A GET-TOUGH POLICY THAT FAILED:

Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why
It's Not Working

Remember little Polly Klaas? She was the 12-year-old Petaluma, Calif., girl
whisked from a slumber party in 1993 and found murdered two months later.
Her father Marc, horrified to learn that her killer was on parole and had
attacked children in the past, called for laws making parole less common.
He joined with others backing a "three strikes and you're out" law for
California--no parole, ever, for those convicted of three felonies. Klaas
went on TV, got in the papers, met the President--all within weeks after
his daughter's body was found.

Then he began studying how the three-strikes law would actually work. He
noticed that a nonviolent crime--burglary, for instance--could count as a
third strike. "That meant you could get life for breaking into someone's
garage and stealing a stereo," he says. "I've had my stereo stolen, and
I've had my daughter stolen. I believe I know the difference."

Klaas began speaking against three strikes. But his daughter had already
become a symbol for the crackdown on crime, and California's legislature
passed the three-strikes law. It now seems politically untouchable, despite
horror stories like the one about a Los Angeles 27-year-old who got 25
years to life for stealing pizza. Last year two state senators tried to
limit the measure to violent crimes, but the bill didn't make it out of
committee. Governor Pete Wilson vetoed a bill simply to study the effects
of the law.

Wilson probably knew what the study would conclude: while three-strikes
laws sound great to the public, they aren't working. A growing number of
states and private groups have scrutinized these and other
"mandatory-minimum laws," the generic name for statutes forcing judges to
impose designated terms. The studies are finding that the laws cost
enormous amounts of money, largely to lock up such nonviolent folks as
teenage drug couriers, dope-starved addicts and unfortunate offenders like
the Iowa man who got 10 years for stealing $ 30 worth of steaks from a
grocery store and then struggling with a store clerk who tackled him (the
struggle made it a felony).

How much are we spending? Put it this way: mandatory minimums are the
reason so many prisons are booming in otherwise impoverished rural counties
across America. The U.S. inmate population has more than doubled (to nearly
2 million) since the mid-'80s, when mandatory sentencing became the hot new
intoxicant for politicians. New York (the first state to enact mandatory
minimums) has sloshed $ 600 million into prison construction since 1988;
not coincidentally, in the same period it has sliced $ 700 million from
higher education. Americans will have to spend even more in the future to
house and treat all the aging inmates. California has already filled its
114,000 prison beds, and double-bunks 46,000 additional inmates.

More important, mandatory minimums for nonviolent (and arguably victimless)
drug crimes insult justice. Most mandatory sentences were designed as
weapons in the drug war, with an awful consequence: we now live in a
country where it's common to get a longer sentence for selling a neighbor a
joint than for, say, sexually abusing her. (According to a 1997 federal
report, those convicted of drug trafficking have served an average of
almost seven years, nearly a year longer than those convicted of sexual
abuse.) Several new books, including Michael Massing's The Fix, point out
that the tough-on-drugs policies of the past 15 years haven't had much
impact on the heart of the drug problem, abuse by long-term urban addicts.
Even the usually hard-line drug czar Barry McCaffrey has written that "we
can't incarcerate our way out of the drug problem." He has urged Congress
to reduce mandatory minimums for crack, which are currently 100 times as
heavy as those for powdered coke and impact most on minority youth.

This injustice is most palpable on city streets. In places like New York
there are more black and Hispanic kids in prison than in college. That
injustice may have played a role in the fate of Derrick Smith, a New York
City youth who in October faced a sentence of 15 years to life for selling
crack. At the sentence hearing a distraught Smith told the judge, "I'm only
19. This is terrible." He then hurled himself out of a courtroom window and
fell 16 stories to his death. "He didn't kill anyone; he didn't rob
anyone," says his mother. "This happened because we are black and poor."

