Office has little guidance.”

It is the duty of public defenders (PDs) to defend vigorously, he said, but implicit biases play a large role, and PDs are overwhelmed with work. It’s almost impossible for them to do justice to the number of cases they carry. So they need to triage, and sometimes clients plead guilty when they might go free if more time were spent on their case.

PDs are faced with a multitude of tasks for each case they handle: Which witnesses, if any, should be interviewed? What motions should be filed? What legal research should be done? What experts should be hired? How much time should be spent with each client?

Almost everyone in the system is incredibly well-intentioned, but also severely taxed, he said, and many clients, especially clients of color, are mistrustful of the system. Some clients treat us poorly, he added, which makes our job of defending them more difficult.

What are possible reforms? Smaller caseloads. More support staff. More collaborative teamwork. More diversity in staffing, which would increase clients’ trust and would also lead to more perspective.

If the state courts were better organized – like having a calendar that makes sense – PDs’ time could be better used, he said. PDs frequently have to go from one courtroom to another, or even from one building to another, many times a day. The Office of the Public Defender needs better internal organization, e.g. limiting the types of cases individual PDs handle, so they can develop some expertise in certain areas. And always there must be awareness of implicit bias.

“When you look at system outcomes, everyone in the system is covered by that filth,” Idlas concluded.

What role can the judiciary play in reducing disparities in sentencing? Judge Peterson’s basic answer was: more discretion. When discretion was removed by “Three Strikes” and “Truth in Sentencing” laws and replaced by mandatory guidelines and minimum sentences, the result was mass incarceration. An example is the sentencing for powder vs. crack cocaine. It used to be 1:100; now it is 1:18. Powder was known as the “white” drug and crack as the “Black” drug. Even though the disparity has been reduced significantly, it is still severely out of balance.

With regard to bail reform, Peterson declared, “Nobody in my court has ever spent a night in jail due to cash bail.” He feels this policy gives defendants a chance to show, while awaiting trial, that they can do better. “I think we [judges] do pretty well at getting around the built-in disparities when we can use our own discretion,” Peterson said. He noted that federal judges have more discretion than state judges. He also noted that most federal judges’ cases are civil, not criminal. He has fewer cases than state judges do, too, which allows him time to dig deeper into what happened.

“Mass incarceration didn’t just fall from the sky,” Buie concluded. “It was a steady process. It will take time to reverse it. We must become engaged. To dismantle mass incarceration, the answer is, “engagement, engagement, engagement!”

There was time for a little bit of audience commentary:

Kelli Thompson, former director of the state Office of the Public Defender, was in the audience. She noted that there are over 40 public defender offices in Wisconsin. She gave a passionate defense of her former clients, paraphrased here: We spend $1 billion a year to fill prison beds! We’ve done research; how do we get our research data to be used to start treating people humanely? Every person is a human being! Hang that declaration on the wall, and don’t forget it! Even one night in jail disrupts a person, disrupts their family, and disrupts their community! 

The event ended with this pointed question from an audience member: When will the assumption of innocent until proven guilty be reinstated?  The answer: We need to change our approach via the political process. It’s our duty as citizens.