FOCUS - WASHINGTON FARES ONLY SLIGHTLY BETTER IN TREATING DRUG USERS

The problem of illicit drug use has tragic and far-reaching consequences
-- delusions, destructive behavior, irrational fears and a refusal to
take responsibility for one's actions. And that is just what it does to
some elected officials.

One of the most insidious and counterproductive anti-drug policies is
the increasingly visible prosecution of women for abusing drugs while
pregnant.

South Carolina has been the center for this ill-conceived tactic,
accounting for as many as half of all the prosecutions in the country.

Indicting these women -- all poor and almost all black -- has been a
political bonanza for white prosecutors, propelling one into statewide
office and now a promising campaign for governor. But as a method of
actually dealing with drug abuse, this approach has been a disaster.

At the point of its inception, prosecuting pregnant women was stunningly
irrational. It could not succeed in inducing those women to seek
treatment, because for many years all the drug treatment facilities in
South Carolina generally refused to accept pregnant patients. A
Charleston, S.C., hospital tested women without their consent for drugs
and gave the results to police; when it initiated that practice, the
hospital itself refused to enroll pregnant women in its own treatment
program.

Even today only four in-patient drug treatment facilities in the state
are designed for pregnant women. More fundamentally, South Carolina
ranks last in the availability of drug treatment, according to the
National Center for Alcohol and Substance Abuse. The state that balks at
spending money to prevent drug abuse is happy to set no limits on the
sums it will spend to imprison drug users.

The policy has often been exquisitely counterproductive.

South Carolina prosecutors sponsored advertisements warning pregnant
women they faced prosecution if they used drugs. Doctors and nurses were
required to report women who did. Women responded, not by avoiding drugs
but by avoiding medical care. The small number of pregnant women who had
been receiving drug treatment plummeted; poor women seeking prenatal
care fell as well. Conversely, infant mortality and the number of
abandoned babies rose. State officials conceded that frightened women
were choosing to have their babies at home.

The prosecutions in South Carolina, indeed the underlying reporting and
investigations, have been carefully targeted. All the defendants have
been poor, virtually all have been black, and almost all the
prosecutions have involved use of cocaine, despite the fact that drug
use is also a serious problem in the white middle-class majority
population and that other drugs -- heroin, marijuana, methamphetamine --
are also abused in the state.

In Charleston only the hospital that served the area's Medicaid patients
engaged in compulsory drug testing; most affluent women were not tested,
and only cocaine use was reported to the police. None of this is
surprising; a prosecutor who sent dozens of middle-class white women to
jail for drinking or smoking marijuana while pregnant would probably not
have survived the next election.

Most of these prosecutions have not, however, been based on evidence
that the babies in question had actually suffered significant physical
long-term harm because their mothers had used cocaine. This may come as
a surprise to readers who remember widespread press accounts of a decade
ago, describing hundreds of thousands of "crack babies" with severe
mental or emotional problems.

But those accounts, questioned at the time by many medical researchers,
have now been largely discredited. The March 28 issue of the Journal of
the American Medical Association included a lengthy summary of a decade
of research that detected no such long-term problems.

Some portion of the babies of cocaine users may ultimately be found to
be sustaining harm, but the proportion is too small and the medical
science too tentative to support in most cases a finding of
cocaine-based harm beyond a reasonable doubt, the standard of proof
required for a criminal prosecution.

There is, on the other hand, conclusive medical evidence that alcohol
and tobacco use cause birth defects, including organic brain damage.
Fetal alcohol syndrome is often readily detectable among young children.
South Carolina, however, emphatically is not prosecuting mothers who
harm their children by using these drugs.

After the S.C. Supreme Court held (in a cocaine case) that a mother
could be prosecuted for actions that endangered the health of a fetus,
the state Department of Alcohol and Other Drug Abuse Services printed
50,000 brochures warning women that it was a crime to engage in any
activities that "risk harming their babies," including drinking and
smoking. The attorney general who had built his career on protecting
fetuses from harmful drugs successfully demanded that the brochures be
withdrawn, assuring the public that there would be no prosecutions of
mothers who injured their fetuses by using nicotine (a major S.C. crop)
or alcohol (sales of which are an important source of state taxes).

These strange tactics are not limited to South Carolina. Since 1980
there have been several hundred prosecutions in 29 other states,
including one unsuccessful prosecution here in Washington. A decade ago
the hysteria about crack babies triggered many of these cases. Today
they are being revived as a carefully planned legal effort to attack the
right to abortion under Roe v. Wade. The pro-life movement hopes to
undermine Roe v. Wade by persuading the courts that a fetus is a person
entitled to legal protection from drug abuse or other physical injury.

Thus even if these prosecutions will actually increase the number of
babies born to drug-abusing mothers, for the pro-life forces they
nonetheless serve a vital purpose. A similar scheme is behind the recent
action of the House of Representatives in approving Republican-sponsored
legislation that would impose enhanced sentences for offenses that cause
"prenatal injury."

Washington has largely avoided this craze for prosecuting mothers. But
the overall structure of our anti-drug policies bears an uncanny
resemblance to the situation in South Carolina. Here too drug treatment
is far less expensive than imprisonment; treatment averages less than
$2,000 a patient a year, compared with about $25,000 a year to
incarcerate a convict in prison.

The presumptive sentence for selling a single dose of crack is two
years; the $50,000 cost of that sentence would be enough to treat the
defendant and 24 others. Like South Carolina, we are underfunding
treatment; state programs are only large enough to treat 18 percent of
those indigent Washingtonians on drugs. For the remaining 82 percent,
the only state-supported program is the far more expensive, but fully
funded, prison system.

This structure creates perverse incentives for local law enforcement
officials. The amount of money available to them for drug treatment,
hiring police or other crime prevention measures is strictly limited.

But prison time, paid for directly by the state, is completely cost-free
to local authorities; even if a county prosecutor thinks that the state
is wasting its money (that a one-year, $25,000 sentence would be
preferable to a five-year, $125,000 sentence), the prosecutor has no
reason and often little ability to reduce that expenditure.

The poorest of Washington's untreated drug users live on the streets
selling small quantities of drugs to support their habits. Police
periodically engage in buy-bust operations to reduce this activity;
because poor non-white drug users are far easier -- less expensive -- to
apprehend than well-heeled users and sellers who operate behind closed
doors, a majority of those imprisoned are non-white.

In King County almost all of the drug users prosecuted for minor sales
are black, just like the pregnant women being prosecuted in South
Carolina. Earlier this year the state Senate took an important first
step toward correcting this situation. At the urging of King County
Prosecuting Attorney Norm Maleng, it passed by a decisive 31-14 margin a
bill that would have reduced most drug sentences by a modest six months,
saving millions of dollars in prison costs, and would have redirected
those funds into drug treatment programs.

Unfortunately the bill was killed in the House Criminal Justice
Committee. This legislation should be revived and enacted next session.

More fundamentally, the state needs to re-examine the underlying system
through which it allocates law enforcement funds. In an era of limited
resources, we have to recognize that every dollar spent on one law
enforcement priority (prisons) is a dollar not available for other law
enforcement needs (hiring police or probation officers, lighting
dangerous streets, putting ID numbers on goods likely to be stolen).

We need to take a hard look at the degree to which each of these needs
is being met, and at the governmental process by which allocations are
being made among them. We also must give local officials more control
over how taxpayer dollars are being spent, so that law enforcement
priorities determine budgets, rather than the other way around.