A CHRISTMAS CAROL

BOSTON -- Not many Americans will recognize the names of 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.

Ms. Gaines, a 42-year-old widow with three children, was serving a
sentence of 19 years and 7 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 Ms.
Gaines, evidently for lack of evidence that she had done anything
significant.

A year later federal prosecutors went after Ms. Gaines. The witnesses
against her were drug dealers who had pleaded guilty to running a
large-scale crack operation. Their only testimony tying Ms. Gaines to
a specific act was that she 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 5 years, while she got
nearly 20.

Ms. Gaines served nearly six years in prison before the president
ordered her freed, 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.

Ironically, one supposed reason for the mandatory minimum sentences
imposed by Congress 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 Ms. 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
Federal District Judge Richard B. Kellam 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 6 months in prison.

Both of those women were lucky in the devoted lawyers who took up
their cause. George Kendall of the NAACP Legal Defense and Educational
Fund worked for years to set Ms. Smith free. A. Hugh Scott, Gregg
Shapiro and others at the Boston law firm of Choate, Hall & Stewart
spent hundreds of hours on Ms. Gaines's 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 Ms. Gaines and Ms. 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 some
day a president will have the courage to tell us how that harsh
rigidity distorts our law.