MISPLACED PRIORITIES

ATTORNEY GENERAL John Ashcroft responded to the Justice Department's
latest figures on drug prosecutions by claiming that they prove that
"federal law enforcement is targeted effectively at convicting major
drug traffickers and punishing them with longer lockups in prison."
The data the department released show almost the opposite: that the
nation's tough drug sentencing regime is, to a great extent, being
used to lock up comparatively low-level offenders who could easily be
prosecuted in state courts. The data, far from affirming that the
federal drug effort is a success, raise real questions about the
federal government's prosecutorial priorities in the war on drugs.

The growth in federal drug prosecutions over the past two decades has
been prodigious. Between 1984 and 1999, the number of suspects
referred to federal prosecutors in drug matters tripled, to more than
38,000 -- of whom 84 percent were prosecuted. Drug cases during that
time went from 18 percent of the total federal criminal caseload to
32 percent. According to other department data, drug convicts now
account for 57 percent of the federal inmate population, in contrast
to only 21 percent of the much larger state population.

This growth is not, as the attorney general suggests, largely the
result of locking up major traffickers. In 1999 only about one-half
of 1 percent of criminal referrals were for the most serious drug
cases -- those involving what are known as continuing criminal
enterprises -- and these led to only 116 actual prison sentences.
Two-thirds of drug defendants could not afford to hire their own
lawyers, a good indication that they were hardly high-level
traffickers. In fact, 38 percent of all convictions involved
quantities of drugs small enough that no mandatory minimum sentence
could be applied, while only 3 percent resulted in mandatory minimum
sentences of longer than 10 years in prison. In 1997 the department
reports, 14 percent of federal drug inmates were in prison for drug
use, and 42 percent were serving time for dealing -- either at the
street level or above. It is simply wrong to argue that the focus of
the federal drug effort has been kingpins. Rather, in many
jurisdictions, federal drug investigations and prosecutions seem to
run parallel with efforts of state prosecutors and local police
forces.

Another striking feature of the department's data is the
disproportionate role that marijuana seems to be playing in federal
drug prosecution. Marijuana is hardly the most dangerous of drugs.
Yet 31 percent of federal drug referrals involved marijuana offenses
in 1999, more than for any other type of drug. And though these
referrals ultimately produced shorter sentences, they were actually
more likely to result in prosecutions than cases involving powder
cocaine, crack cocaine or heroine. Marijuana cases all by themselves
now account for a measurable percentage of the entire federal
criminal caseload.

This hardly seems rational. The unique federal role in the drug war
ought to be the prosecution of major interstate trafficking cases
involving the most dangerous people -- and the drugs that constitute
the greatest threat to the national health.