WAR WITHOUT END

As Bob Carr and his colleagues prepare for the Drug Summit in nine days'
time, Marian Wilkinson examines the American experience and finds that a
hard-line prohibition policy has been an abject failure.

"It was like I went numb. I knew what it meant: it was mandatory life
without parole," the middle-aged African-American grandmother said in a
strained voice. She was recalling the day she was sentenced nearly 21 years
ago in Michigan, talking about the US justice system and the war on drugs
that determined she would die in prison after spending nearly all her adult
life behind bars.

Her crime was that, at age 23, she got involved with a man who was a drug
dealer. While he had been under investigation for nearly 12 months, she had
known him for less than 12 weeks. She had no criminal record and was never
once seen on police surveillance tapes of his deals. But the police arrested
him in her car with his stash in her boot - more than 650 grams of cocaine.

That was in September 1978 and JeDonna Young, then a young mother of a
seven-year-old child, was charged as a drug-dealing principal along with her
boyfriend. Tragically for her, just a few weeks before, Michigan's
Republican Governor, William Milliken, riding a law-and-order wave whipped
up by the State legislature, had signed a bill enacting one of the most
draconian drug laws in the country.

Anyone charged with selling or delivering more than 650 grams of cocaine or
heroin would be sentenced to mandatory life in jail. No parole. You die in
jail. JeDonna Young was the first person in the State convicted under the
new law.

The Michigan "650 Lifer Law" appealed to the law-and-order politicians here
attacking drug kingpins. By the end of the 1980s nearly every US State as
well as the Federal Congress had passed tough, "mandatory minimum" laws for
drug dealers, in effect taking sentencing out of the hands of judges and
putting it in the hands of prosecutors and police.

For two decades, as the war on drugs dragged on, in a Michigan prison
JeDonna Young studied law and tried to stay sane. "I kept very busy, I
prayed a lot and I put my faith in God's hands and humbled myself and that's
what brought me through," she recounts over the phone from Detroit.

In January this year, against all the odds, Young walked out of her Michigan
prison after 21 years behind bars. A Statewide campaign by judges, lawyers,
the Catholic Church, women's groups and prisoners' rights organisations
finally persuaded Michigan's politicians to show a little mercy.

The State passed an amendment to its "650 Lifer Law" allowing those
convicted, under special circumstances, the chance of parole if they had
served between 15 and 21 years in jail.

One prominent supporter of the campaign to amend the law was the politician
who introduced it, William Milliken. Deeply disturbed by what had resulted
from his actions, the former governor wrote to the parole board when he
heard JeDonna Young would finally be given the chance of release. His letter
read in part:

"I urge the board to consider releasing Mrs Young. The law under which she
was sentenced was passed almost 21 years ago. I signed that bill into law.
It was my intention and that of the legislature to go after 'kingpins'. If I
had realised the law would have been applied to individuals like JeDonna, I
would never have signed the bill."

Cases like Young's are so common in America that relatives are organising
politically. Calling themselves Families Against Mandatory Minimums, a
33,000-strong movement, they press for amendments to the drug-law sentencing
guidelines. They try to educate the public that the "war on drugs" is more
complex than rescuing the hopeless addict and locking up the kingpin drug
dealer.

While some of their cases may not merit much public sympathy, others show
the destructive impact of poll-driven devices such as "mandatory minimum
sentences", "three strikes and you're out" and "truth in sentencing" that
are so often favoured by politicians to tackle illegal drugs.

But most importantly, these cases are finally allowing credible opponents of
the war on drugs to argue that America's strategy of incarcerating its way
out of the drug problem is unfolding as one of its greatest domestic policy
failures.

Every 20 seconds, someone in the US is arrested for a drug offence. This
intense policing effort, combined with the increasingly harsh penalties, has
led to a staggering increase in the number of people behind bars.

From the Civil War last century until the 1960s, America's rate of
imprisonment was relatively stable, and most inmates were inside for violent
crimes. Since the war on drugs began just 20 years ago, the prison
population has trebled and most inmates are inside for non-violent crimes.

Close to two-thirds of all the men and women in Federal prison today are
there for drug offences, the overwhelming majority of them non-violent.

The State prisons are following the trend. Almost one quarter of their
inmates are drug offenders, and in States such as California the numbers are
increasing at a frightening rate. California has more people behind bars for
drug offences than its entire prison population in 1980.

