DRUG PENALTY DECRIED

Law's Author Protests Some College-Aid Loss

NEW YORK -- Given that she had been thrown out of the house by age 13
and spent her teenage years sleeping on subway trains and rotting
piers, Laura Melendez figured she had kept her nose pretty clean --
even managed to get a high school-equivalency diploma.

Sure, there had been a few arrests for smoking marijuana, but what did
this record really amount to after an entire adolescence spent on the
streets, with more visits from the police than from the parents who
threw her out for declaring herself a lesbian?

"It means I'll be denied an education," said Melendez, who is from the
Bronx and applying to college.

If Melendez, now 22, had been an armed robber, a rapist or even a
murderer, she would not be in the same predicament. Once out of
prison, she would have been entitled to government grants and loans.

But under a contentious provision of federal law, tens of thousands of
would-be college students have been denied financial aid because of
drug offenses, even though the crimes may have been committed long ago
and the sentences already served out.

"It is absurd on the face of it," said Rep. Mark Souder, R-Ind.

Souder, who wrote the law, says the Clinton and Bush administrations
have both turned it on its head, taking a penalty meant to discourage
students from experimenting with drugs and using it to punish people
trying to get their lives back on track.

"I am an evangelic Christian who believes in repentance, so why would
I have supported that?" he said. "Why would any of us in Congress?"

Since its enactment in 1998, the aid prohibition has been a sore
point, inciting debate and recriminations all around. Members of
Congress have accused the Clinton and Bush administrations of
distorting the law's intent. Education Department officials have fired
back, saying Congress handed them a vague and sloppy law -- referring
simply to "a student who has been convicted" of a drug offense -- that
they are faithfully enforcing.

Students are equally perplexed. After serving almost 10 years in
prison for attempted murder, Jason Bell went straight to college on
federal grants and loans. Now a senior at San Francisco State
University, he helps other ex-convicts enroll in the university but
often has the hardest time assisting drug offenders whose crimes were
minor -- far less serious than his.

"It's a form of double jeopardy," said Bell, 32. "They do the time,
but then there are still roadblocks when they finish. I don't believe
people should be punished twice."

Some members of Congress say they are pushing to rewrite the law for
precisely that reason. For the first time since the prohibition took
effect, the president's budget includes a commitment to revise it --
not to throw it out, but to narrow its scope so that students like
Melendez get a second chance.

"It would really take a lot off my mind," she said. "I need to go to
school. I can't just leave it like this."

Yet the changes would perpetuate what some members of Congress see as
the law's contradictions. Under President George W. Bush's language,
anyone who violated drug laws before going to college could get
financial aid, regardless of the offense. That would be in keeping
with Bush's philosophy, as laid out in his State of the Union address,
that "when the gates of the prison open, the path ahead should lead to
a better life."

But those already in college when they commit a drug offense, however
small, would be stripped of aid for at least a year. The idea,
supporters say, is to continue trying to dissuade students from using
drugs, especially since they are being educated with taxpayer money.

The problem, detractors say, is that the law would still impose
stiffer penalties on drug use than on any other crime.

"We should abolish the whole rule," said Rep. Barney Frank, D-Mass.
"Not that we should encourage drug use, but you shouldn't single that
out as being worse than rape or arson or armed robbery."

Souder doubts that the prospect of losing financial aid would deter a
murderer or a rapist, but says the same threat deters many students
from drug use. Some student counselors agree, arguing that at times
students wrestling with substance abuse need an extra incentive to
stay clean.

Critics, however, have an additional complaint: that the proposed
changes would have the odd effect of barring some first-time, minor
offenders from getting financial aid while restoring it for
ex-convicts who were serious drug offenders.

By his own count, Donald Miller, a 53-year-old freshman at York
College in Queens, was arrested 17 times for abusing drugs and
occasionally selling them, a result of what he describes as a
fruitless attempt to quiet his schizophrenia. It left him homeless and
addicted.

Now that Miller is sober and taking his medications regularly, he has
been confronted by the discouraging news that he is not eligible for
financial aid despite living on less than $600 a month. But under the
new rules, he almost certainly would be.

"It would mean that I could continue all the way through school," he
said.

On the other hand, there is the case of Marisa Garcia, a junior at
California State University, Fullerton. A few weeks before her
freshman year began, Garcia received a ticket for having a small
marijuana pipe in her car. It had some ashes in it, she admits.

That was her first and only offense. Accordingly, she paid a $415
fine. But she also lost her federal grants and loans for a year,
amounting to thousands of dollars. Under the revised rules, her
penalty would be no different.

"It doesn't make sense," Garcia said. "To punish someone by taking
away their education? It's counterproductive."

The law allows students to win back their aid by going through drug
treatment. But when Garcia looked into that option, all she could find
was residential counseling that cost as much as her tuition.

"If I couldn't afford to pay for school," she said, "then how was I
supposed to pay for these programs?"

Congressional supporters of the drug prohibition argue that students
should obey the law or surrender the privilege of financial aid for
college. But they also contend that the aid prohibition was never
meant to punish people for bad choices they made long ago. Given the
way the law has been applied, Souder says, students who have been
denied aid because of offenses committed before they were in college
should consider suing the government.

"I know as a conservative I'm not supposed to say this, but there are
lawsuits to be had here," he said.

Education Department officials strongly disagree, contending that
Congress passed a statute that does nothing to distinguish between
past and current offenses. By clarifying it, some lawmakers hope to
eliminate the confusion that has surrounded it since its inception.
But others worry that as long as students are asked on financial-aid
forms if they have had a drug conviction, many will simply assume that
they are ineligible for help.

"There's so much confusion about this law, and it ends up discouraging
people from moving forward with their lives," said Michael Dean, a
substance-abuse counselor in Denver. "At what point in our society do
we say that a person has paid the debt?"