THREE FATCATS AT WORK

DEFEAT MASS. QUESTION 8

AS A MATTER of economics, Question 4 -- return of the state income tax
to 5 percent -- is the most important Massachusetts referendum
question. But as a matter of social policy, Question 8 -- which would
significantly rewrite crime and punishment for drug offenses -- is the
most important question. It is also the most complex. It therefore
deserves a thorough analysis.

Most of the substance of what came to be Question 8 went before the
legislature on May 3 without being brought to a vote. But the
so-called Coalition for Fair Treatment was already waiting to take the
matter to the people. This group is almost entirely financed by three
out-of-state millionaires-to-billionaires who favor the legalization
of drugs: Peter Lewis, chief executive officer of the Progressive
Corporation; George Soros, chairman of Soros Foundation; and John
Sperling, CEO of the Apollo Group. Each of these has contributed
$247,500 -- $742,500 combined. Funds from all other contributors total
$955.73.

Question 8 would make three major changes in current state law. First,
the present right of individuals accused of possessory drug offenses
to request treatment would be extended to traffickers, refiners,
manufacturers, growers, etc., for their first and second offenses. And
the period allowed to request treatment would be extended from five
days of being notified of the right, to five days before trial. On
completing treatment, charges could be dismissed two times; a third
offense would be deemed a first offense for purposes of sentencing.

Second, by the way of opening the treatment option to what are now
deemed to be dealers, Question 8 would eliminate mandatory minimum
sentences for several categories of trafficking.

Third, the proposal would make it more difficult to confiscate
property used in drug-dealing -- most often cars. The proceeds of
confiscations when they did occur would be earmarked for drug
treatment as opposed to drug investigations by police and prosecutors
- -- as is now the case.

Let's first dispose of the matter of confiscations, which is the least
important part of Question 8, and with which I am in agreement.

The Coalition for Fair Treatment points to the good citizen whose
daughter's boyfriend had an ounce of cocaine in the glove box while
they were riding in the family BMW. The good citizen loses his car,
then watches it being driven around town by the police chief. This
scenario is a distortion based on isolated incidents around the country.

The coalition also suggests that the state's district attorneys only
oppose Question 8 (as all of them do) because they do not want to give
up their unappropriated nest egg of confiscated trinkets and funds.
This, too, is a distortion: Fair Treatment singles out one of many
reasons that D.A.'s oppose Question 8 in order to make opposition seem
self-serving.

Nevertheless, although the present confiscation policy isn't known to
be corrupt in any county or community, and although the money involved
is not large, the present system is inherently corrupting. District
attorneys should get their rightful funds through normal
appropriations, as should chiefs of police. If Question 8 were only
about "unreasonable searches and seizures," it could be supported.

The matter of rolling back mandatory sentences can be argued both
ways. The argument for getting rid of them is that they fall
disproprtionately on poor communities and indigent defendants, and
they give too much power to district attorneys to extract plea
bargains. The 1996 Sentencing Commission made widely praised
recommendations for reform, which, for apparently self-protective
political reasons, legislators completely ignored.

The argument for keeping mandatory sentences says that the removal of
drug addicts and drug dealers from the streets of poor communities was
the proximate cause of the marked decline of crime in those
communities. It is too bad that many had to go to jail, but criminals
committing upwards of 200 felonies a year were making the law-abiding
majority prisoners in their homes. With mandatory sentencing, which
the public demanded, the sun came out in many places for the first
time in 30 years.

I believe that blinkered judges made mandatory sentencing an
historical necessity, but that it is time to begin moving away from
them. I know too many men who first were prisoners of public housing
and bad schools, who now talk of the prisons they were sent to the way
that some people talk about the colleges they went to.

But in Question 8, mandatory sentencing repeal is done by stealth in
the small print of Section 9, which amends several sections,
paragraphs and lines of Chapter 111E of the state General Laws.
Judging by his written summary of Question 8, not even Secretary of
State William Galvin knew that these obscure adjustments would repeal
many mandatory sentences. Such is not the way to rationalize
sentencing. Difficult though it may be, sentencing must be addressed
openly in the political and legislative processes.

The very worst of Question 8 is that by extending to all manner of
traffickers the appropriate right of possessory offenders to request
treatment, it creates a giant loophole for drug traders and their
profits. (By definition, traders seldom are addicts; if they become
known as such, they are pushed out of the business and sometimes
rubbed out of life.) Secondly, by simultaneously extending the right
of defendants to assert the right to request treatment from five days
after notification to just five days before trial, Question 8 empowers
dealers and their lawyers to tie court calendars in knots.

This year, Massachusetts will spend $153.9 million in state and
federal funds on drug treatment. A debate about the sufficiency of
those funds is a fair one, as are debates about the quantities
defining possessory offenses for different drugs; the socioeconomic
and racial effect of offenses selected for mandatory sentencing; and
legalization itself. But each of these debates should be waged openly
in the democratic process -- not with mush about treatment serving as
subterfuge for a hidden agenda. Question 8 should be defeated.