Today, according to the US Justice Department, one in every 150 Americans is
incarcerated. By next year, nearly 2 million Americans will be behind bars,
giving this country the highest imprisonment rate in the world. Almost half
of these inmates will be black and another 400,000 will be Hispanic.

Mark Mauer, a criminologist with a Washington think-tank, the Sentencing
Project, who tracks these figures, is in no doubt what they mean: "Drug
policies constitute the single most significant factor contributing to the
rise in the criminal justice populations in recent years," he says. "No
other society in human history has ever
imprisoned so many of its own citizens for the purpose of crime control."

Under drug laws passed by the US Congress in the 1980s, anyone who possesses
or distributes more than five grams of crack cocaine, worth about $US500,
must be sentenced to a mandatory minimum of five years in prison for a first
offence. More than 50 grams of crack will get the offender a 10-year
mandatory sentence. A prior conviction or the use of a firearm will, of
course, mean a much heavier penalty.

By contrast, traffickers in powder cocaine can carry 100 times that quantity
before they are liable for the same mandatory sentences. While there is
little chemical difference between the two forms of cocaine - crack can be
smoked and will give a quicker rush - there is a huge political difference.
Crack was the ghetto drug of the 1980s, associated with the violent drug
turf wars in America's big cities.

Nearly 90 percent of those charged with crack offences and sentenced to
mandatory minimum sentences in Federal prison are black. And in Los Angeles,
almost 10 years after the crack laws were passed, a Los Angeles Times survey
found that not one white person had been arrested on crack charges.

But the most controversial aspect of these drug laws is the power they put
in the hands of prosecutors and police. If a dealer "co-operates" with
information of interest to the prosecutor, he can be charged with a lesser
offence or one not carrying a mandatory sentence. Because the low-level
dealers - the addicts, the couriers and the girlfriends - have less useful
information to trade, they often go down for longer, harsher sentences than
the principals.

That is what happened to Nicole Richardson, a young, white woman from
Mobile, Alabama, who began dating a small-time cocaine and LSD dealer in
high school when she was 17. She went on a few drug deals with him until
things got heavy, so tried to drop out of the scene. By then her boyfriend
was under investigation by the Drug Enforcement Agency over a $US5,000 LSD
deal. Richardson's involvement led to Federal charges against her as well as
her boyfriend in 1992 for conspiracy to distribute LSD.

Richardson's boyfriend had information to trade with the DEA, but she did
not. Although she had no criminal record, under Federal "mandatory minimum"
sentencing laws for drug dealers, Richardson was given 10 years without parole.

Her boyfriend and his friends got five years or less. The judge who
sentenced Richardson called her case a "top example of a miscarriage of
justice" and attacked mandatory minimum sentencing, but Richardson is still
in jail.

The overwhelming majority of America's judges, in survey after survey, have
expressed deep concern about mandatory minimum sentences in drug cases. Some
have resigned in anger and some even refuse to hear drug cases. Others, such
as Judge Stanley Sporkin of the Federal Court, are trying to reform the
system by speaking out.

Appointed to the Bench by Ronald Reagan, Sporkin is one of a growing number
of judges challenging Congress to re-examine mandatory minimums and
sentencing guidelines, especially in drug cases.

Addressing members of the Senate judiciary committee, Sporkin gave the
politicians a rare insight into the impact of their law-and-order policies
using a few cases from his own courtroom.

As he tried to explain, "Recently, I was told that under the sentencing
guidelines, I would be required to essentially sentence a drug addict to a
10-year period of incarceration. If this person were from a different
socioeconomic background, he would have gone to the Betty Ford Clinic for 60
to 90 days. As I contemplated the sentence I would have to impose, all that
came to mind was a modern-day version of Les Miserables."

As an example, he said, "there is one case where I had to sentence a
49-year-old woman to 21 years in prison for selling $25 worth of crack to an
undercover officer". (It was her third offence.)

"In another case, a defendant faced a 30-year sentence for selling 6.7 grams
of crack to an undercover officer to whom the seller was attracted for the
wrong, improper purpose. I was able to pare the sentence down to about seven
years, but even that was too long. This individual was as much a threat to
society as my eight-year-old grandson."

Taking time out from his cases, Judge Sporkin had a warning for Australia's
politicians: if they are looking at this kind of law-and-order sentence to
fight the drug war, "they should send a group of people over here to
investigate it".

Mandatory sentences and tough guidelines are popular with politicians
because, Sporkin says, "the public are looking for the quick fix or the
magic bullet. Yes, drugs are a terrible problem and there is a way to deal
with them, but not the way we have found. There are some people where you
want to throw away the key, but there are too many other instances in which
you are sending people to unconscionable sentences and they don't belong in
jail."