Worst of all, mandatory minimums have done little to solve the problems for
which they were crafted. Casual drug use has declined since the 1970s, but
the size of the addict population has remained stable. And even
conservative criminologists concede that demographics (i.e., fewer young
men) and better policing are more responsible for the dropping crime rate
than criminals' fear of mandatory minimums. John DiIulio Jr., the Princeton
professor who wrote a 1994 defense of mandatory sentencing for the Wall
Street Journal with the charming headline LET 'EM ROT, now opposes
mandatory minimums for drug crimes. He points out that more and more young,
nonviolent, first-time offenders are being incarcerated--"and they won't
find suitable role models in prison."

But even some older, repeat offenders are getting punishments that seem
ridiculously disproportionate to their crimes. Consider Douglas Gray, a
husband, father, Vietnam veteran and owner of a roofing business who bought
a pound of marijuana in an Alabama motel for $ 900 several years ago. The
seller turned out to be a police informant, a felon fresh from prison whom
cops paid $ 100 to do the deal. Because Gray had been arrested for several
petty crimes 13 years earlier--crimes that didn't even carry a prison
sentence--he fell under the state's "habitual offender" statutes. He got
life without parole.

The good news is that a consensus is emerging among judges (including
Reagan-appointee Chief Justice William Rehnquist), law enforcers and crime
experts--among them many conservatives who once supported the laws--that
mandatory minimums are foolish. The Supreme Court last week declined to
hear a case challenging the California three-strikes law, but four Justices
expressed concern about the law's effect and seemed to invite other
challenges. A fewbrave politicians have gingerly suggested that the laws
may be something we should rethink. Some states are starting to backtrack
on tough sentencing laws:

- --MICHIGAN Last February former Republican Governor William Milliken called
the "650 Lifer Law" his biggest mistake. The 1978 law mandated a
life-without-parole term for possession with intent to deliver at least 650
g (about 1.4 lbs.) of heroin or cocaine. But though the law was intended to
net big fish, few major dealers got hit. In fact, 86% of the "650 lifers"
had never done time; 70% were poor. "A lot of them were young people who
made very stupid mistakes but shouldn't have to pay for it for the rest of
their lives," says state representative Barbara Dobb, the Republican who
began a reform effort. In August, G.O.P. Governor John Engler signed a law
allowing 650 lifers to be paroled after 15 years.

- --UTAH In March 1995, Republican senate president Lane Beattie, concerned
about the excesses of mandatory minimums, introduced a bill to eliminate
them in certain cases. Worried about the political fallout, he did so near
midnight on the last day of the legislative session. The bill passed
quietly, without debate, but victims' groups noticed. Though a public
outcry followed, the G.O.P. Governor said he agreed with the bill and
refused to veto it.

- --GEORGIA In the final minutes of the 1996 legislative session, state
lawmakers nixed mandatory life sentences for second-time drug offenders.
State statistics showed that four-fifths of those serving life had hawked
less than $ 50 in narcotics. Even state prosecutors backed the change.

- --NEW YORK John Dunne, a former Republican legislator who helped devise the
Rockefeller Drug Laws, the mandatory-sentencing legislation promulgated in
the 1970s by Governor Nelson Rockefeller, is lobbying to end them. "This
was a good idea 25 years ago, but the sad experience is that it has not had
an effect," says Dunne, who also served in the Bush Administration. "Behind
closed doors, virtually everyone will say these drug laws are not working,
but they cannot say that publicly."

Certainly no one in Washington is saying it publicly. The House Judiciary
Committee didn't even hold hearings on the bill that created the current
minimums, which coasted to victory just in time for the 1986 midterm
elections. Congress and the President last year added a new mandatory
minimum to the books: five years for 5 g of crystal meth, the crack of the
'90s. Mandatory minimums remain political beasts, and it would probably
take Nixon-goes-to-China leadership from a Republican to turn public
opinion against them. Either that or more Jean Valjeans serving 10-year
sentences for stealing steaks.

BOX STORY:

2 million Number of people behind bars in the U.S., including local
jails--twice as many as a decade ago

60% Portion of federal prisoners jailed for drug crimes, up from 38% before
mandatory-sentencing laws were passed in 1986

36% Portion of drug offenders who committed nonviolent, low-level crimes