ONE-TRACK JUSTICE

America Spends Far More On Locking Up Men And Women For Drug Law Violations
Than It Does On Treating Them

In 1992, a young woman named Amy Fisher knocked on the front door of the
Long Island, N.Y., house where her married lover and his family lived. When
his wife answered the door, Fisher aimed a gun at her head and pulled the
trigger, wounding Mary Jo Buttafuoco. After seven years in prison, Fisher
was freed on parole. Also in 1992, former boxing champion Mike Tyson was
convicted of rape. He walked after serving three years behind bars.

Advocates of revising America's federal and state drug laws often compare
the prison sentences and the time actually served in these two high-profile
cases to the experiences of two other causes celebres, Kemba Smith and
Dorothy Gaines. Both women were sentenced to spend decades in
prison-24-plus years for Smith, nearly 20 for Gaines. They hadn't committed
violent crimes, but as fringe players in drug-selling operations, they were
subject to the hotly controversial minimum sentences required for
drug-related offenses. After an exhaustive media and lobbying campaign by
their supporters, President Clinton commuted both women's sentences.

Add up the number of men and women incarcerated for drug law violations,
and it's easy to see why, of the hundreds of billions of dollars the United
States has spent on its "war on drugs," law enforcement still takes up the
biggest piece of the funding pie. In the $18.1 billion drug budget for
fiscal 2001, more than $9.35 billion is earmarked for the criminal justice
system, according to the Office of National Drug Control Policy. The next
biggest allocation, $2.69 billion, is for treatment. Critics, and even
fairly dispassionate analysts of current drug policies-would like to see
those numbers reversed. The racial imbalances built into the current
policies draw particular fire.

Congress approved most of the federal mandatory minimum sentences in 1986,
directing that possession, distribution, or conspiracy to distribute
certain amounts and kinds of illegal drugs earn the offender at least five
or 10 years behind bars. The precise sentence is determined by three
factors: the type of drug, the amount of drug, and the defendant's number
of prior convictions. So an individual who is found with 100 marijuana
plants hidden on the south 40 can be automatically locked up for five
years; getting caught with a kilo of heroin is worth 10 years in the
slammer. The amount of crack cocaine that gets you 10 years, however, is
just 50 grams.

The states have their own systems for setting sentences. New York's
policies are perhaps the best-known, and among the harshest-the so-called
Rockefeller laws of 1973. The standards are still in effect despite efforts
by current Gov. George E. Pataki and state legislators to agree on changes.
As the law now stands, the possession of four ounces, or the sale of two
ounces, of a narcotic in New York can carry a penalty of 15 years to life
in prison.

Despite the certainty of imprisonment for those convicted in most places,
drug crimes are rapidly climbing. According to FBI data for 1999, the
latest figures available, state and local law enforcement agencies reported
more than 14 million arrests, not counting those for routine traffic
violations. Drug law violations, with 1.56 million arrests, outranked all
other crimes, beating out offenses such as driving under the influence,
larceny-theft, and simple assault. The majority of the drug arrests-four of
every five, according to the Bureau of Justice Statistics-were for
possession of an illegal substance.

The number of state and local drug arrests has generally been on the rise
for the past 20 years-almost doubling from 824,100 in 1986, when most
mandatory federal minimums were enacted. Gavels on Automatic?

Critics complain that mandatory minimums take away a judge's discretion to
weigh situational factors, such as the defendant's role and motivation in
an offense, or the likelihood that he or she will break the law in the future.

When James P. Gray first became an Orange County, Calif., municipal court
judge, he took up 15 or so new cases a day. Four out of five were
drug-related, he said.

"I've sentenced quite a few people to prison and felt really good about
doing it," he said. "But you can't sit in the court like I was and watch
all of these low-level drug offenders be churned around through the system
with no purpose. There are times when very conservative federal judges,
appointed by Nixon and Reagan, were literally in tears because they were
required by law to sentence the person before them to what they felt was an
unreasonably long time."