In Washington DC, where Sporkin sits in session, one half of all black men
between the ages of 18 and 35 are under some form of criminal justice
supervision, according to the National Centre on Institutions and Alternatives.

While the social cost of America's war on drugs is alarming, so, too, are
the economic costs. When Jimmy Carter was still president in 1980, the
Federal budget for the war on drugs was about $US1.5 billion. Last month,
Bill Clinton's drug tsar, General Barry McCaffrey, asked the Congress for
$US17.8billion for the same task.

Despite this human and economic cost, the gains in the war on drugs have
been questionable. A senior Californian judge, James Gray, calling for a
serious policy rethink, put it bluntly: "In the 'war on drugs', victory is
now literally being viewed as slowing down the pace of defeat."

When McCaffrey testified a few weeks ago that the supply of cocaine in
America was at its lowest since the 1980s, he ignored the key indicator
showing that cocaine is just as accessible as it was 20 years ago - its
price. Cocaine is in fact cheaper today in America than it was in the 1980s.

And on the general's own figures, heroin is cheaper and purer than it was at
the start of the decade. The White House, in measuring success, points to
the big decline in the number of Americans using illegal drugs "casually"
since the late 1970s, a drop of almost 50per cent. These figures, however,
include those baby boomers who smoked
marijuana or hashish a few times a year, along with people heavily abusing
cocaine and heroin.

An equally important figure when looking at the impact of illegal drugs and
criminality is the number of hard-core users, the cocaine and heroin addicts
who consume the great bulk of the illegal drugs and
generate most of the criminal activity. That figure has risen 10 times since
the 1960s, and stands at more than 4million Americans.

These contradictions hit Michael Massing when he was writing The Fix, a
history of America's war on drugs. Massing found that during the Reagan and
Bush administrations of the 1980s, the drug control budget was largely
directed towards a policy that called for "zero tolerance" of illegal drug
use. The idea was to cut off supply, lock up dealers, and persuade people to
"say no to drugs".

The policy was driven far more by ideology than reality. Conservative parent
groups with direct access to the White House wanted a strategy that
essentially protected middle-class kids from the dangers of illegal drug use
and lobbied for increasingly tough penalties for drug dealers.

In reality, as Massing found, while the teenage user is obviously of great
concern to parents and politicians, only a small number go on to be hard
drug abusers. These hard-core abusers make up just 20 percent of all illegal
drug users but consume about 75per cent of all the cocaine and heroin.

According to all the research, Massing says, these hard-core users "are
disproportionately poor, unemployed and members of minority groups" from the
tenements and housing projects of urban America. "Even among whites, the
typical addict is not a model or musician but a truck driver, construction
worker, or other member of the working class - a group often invisible to
the celebrity-hungry media."

While not ignoring efforts at drug education and treatment in schools and
colleges, most credible experts here believe it is the hard core, often
underclass, of drug abusers that needs to be targeted with treatment
programs and dollars if society wants to control the worst consequences of
drug abuse: criminality, welfare fraud, child abuse, family breakdown and
the spread of diseases such as AIDS and hepatitis C.

The policies adopted during the Reagan and Bush years managed to do just the
opposite. The law-and-order strategy swept up a vast number of recreational
and hard-core users and sellers, criminalising and incarcerating them at
unprecedented levels. At the same time, the White House was openly hostile
to the notion of treating addicts. Drug treatment programs in the inner
cities found their budgets savaged just as crack was hitting the streets.
Overdoses, drug-related HIV infection and drug use by pregnant women all soared.

Watching this politicking from the front line was Dr Jerome Jaffe, one of
the most experienced drug policy experts in America today. In 1970, Jaffe
left one of the first heroin treatment centres in Chicago to run the first
"war on drugs" from the White House for Richard Nixon. Back then, a heroin
epidemic was hitting US cities, fuelled in part by the Vietnam War.

Jaffe persuaded Nixon to direct real money into a new offensive for
treatment and rehabilitation in the inner cities and for detoxing soldiers
returning from Vietnam. Three years later, the Nixon White House could point
to some measure of success. In cities such as New York, San Francisco and
Washington, drug overdoses fell. In New York, drug-related hospital
emergency cases fell along with drug-related hepatitis cases. Most
importantly, in New York and Washington, crime rates also fell.

