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Man fights U.S. gun charge as discriminatory prosecution
Outcome could affect hundreds of black defendants
By GINA BARTON
[email protected]
Last Updated: April 25, 2003
An African-American man charged with federal firearm violations has challenged his prosecution, arguing that a countywide effort to get guns off the streets illegally discriminates against blacks. If he prevails, hundreds of black defendants could have similar cases thrown out of federal court.
The maximum state court sentence for being a felon in possession of a firearm is five years in prison, plus five years of supervision upon release. In federal court, the same crime carries a maximum term of life in prison, depending on the defendant's record.
Omar Terry, 28, of Milwaukee faces two counts of being a felon in possession of a firearm. He also has been charged with possession with intent to deliver marijuana. Terry's past felony record includes state convictions for second-degree sexual assault and possession of marijuana, second offense.
In Wisconsin, convicted felons are not allowed to have guns of any kind for any reason. If they are caught, they can be prosecuted in either state or federal court. A joint enforcement program between Milwaukee County and the federal government called CEASEFIRE aims to move defendants considered more dangerous by prosecutors into the federal system, where they may be sentenced to significantly longer prison terms if convicted.
In his motion, Terry argues that moving black defendants to federal court violates the due process clause of the Fifth Amendment, because the decision to prosecute may not be based on "an unjustifiable standard such as race, religion or other arbitrary classification."
The maximum state court sentence for being a felon in possession of a firearm is five years in prison, plus five years of supervision upon release. In federal court, the same crime carries a maximum term of life in prison, depending on the defendant's record; someone with a record such as Terry's faces a 10-year maximum. On average, the state sentence is 25.2 months of incarceration, while the average federal sentence is 74.1 months, or nearly three times as long, according to the motion.
A Journal Sentinel analysis published in January indicated that a disproportionate number of blacks are prosecuted under CEASEFIRE. The racial gap is even wider among those sent to federal court. The Journal Sentinel article was attached to Terry's motion as an exhibit.
The article, which analyzed CEASEFIRE records from the start of the program through the end of 2002, showed that of the 828 CEASEFIRE defendants whose primary charge was "felon in possession of a firearm," 702 - or 85% - were black. Just 73, or 9%, were white.
Of the 130 people sent to federal court, 118, or 91%, were black. Just eight - or 6% - were white.
(In several cases, the same person was prosecuted more than once for separate offenses.)
No one tracks the number of felons living in Milwaukee County, much less their racial breakdown. But the state Department of Corrections maintains a database of felons on probation and parole. At the end of last year, there were 10,606 in the county - 67% black, 30% white. Bill Clausius, a department spokesman, said the racial breakdown remains fairly constant.
The motion, filed Friday in federal court in Milwaukee by federal public defender Dean Strang, also cites research by Steven Raphael, a professor at the University of California, Berkeley. Raphael's analysis states that from January 2000 through March 31 of this year, blacks were most likely to be diverted to federal court under CEASEFIRE, then Hispanics, then whites. Blacks were almost twice as likely to be sent to federal court as whites, according to Raphael and Anne Morrison Piel, associate professor at Harvard University.
The motion also criticizes the original design of CEASEFIRE as racist because it focuses on Milwaukee County, which has the highest percentage of black residents in the federal court's Eastern District of Wisconsin. The entire population of the Eastern District's 28 counties, on the other hand, is predominantly white.
"The choice of jurisdictional boundaries of the program, whether or not it is justified, means that the racial mix of those indicted under federal felon in possession charges (is) unlikely to be in proportion to the mix in the Eastern District," according to Piel.
Strang declined to comment Friday, saying the motion speaks for itself.
U.S. Attorney Steven M. Biskupic said late Friday that he could not comment until his office has prepared its formal response to the motion. He did say that the CEASEFIRE program is being expanded throughout the Eastern District.
From the April 26, 2003 editions of the Milwaukee Journal Sentinel
Outcome could affect hundreds of black defendants
By GINA BARTON
[email protected]
Last Updated: April 25, 2003
An African-American man charged with federal firearm violations has challenged his prosecution, arguing that a countywide effort to get guns off the streets illegally discriminates against blacks. If he prevails, hundreds of black defendants could have similar cases thrown out of federal court.
The maximum state court sentence for being a felon in possession of a firearm is five years in prison, plus five years of supervision upon release. In federal court, the same crime carries a maximum term of life in prison, depending on the defendant's record.
Omar Terry, 28, of Milwaukee faces two counts of being a felon in possession of a firearm. He also has been charged with possession with intent to deliver marijuana. Terry's past felony record includes state convictions for second-degree sexual assault and possession of marijuana, second offense.
In Wisconsin, convicted felons are not allowed to have guns of any kind for any reason. If they are caught, they can be prosecuted in either state or federal court. A joint enforcement program between Milwaukee County and the federal government called CEASEFIRE aims to move defendants considered more dangerous by prosecutors into the federal system, where they may be sentenced to significantly longer prison terms if convicted.
In his motion, Terry argues that moving black defendants to federal court violates the due process clause of the Fifth Amendment, because the decision to prosecute may not be based on "an unjustifiable standard such as race, religion or other arbitrary classification."
The maximum state court sentence for being a felon in possession of a firearm is five years in prison, plus five years of supervision upon release. In federal court, the same crime carries a maximum term of life in prison, depending on the defendant's record; someone with a record such as Terry's faces a 10-year maximum. On average, the state sentence is 25.2 months of incarceration, while the average federal sentence is 74.1 months, or nearly three times as long, according to the motion.
A Journal Sentinel analysis published in January indicated that a disproportionate number of blacks are prosecuted under CEASEFIRE. The racial gap is even wider among those sent to federal court. The Journal Sentinel article was attached to Terry's motion as an exhibit.
The article, which analyzed CEASEFIRE records from the start of the program through the end of 2002, showed that of the 828 CEASEFIRE defendants whose primary charge was "felon in possession of a firearm," 702 - or 85% - were black. Just 73, or 9%, were white.
Of the 130 people sent to federal court, 118, or 91%, were black. Just eight - or 6% - were white.
(In several cases, the same person was prosecuted more than once for separate offenses.)
No one tracks the number of felons living in Milwaukee County, much less their racial breakdown. But the state Department of Corrections maintains a database of felons on probation and parole. At the end of last year, there were 10,606 in the county - 67% black, 30% white. Bill Clausius, a department spokesman, said the racial breakdown remains fairly constant.
The motion, filed Friday in federal court in Milwaukee by federal public defender Dean Strang, also cites research by Steven Raphael, a professor at the University of California, Berkeley. Raphael's analysis states that from January 2000 through March 31 of this year, blacks were most likely to be diverted to federal court under CEASEFIRE, then Hispanics, then whites. Blacks were almost twice as likely to be sent to federal court as whites, according to Raphael and Anne Morrison Piel, associate professor at Harvard University.
The motion also criticizes the original design of CEASEFIRE as racist because it focuses on Milwaukee County, which has the highest percentage of black residents in the federal court's Eastern District of Wisconsin. The entire population of the Eastern District's 28 counties, on the other hand, is predominantly white.
"The choice of jurisdictional boundaries of the program, whether or not it is justified, means that the racial mix of those indicted under federal felon in possession charges (is) unlikely to be in proportion to the mix in the Eastern District," according to Piel.
Strang declined to comment Friday, saying the motion speaks for itself.
U.S. Attorney Steven M. Biskupic said late Friday that he could not comment until his office has prepared its formal response to the motion. He did say that the CEASEFIRE program is being expanded throughout the Eastern District.
From the April 26, 2003 editions of the Milwaukee Journal Sentinel