Congress did enact a safety-valve provision in 1994 that allows judges to
spare some nonviolent drug offenders from the mandatory minimums. But in
many cases, defendants can avoid serving the required time only by giving
law officers information that might lead to more drug arrests. Of course,
the higher up the drug criminals are in the distribution chain, the more
information they have to use as bargaining chips. In practice, critics say,
this system penalizes lower-level offenders, people who play relatively
minor roles in drug trafficking and are less likely to know anything about
their sources of drugs or about other illegal drug operations.

Says Gray: "I've heard many instances in which women who are single parents
make a mistake. They hook up with the wrong man, who is involved in drugs.
The woman delivers drugs once and gets sentenced to 10 years. The problem
is, she doesn't have any information to sell the prosecutors. Her boyfriend
does, so often if you catch him, he gets a lower sentence." This, in a
nutshell, describes the situations Smith and Gaines faced.

William J. Bennett, drug czar in the George H.W. Bush Administration, sees
things differently. Mandatory minimums were created, he said, because some
judges "thought drugs were harmless and were not sentencing people."

The U.S. Sentencing Commission, an independent government agency that
develops federal sentencing guidelines, reports that the average prison
time given for drug trafficking in fiscal 1999 was 73.3 months. That was
less than the average sentence for murder-187.7 months-but longer than
penalties for sexual abuse (64.0 months), assault (33.6 months), and
manslaughter (31.3 months). In the Big House Just before leaving office,
President Clinton pardoned a handful of nonviolent drug offenders. But
several hundred others are still in prison. People convicted of drug
offenses are a substantial part of the burgeoning prison population.

According to the BJS, some 2 million convicted criminals were serving time
in the United States at the end of 2000. To look at the proportion another
way: The number of sentenced prisoners per 100,000 residents rose from 292
in 1990, to 478 in 2000.

While drug offenders represented 20 percent of the population growth in
state prisons, the number of federal prisoners incarcerated for drug crimes
accounted for the largest percentage-61 percent-of total federal prison
population growth since 1990, according to BJS figures. Drug offenders are
about a fifth of all state inmates, but last year, according to the Federal
Bureau of Prisons, they made up about 57 percent of the federal prison
population, making them the largest group of federal inmates.

The numbers have shifted dramatically since the enactment of federal
mandatory minimums. In 1986, drug offenders accounted for 37.7 percent of
sentenced federal inmates. In eight years, that proportion exploded to 61.3
percent, according to the Bureau of Prisons.

"The percentage of them who are kingpins is infinitesimal," said Ethan
Nadelmann, executive director of the Lindesmith Center-Drug Policy
Foundation, an independent institute that is a leading proponent of drug
law changes. "You're talking [about] a lot of people who have drug
problems, petty sellers. The fact that they get arrested and are in prison
has zero impact on the availability of drugs."

At the end of 2000, prisons in 21 states were operating at or above full
capacity, according to the BJS. The federal system was 31 percent above
capacity. From 1990 to mid-2000, states added 351 adult correctional
facilities and more than 528,000 prison beds.

Julie Stewart, president of the Families Against Mandatory Minimums
Foundation, sees the skyrocketing prison population as just one more reason
to reduce the sentences of drug offenders. She formed the group after her
brother was given five years behind bars for growing marijuana, a sentence
she says was undeserved. "He's a perfect example of someone who screwed up,
learned his lesson, and is now a taxpaying, contributing member of
society," she said.

Proponents of mandatory minimums insist there's an undeniable connection
between drug use and other crimes. According to the National Institute of
Justice's 1999 Arrestee Drug Abuse Monitoring Program survey, at each of 34
locations, at least half of the adult male suspects-and often many more
than half-tested positive for at least one illegal drug.

A 1997 BJS survey revealed that 33 percent of state inmates and 22 percent
of federal prisoners said they committed their crime while under the
influence of drugs, and one in six state and federal prisoners said they
committed crime to get money to pay for drugs. At the same time, however,
drug-related murders have plunged. In 1989, the FBI reported 1,402 such
murders; in 1999, the figure was 564. Supporters of mandatory minimums say
strict drug punishment could be a factor in the drop.