Today, Jaffe still consults on drug treatment but he despairs over drug
policy. "Things are so open to demagogy in this country, if you say anything
that sounds as if we ought to do something a little different, you're
immediately accused of being a legaliser," he explains from his home in
Baltimore.

His research convinced Jaffe that spending enormous resources on policing at
the expense of treatment is a mistake. "If the price of the drugs hasn't
gone up and the availability has not decreased, what does that mean about
the effectiveness of our efforts to interdict?" he asks. "It certainly
suggests that the producers can expand a bit faster than we can interdict.
That doesn't necessarily mean you legalise everything, but it does mean that
you're not going to be able to put more and more resources into interdiction
and expect a better
outcome than you had the time before."

With his three decades of experience in drug treatment, Jaffe does not
underplay its difficulties or its failure rate. But he points out that the
failure rate for treating alcoholism and other mental disorders is also
high. Most importantly, the few long-term studies done in the US show that
while outright "cures" for drug abuse are not common, good treatment
programs can dramatically cut levels of heavy drug use and criminal activity.

The conservative Rand think-tank in California, in a 1994 study, found that
even with its failure rates, treatment was far cheaper than law enforcement
in cutting drug abuse and criminality. While those findings have proved
highly controversial and are subject to review, Dr Jaffe believes the
evidence in the field demonstrates the value of treatment and
rehabilitation. But the failure rate still causes politicians to baulk.

"The Congress and the States just have more of a belief in the efficacy of
interdiction than they do in the value of helping people recover. That seems
to run counter to the evidence," Jaffe muses. "Interesting problem. What do
you do when the evidence doesn't impress anybody?"

Recently Jaffe has been a keen observer of the Swiss heroin trial,
maintaining addicts on heroin rather than the usual methadone. But unlike
some advocates who are lobbying for a similar trial in Australia, he sees
the debate as a side issue. Just "giving them the medicine" is only one
aspect of treating drug abuse, he says. Counselling services, job programs
and social support are also vital.

He argues that because heroin maintenance of addicts is much more expensive
and cumbersome to administer than methadone, the real question it raises is,
where do you want to put your marginal dollar for treatment?

Today in the US, only some 15 to 20per cent of hard-core users get into
treatment programs. And indications are that white addicts are given
preference over minorities, even in diversion programs such as the drug
courts. While the Clinton Administration has increased funding for
treatment, it is still a fraction of the budget for policing.

The White House and Congress remain determined to pursue a punitive
strategy, despite the evidence they are stuck in a quagmire. While judges,
human-rights lawyers, health experts and even former politicians are
prepared to question the strategy publicly, few serving politicians will
join them in the near future, according to a former senior congressional
adviser, Eric Sterling.

As counsel for the House judiciary subcommittee on crime throughout the
1980s, Sterling helped write many of the harsh anti-drug laws in force
today. Now he lobbies to reform those laws, but says politicians are hostile
and scared of being seen as "soft on crime" by the voters.

"The political marketplace in fighting crime is like a Sotheby's auction,"
he explains. "Part of why the prices go up is that everybody benefits. In
the fight against drugs and crime, neither party has any benefit in creating
a deflationary spiral."

For Sterling, the human toll of thousands of JeDonna Youngs incarcerated for
decades or for life will not move the politicians. But, like other critics
of US drug policy, he concedes that self-interest may finally cause a policy
rethink when voters realise the prisoners in the war on drugs are devouring
more and more of their taxes. It is a lesson that Australia's premiers also
need to appreciate.

To lock up a woman such as JeDonna Young costs about $US22,000 a year, but
once she begins to age in prison, that cost soars. After 55, as a prisoner's
health and productivity deteriorate, the cost of housing him or her in a
State jail can be as high as $US60,000.

In California, New York, Texas and Florida, where drug offenders sentenced
to lengthy mandatory terms are swamping prisons, the corrections budget is
quadrupling, eating into funds for education, transport and health. The
American Justice Policy Institute reports that three years ago, US State
government bond-raising for prison
construction actually surpassed higher education.

As the war on drugs bogs down, the financial costs may finally force
America's politicians to break ranks.

Dr Jaffe certainly hopes so, but he is pessimistic. "I always thought that
when people saw how much more efficient treatment was, it was what we call
here a 'no brainer' - you don't have to be a genius to figure this thing
out," he says with some exasperation. "But the electorate is not
sufficiently sophisticated in accounting principles to understand what kind
of tax they're putting on themselves and their children."