CLINTON'S TOUGH PRISON WATCH

Washington -- Marsha Cunningham is doing big time in federal prison because
she lived with a drug dealer.

There was no evidence that the pretty, young former temp agency worker used
or sold narcotics. But police found cocaine in the Dallas apartment she
shared with her boyfriend, who was also caught with dope while driving her car.

That was enough to send her away for 15 years under federal mandatory
minimum sentencing laws, even though she had no prior convictions.

Ms. Cunningham's case and others compiled by the group Families Against
Mandatory Minimums are examples of America's excessive use of
incarceration. Much of that excess was driven by anticrime measures signed
by President Clinton.

According to the Justice Policy Institute, a Washington-based organization
that favors alternatives to harsh prison sentences, "tough on crime"
policies passed during the Clinton years have resulted in the largest
increases in federal and state prison populations of any presidency in
American history.

There's a particularly ironic twist to a story that already casts the
United States as one of history's great incarcerators: Mr. Clinton's most
loyal supporters - black people - are those who have suffered most from the
incarceration policies he approved.

Certainly, it is the states that incarcerate most of America's prisoners.
But state programs are directly affected by Washington action, such as a
law Clinton signed that provided federal money for state prison
construction if those states implemented policies resulting in longer
sentences. Clinton effectively nullified crime as an issue the Republicans
could use against Democrats.

President Bush has an opportunity to make a move like President Nixon's
opening to Communist China, a move that went against the orthodoxy of his
party. He can pursue policies that could bring more sanity to the
criminal-justice system. He should fulfill a campaign promise to provide an
additional $1 billion for expanded local drug treatment programs. Just
before the inauguration, he also acknowledged that mandatory sentences
might not heal drug addicts or be the best use of prison space.

As for Clinton, there's no question he advanced the interests of blacks in
numerous ways during his presidency, including a push for crime-prevention
programs and alternative sentencing measures such as drug courts. When he
announced he would locate his office in Harlem, African-Americans there
welcomed him like returning kin.

But in the rush to gush over him, African- Americans too easily overlook
the increase in imprisonment of blacks on his watch. From 1992 to 1999, the
incarceration rate per 100,000 adult African-Americans jumped more than 28
percent, to 3,620, according to the Justice Policy Institute. Overall, the
incarcerated population is 48 percent black - almost four times greater
than the African-American portion of the general population.

To be sure, many criminals, no matter what their color, deserve to be
locked up. Incarceration certainly is one element in declining crime rates.
No one wants effective law enforcement more than residents of high-crime
neighborhoods. That law enforcement, however, must be fair and sensible to
be credible.

Racial profiling is one practice that contributes to the abundance of
blackness behind bars. Traffic stops based on race lead to more searches
based on race, which result in the discovery of more contraband, which
leads to more arrests and incarcerations.

A report last year by the Leadership Conference on Civil Rights summed it
up: "Unequal treatment of minorities characterizes every stage of the
process ... by racially skewed charging and plea-bargaining decisions of
prosecutors; by discriminatory sentencing practices; and by the failure of
judges, elected officials, and other criminal-justice policymakers to
redress the inequities that become more glaring every day."

The disparity in sentencing between powder and crack-cocaine offenses
demonstrates the problem. Federal punishment for distribution of crack is
100 times greater than the punishment for powder cocaine, though they are
essentially the same drug. Conviction for distributing 5 grams of crack
brings a mandatory five-year sentence. It takes 500 grams of powder coke to
trigger the same term.

Though between one-half and two-thirds of crack users are white or
Hispanic, according to the Washington-based Sentencing Project, the US
Sentencing Commission says that in 1999, 84.7 percent of federal crack
defendants were black, 8.9 percent were Hispanic, and 5.4 percent were white.

Clinton could have taken the lead in equalizing the penalties, as the
commission proposed in 1995. Despite pleadings from African-American
leaders, he approved Congress's rejection of the recommendation.

In his final day as president, Clinton did grant commutations to about 20
prisoners serving mandatory minimum drug sentences. But instead of wrecking
his legacy by dealing questionable pardons to characters like Marc Rich,
Clinton should have shown clemency to far more of those trapped by unfair
sentences. And when he told Rolling Stone magazine in October that "we
really need an examination of our entire prison policy," he was right. But
it was much too little, much too late.

* Joe Davidson does commentaries on National Public Radio's 'Morning Edition.'