DESPITE BUSH STANCE, TEXAS DRUG LAWS CHANGED LITTLE

AUSTIN -- In his 1994 campaign for Texas governor, George W. Bush accused
incumbent Ann W. Richards (D) of being soft on crime, attacking her for
signing a law that required probation for felony defendants convicted of
possessing or distributing less than a gram of certain drugs, including
cocaine.

The law, which prevented small-time drug violators from being jailed, "sends
the wrong message to felons," Bush wrote in the Houston Chronicle a few
weeks before defeating Richards that year. "I will change it," he said.
"Hard prison time, not automatic probation, will send a message that
criminals cannot snub their nose at Texas's criminal-justice system."

Five years later, with Bush the front-runner to be the 2000 Republican
presidential nominee, his record and rhetoric on drugs have come under close
scrutiny. Pressed by reporters on whether he ever used cocaine, Bush first
refused to answer the question, then effectively ruled out any drug use
since 1974, when he was 28. But by leaving open the possibility that he used
illegal drugs while an adult, he invited criticism that a hard-line position
on drug use was hypocritical.

Jesse L. Jackson, for example, said that Bush was "a rich man's son . . .
caught in a poor man's trap" and therefore would be forced to modify his
strict position on drug use.

However, interviews with criminal justice experts here suggest that despite
Bush's rhetoric during the 1994 campaign, the state has not substantially
increased penalties for drug offenders. The system of drug laws in place
before Bush's election, according to the experts, remains fundamentally the
same. And while Bush did sign a law eliminating mandatory probation for
possessing or distributing small amounts of drugs, it had a relatively small
effect on how Texas judges have administered the drug laws.

The idea that Bush has crusaded against drug violators "is the premise from
which people operate when they ask the hypocrisy question," said Bud
Kirkendall, a Bush supporter and president-elect of the Texas District and
County Attorneys Association. But "it's a false premise," said Kirkendall, a
Republican prosecutor, noting that Bush's anti-crime agenda has focused
mainly on sex offenders and violent juveniles.

Michael Heiskell, president of the 2,100-member Texas Criminal Defense
Lawyers Association, agreed. "He hasn't revolutionized the [drug law] system
or even changed it in any significant way," Heiskell said of Bush.

As he campaigns for his party's presidential nomination, Bush can point to
Texas laws making it easier for the state to curtail drug violators' driving
privileges and welfare benefits. He also has signed laws enhancing penalties
for drug crimes in school zones and making it possible for 14-year-old
defendants to be sentenced as adults for major felonies, including those
involving drugs.

In practice, however, those laws have not generated a rush of new drug
prosecutions or resulted in longer prison terms for a large number of
offenders, according to court officials and others who monitor the system.

For example, during Richards's term, 1991 through 1994, an average of 26,457
new felony drug cases were filed annually in Texas, according to the state
court system's administrative office. The annual average during Bush's first
four years as governor, 1995 through 1998, was 26,597, the office said.

And even though Texas's prison system has vastly expanded under a $2 billion
building program begun while Richards was governor, the number of inmates
incarcerated for drug offenses has barely changed from year to year during
Bush's term, according to the Texas Department of Criminal Justice, which
runs the prisons. In fact, the figure has dropped slightly, from 31,200
shortly after he took office to 28,600 as of last summer, the department
said.

The law on 14-year-old defendants allows frequent juvenile offenders to be
"certified" as adults for crimes including murder and other violent felonies
and for drug crimes punishable by at least five years in prison, such as
possessing 200 or more grams of cocaine. But few if any 14-year-old drug
violators have been prosecuted under the law, which took effect in January
1996, said Tony Fabelo, director of the Texas Criminal Justice Policy
Council.

The biggest change in Texas drug laws this century occurred in the early
1970s, when the state legislature scrapped a Draconian narcotics code that
had been in place for generations. It was simple and uncompromising:
Possessing almost any illegal drug in any amount was punishable by a minimum
of two years in prison and up to life--punishments that were imposed
disproportionately on blacks and Hispanics, according to lawyers who
practiced at the time.

The new statutes, which took effect in 1974 and have been modified many
times since, set graduated penalties for possession and distribution based
on weight and type of drug, a sentencing scheme common in state courts
across the country.

Bush's record on drug laws can best be understood in the context of the huge
changes made to Texas's criminal justice system in the early '90s, under
Richards, in response to a decade of rising crime and a shortage of prison
space, lawyers and judges said.

The mandatory-probation provision, for example, was a far more complicated
issue than Bush made it seem in his criticisms of Richards during the 1994
campaign. Although Bush cast it as a question of philosophy, the provision,
according to criminal justice experts, was part of the process of creating
the mostly smooth-running criminal justice system that he eventually
inherited.

By the late '80s, rising crime had left Texas's then-undersized prison
system in a crisis. Tens of thousands of convicted defendants were being
kept in county jails awaiting transfers to state penitentiaries that had no
room for them. Out of necessity, Texas's annual parole rate--the number of
paroles approved as a percentage of cases reviewed--hit an all-time high of
79 percent in 1989 under then-Gov. William P. Clements, a conservative
Republican.

Horror stories abounded of violence committed by longtime criminals released
from Texas's "revolving door" prisons. Under Richards, the state not only
embarked on the $2 billion prison-building program, which would take several
years to complete, but drastically reduced parole approvals. By 1994, her
final year in office, the rate was 29 percent, according to corrections
officials.

To clear penitentiary space so violent offenders could be held longer,
legislators in 1993 created a new category of crime called a "state jail
felony." Many low-level, nonviolent felonies--including possessing or
distributing less than a gram of certain drugs--no longer would be
punishable by penitentiary time. Violators would be sentenced to
lower-security state jails for 180 days to two years.

There are 17 such jails today, but in the early 1990s there were none. Until
they could be built, and until officials could gauge how many defendants the
new crime classification would produce each year, the law (signed by
Richards) required that a convicted jail-felon was to receive
probation--although the probation could be revoked for a second offense and
the violator locked up.

The probation provision was devised with the expectation that it would be
eliminated once the criminal justice system had adapted to the new statute,
according to lawyers and others involved in drafting it. Although judges and
law enforcement officials hated it, "they went along with it, with the
promise that it would be changed in time," said John Bradley, a former state
Senate legal counsel who helped write both the provision and its subsequent
repeal under Bush.

"Ann Richards was no more in favor of automatic probation than anyone else,"
said Ken Anderson, a Republican district attorney near Austin and author of
a guidebook to Texas criminal laws and courts. "She knew she was going to
get creamed on it. Everybody knew that. But it had to be done, temporarily."

Bush signed a law eliminating the provision in 1997--by which time all the
new state jails, conceived under Richards, were up and running. Yet even
with the provision gone, the majority of small-time drug offenders who
automatically would have been spared incarceration under the original law
are routinely granted probation anyway, according to prosecutors, judges and
defense lawyers--although judges now have the discretion to lock up the
relatively small percentage of violators whom they feel deserve it.

As of February, 57,000 convicted jail-felons were "under supervision" in
some form, about half of them drug violators, said Fabelo of the Criminal
Justice Policy Council. Of that total, he said, 45,000 were free on
probation.

"I've called [Bush] a good steward of the system," Kirkendall said. But by
the time Bush arrived, "the system was already in place."