RETHINKING THE KEY THROWN AWAY

Last week, John Ashcroft, the tough-on-crime attorney general, gave
federal prosecutors orders to all but eliminate plea bargaining with
defendants and, almost without exception, prosecute the most serious
charges they can prove.

Meanwhile, from Connecticut to California, legislatures and governors
are, with a few exceptions, eagerly finding new ways to reduce,
rethink or eliminate prison sentences for crimes within their
jurisdictions.

The result is a somewhat contradictory national crime-fighting agenda:
as the Ashcroft Justice Department demands the harshest prison terms
and goes out of its way to track federal judges who do not give them,
state lawmakers are openly advocating less time for the same crime and
giving judges more discretion in choosing punishments.

"To just say everybody should go to jail all the time is unfair and
very simplistic," said Michael P. Lawlor, a Connecticut state
representative and co-chairman of the General Assembly's Judiciary
Committee, which is considering several bills that offer drug-addicted
and mentally ill criminals alternatives to incarceration.

That states and the executive branch in Washington differ on policy is
not surprising. But experts say it is eye-opening how divergent each
side views their common mission of cutting crime.

"The states and the federal government are moving in quite different
directions," said Frank Bowman, a former federal prosecutor who is a
professor at the Indiana University School of Law.

At the Justice Department, he said, "you have a group of people in
control who really are true believers in incarceration. They have
almost religious zeal to see that people get sentenced to prison for a
long time."

At the same time, Professor Bowman added, in dozens of states with the
toughest laws on nonviolent crime, including New York, Texas and
California, "people are scratching their heads and saying, `You know,
incarcerating people for that long doesn't work.' "

The differences are partly a matter of ideology, politics and, in the
case of nearly every state government, money.

"States just don't have the money, so there is this incredible
willingness from folks on both sides of the aisle to come together and
talk about these things," said Daniel F. Wilhelm, director of the
state sentencing and corrections program at the Vera Institute of
Justice, a Manhattan-based nonprofit group.

Mr. Ashcroft has often said that taking criminals "off the street and
keeping them off the street reduces crime." To Representative Lawlor,
a moderate Democrat, and to lawmakers from both political parties
across the nation, that is a simplistic conclusion, one their states
can no longer afford to make. "We just want to be a little more
careful about who we send to jail," Mr. Lawlor said. "Kind of the
opposite of what the attorney general is saying."

The federal prison system now comprises more than 172,000 inmates, a
larger and faster growing prison population than any single state's,
including California and Texas, which each hold roughly 163,000
prisoners. In a speech on Monday announcing his new directive to
prosecutors, Mr. Ashcroft said it was aimed at putting away "child
predators, criminal bosses, drug kingpins and violent gun criminals."

It may do that, critics of the new policy say, but it will also send
away far more young, first-time, nonviolent offenders -- criminals for
whom a reasonable hope of rehabilitation still exists. Moreover, more
than half of the federal inmates -- 55 percent -- were convicted of
relatively unspectacular drug-related crimes, according to the federal
Bureau of Prisons.

Inmates convicted of weapons or immigration charges make up 22 percent
of federal inmates. Murderers and sex offenders, by contrast, make up
only 5 percent, and major drug traffickers represent less than 1
percent of prisoners in the federal system.

Thus, despite Mr. Ashcroft's tough words, many criminologists say his
new directive will not significantly change the number of years the
worst criminals spend in prison.

"It's not as if those types of people aren't serving a huge amount of
time already," said Michael P. Jacobson, a professor at the John Jay
College of Criminal Justice.

Mr. Jacobson, a former New York City correction commissioner, is also
a consultant to lawmakers in several states where interest in reducing
or eliminating prison sentences has flourished as a way to not only
trim insatiable prison budgets, but also to cut recidivism.

James Austin, director of George Washington University's Institute on
Crime, Justice and Corrections, said officials in many states had been
persuaded that harsh sentencing laws do not work. "There's a growing
recognition that they may have gone too far," he said.

Last year, California, where the Department of Corrections consumes
about 6 percent of the state's trillion-dollar budget, began allowing
first- and second-time nonviolent drug offenders to choose treatment
programs instead of prison time. Budget officials predict the change
will cut the state's prison population by 36,000, or 22 percent, and
save $250 million over three to four years.

This year, several large states enacted laws to reduce or do away with
prison sentences for certain nonviolent criminals, according to a
study of prison-related legislation by the Vera Institute.

The Legislature in Texas, a state long proud of its hard-knuckle
approach to crime, passed a law requiring treatment instead of
incarceration for drug offenders. Another law requires courts to
sentence certain first-time drug offenders to probation, saving an
estimated $30 million over five years.

In Kansas, a new law requires first- and second-time drug offenders to
be sent to counseling instead of prison, at about one-fifth the cost.
Three new laws in Michigan eliminated most of the state's mandatory
minimum sentences for drug crimes and give judges new discretion to
vary sentences based on factors other than the weight of the drug
seized, as previous laws required.

Despite widespread public support and a near certain cost savings, New
York's governor, George E. Pataki, a Republican, and Democratic
legislative leaders failed -- again -- to agree on how to reduce some
of the harshest drug-crime sentencing laws in the nation. But several
other state legislatures passed laws with varying degrees of
flexibility and creativity, the Vera Institute found.

A new law in Indiana, for example, gives judges discretion to suspend
sentences of offenders if their drug or alcohol abuse, or mental
illness, played a role in their crime. In Missouri, a new law broadens
the number of nonviolent offenders who are eligible to serve their
remaining prison terms through home detention.

North Carolina created a law this year that allows the Department of
Correction to transfer convicts who are not United States citizens to
prisons in their home countries, saving about $3.5 million a year.

While saving money has been a driving force behind the wave of new
state laws, experts said, falling crime rates in most states have made
them politically feasible.

Last year, the nation's violent crime rate reached its lowest level --
23 victims people per 1,000 people age 12 or older -- since 1973, when
the federal Bureau of Justice Statistics began recording it. During
the same period, property crimes have dropped by 70 percent, to 159
crimes per 1,000 households, another record low.

"Politicians are saying, `I'm not going to lose anything,' " said Bob
Gangi, executive director of the Correction Association of New York,
referring to the new laws reducing criminal sentences. "It's not going
to win me votes, like positions on abortion or education would, but
it's not going to lose me votes."

There has been no corresponding change of heart in the Bush
administration. At conferences and engagements across the country, Mr.
Ashcroft has made it clear, indeed, that tailoring prison sentences,
regardless of the circumstances or criminal involved, will not be tolerated.

"I believe that when a predator commits a crime, he should do the
time," Mr. Ashcroft often says in his prepared speeches.

To make sure federal jurists get the point, Mr. Ashcroft ordered
prosecutors last month to begin notifying his office whenever a judge
hands down a sentence more lenient than the range set by federal
sentencing guidelines.

Another obvious difference in the disparity among federal and state
sentencing guidelines is the cost. Most states are required by law to
balance their annual budgets; the federal government is not. Unlike
prison budgets in most large states, the expenditure for the federal
Bureau of Prisons amounts to a microscopic fraction of overall spending.

"As long as Ashcroft doesn't feel particularly financially
constrained," said Mr. Jacobson, the professor at John Jay College,
"then he's not going to feel a lot of pressure and the politics of
this will still work at the federal level."