PUNISHING THE COUNTRY

As we enter the new millennium, the population of America's prisons and
jails is approaching two million. It will pass that mark, according to the
Justice Policy Institute in Washington, around Feb. 15.

In the entire world about eight million people are incarcerated, so a
quarter of them are in this country.

The number of prisoners has been growing at an extraordinary pace, up 70
percent in the last 10 years. We have overtaken Russia for the honor of
having the world's highest incarceration rate.

All this has a profound social cost. Since 1995 the states have spent more
on prison than on university construction. Operating prisons in the year
2000 will cost about $40 billion.

And of course it is not just the money. Two-thirds of the prisoners are
there for nonviolent offenses. Chances are good that by the time they are
released -- after sentences that are among the longest anywhere -- they will
be thoroughly brutalized.

The figures are so stunning that even some experts known for taking a hard
line on crime think it is time for a reappraisal of criminal justice
policies. One is Prof. John J. DiIulio Jr. of Princeton. He summed up his
view in The Wall Street Journal in March under the headline "Two Million
Prisoners Are Enough."

"The value of imprisonment is a portrait in the law of rapidly diminishing
returns," Professor DiIulio said. He noted that correctional costs were
squeezing money for policing. He urged officials everywhere to maintain
gains in public safety "while keeping the prison population around two
million and even aiming to reduce it over the next decade."

To that end he suggested, first, repealing mandatory-minimum drug sentencing
laws. Since 1973 the Rockefeller drug laws in New York State have imposed
fixed terms running from 15 years to life for all kinds of offenses. Federal
laws also include many mandatory minimums.

The result of fixed sentences is to put hundreds of thousands of nonviolent
drug offenders away for many years, at great cost to them and to us. About a
quarter of those in American prisons and jails are drug violators, according
to the Justice Policy Institute. Their number has gone up sevenfold in the
last 20 years.

Professor DiIulio called for the release of nonviolent offenders imprisoned
only for drug violations. He also urged that drug treatment be required for
users, in prison and afterward.

Legislation that requires extremely long sentences for drug and some other
crimes is a political phenomenon of the last 25 years or so. Few
politicians, state or national, have been willing to challenge the mantra of
"toughness on crime" -- willing to look at the harsh consequences of such
rigidity, human and societal.

Mandatory-minimum sentences seem to me to reflect the delusion that
eliminating the element of judgment will make the criminal justice system
work better. Absolute rules assure certainty. But they also assure
injustice.

Leaving too much discretion to judges risks uneven sentences. Leaving none
produces equally harsh sentences for situations and individuals that demand
different treatment. The same delusion mars the 1996 Immigration Act, with
its requirement of automatic deportation for minor crimes.

The other distinctive feature of criminal justice in the United States is
capital punishment. All other Western countries have given it up as an
atavistic barbarity. It continues here despite a growing number of releases
of death-row prisoners after last-minute proof of their innocence.

Study after study has shown that executions do not deter further murders.
Yet George W. Bush has defended the death penalty on the ground that it
"will save other innocent lives."

As governor of Texas, Mr. Bush has presided over 113 executions, more than
any other governor in modern times. A compelling Boston Globe story by John
Aloysius Farrell pointed out that in the next five weeks Governor Bush must
deal with five more scheduled deaths, one of a prisoner with a mental age of
7, two others who committed their crimes as juveniles.

Mr. Bush's action in those cases, and the public reaction, will tell much
about his and our humanity.