DRUG LAW INEQUITIES

BOSTON -- Not many Americans will recognize the names Dorothy Gaines and
Kemba Smith on the list of people whose federal prison sentences President
Clinton has just commuted. But they should be known, because their stories
challenge our vision of justice.

Gaines, a 42-year-old widow with three children, was serving a sentence of
19 years and seven months. Her trouble stemmed from the fact that she had a
boyfriend, Terrell Hines, who became a driver for a drug gang.

In 1993, state prosecutors in Alabama, where they lived, charged them both
with drug conspiracy. But they dropped the charges against Gaines,
evidently for lack of evidence that she had done anything significant.

A year later, federal prosecutors went after Gaines. The witnesses against
her were drug dealers who had pleaded guilty to running a large-scale crack
operation. Their only testimony tying Gaines to a specific act was that she
had once delivered three small packets of crack to street sellers. The
government's case was really that she tolerated what her boyfriend and his
cohorts did.

Federal drug laws carry savage mandatory minimum sentences. The only way to
serve less time is to help prosecutors get someone else. In this case the
someone else was Dorothy Gaines. By testifying against her, the real
villains got sentences as low as five years, while she got nearly 20.

Gaines served nearly six years in prison before the president freed her,
and that devastated her family. Her oldest child, Natasha, had to drop out
of college to take care of the others; she is now seriously ill. Two
younger children, Chara and Phillip, went into declines in school and
suffered from depression. Phillip sent President Clinton a letter that is
painful to read. "It's very hard," he said, "growing up without a mom or a
dad."

Families of imprisoned women are always likely to suffer. What makes this
and similar drug cases stand out is the inequity of the sentences.

One supposed reason for the mandatory minimum sentences was to make them
more equal. In fact, they have led to gross disparities. Big drug dealers
have a perverse incentive to point the finger at others who are marginally
involved, if at all. And mandatory sentences are so grotesquely harsh that
some prosecutors and judges get around them by taking pleas to less serious
offenses. That was not done for Gaines.

Kemba Smith was a middle-class college student when she fell in with an
older man who turned out to be a drug dealer. He abused her, violently, but
she clung to him and took part in his crimes.

A doctor testified at her trial that she was a classic victim of battered
woman's syndrome, unable to break from her abuser. But Judge Richard B.
Kellam of federal District Court said, "I think there isn't a soul alive
that can understand how any woman or girl would permit some man to beat on
her and then continue to live with him and to love him." He sentenced her
to 24 years and six months in prison.

Both of those women were lucky in having devoted lawyers who took up their
cause. George Kendall of the NAACP Legal Defense and Educational Fund
worked for years to set Smith free. A. Hugh Scott, Gregg Shapiro and others
at the leading Boston law firm of Choate, Hall & Stewart spent hundreds of
hours on Gaines' case.

Dorothy Gaines and Kemba Smith are examples of the human realities that can
exist behind the slogans of the war on drugs. The so-called kingpins who
prey on society deserve condign punishment. But would a civilized system of
justice -- a sane system -- impose sentences of 20 years and more on women
who were victims as much as perpetrators?

Federal prisons are full of low-level, nonviolent drug offenders. A
coalition of clergy asked President Clinton to commute all their sentences.
In freeing Gaines and Smith, he made a start, small but meaningful.

The real challenge is for Congress to repeal the mandatory minimum
provisions of the drug laws so judges can use the more flexible but still
stiff sentencing guidelines. That will be difficult, because members of
Congress are afraid of being called soft on crime. But someday, a president
will have the courage to tell us how that harsh rigidity distorts our law.