But Stewart said the murder rate has decreased because crack cocaine has
become less popular. "In the '80s, when crack was the new drug on the
scene, there were a lot of turf wars," which resulted in murder, she said.
"That has very much waned. It's a very different drug market now."

Racial disparities are another factor in the drug punishment debate.
Federal law mandates that possession with intent to distribute 500 grams of
powder cocaine is worth the same mandatory five-year sentence as possession
with intent to distribute five grams of crack cocaine.

When Congress established the minimums, crack was a prime target.
Proponents of strict sentencing argued that the drug was more addictive
than powder cocaine and that violence was closely associated with crack
trafficking. But the law clearly has had a disproportionate impact on
blacks. In fiscal 1999, 84.7 percent of those convicted on federal crack
charges were African- American, according to the U.S. Sentencing
Commission. Among those convicted of using or being involved with other
types of drugs-powder cocaine, heroin, marijuana, and methamphetamine-
African-Americans were no more than 31.5 percent of the offenders.

Attempts to narrow the sentencing gap, including a recommendation by the
U.S. Sentencing Commission to do so, have failed. But President George W.
Bush has stated he would support a reduction of the disparity, prompting
even such activists as Stewart and Nadelmann to say they are optimistic.

Other recent efforts for change have proved fruitful. Last year, California
voters approved Proposition 36, which mandated probation and treatment,
rather than incarceration, for nonviolent drug possession offenders.
Advocates of drug law revisions called the vote a breakthrough. "The odds
are that Proposition 36 is the single most significant state legislation
passed in your lifetime," Nadelmann said.

Bennett, however, said a loosening of the drug enforcement laws could turn
communities into "killing fields."

"Maybe some part of this country should vote itself off-limits from the
drug laws," Bennett said. "Let them try it for 18 months, and let's test
this hypothesis. There's a reason crime is down in this country." Another
Option?

What about the widely praised drug courts-locally administered programs
designed to keep drug abusers out of prison and place them instead in
treatment? The theory is that continued treatment can reduce drug use and
drug-related crimes. Defendants who complete a treatment program can have
their sentences reduced or charges dismissed.

Certainly, drug courts are a less expensive alternative than imprisonment.
Numbers compiled by the National Association of Drug Court Professionals
show that incarceration of drug offenders can cost between $20,000 and
$50,000 a year per person. The cost of building a prison cell can be as
much as $80,000. By comparison, the drug court system typically costs just
$2,500 per person per year.

The first drug court was established in Miami in 1989. Five years later,
Congress approved federal support for drug courts, and now they've sprung
up in every state and the District of Columbia. As of October 31, 2000, the
White House drug policy office reports, 593 drug courts were at work and
456 others were in the planning stages.

Although the record varies from state to state, drug courts, by most
accounts, seem to work. So far, 57,000 people have gone this route,
according to the White House drug office. Supporters say the courts
drastically reduce drug use; in fact, 50 percent to 65 percent of drug
court participants stop using altogether, according to the
government-sponsored Drug Court Clearinghouse and Technical Assistance
Project at American University.

Little serious debate has occurred about one drug-related issue:
decriminalization. Experts say the legalization of drugs, proposed by some
specialists, is unlikely, except perhaps for medical marijuana. "The
interesting thing is that I never hear these [legalization] arguments from
the inner city," Bennett said. "I hear them on the editorial pages, in the
universities. I've never heard anybody on the front lines of Harlem or
Watts or Anacostia say, 'Let's legalize this.' They say, 'Can't you keep
these guys locked up? Can't you protect us?'"

But Judge Gray and other critics insist the current system just isn't
working. "We have to legitimize the [legalization] discussion so people
realize it's OK to talk about this," he said. "We have tried to moralize
this and keep people from putting substances into their bodies and it's
been a total failure, with enormous collateral damage to our society."

Clearly, for both sides, this "war" is far from over.