AN AMERICAN GULAG IN THE MAKING

"We have created an American gulag," declared former drug czar Barry
McCaffrey in 1996, describing the widespread and accelerating incarceration
of drug offenders.

Unfortunately, the American drug gulag has grown even larger since then.
And it is a phenomenon that has a human and financial cost.

In 1990, the entire federal prison system held a total of 56,989 inmates
for all offenses combined. By the time McCaffrey made his observation in
'96, there were 55,000 drug offenders in federal prisons. In 2000, federal
prisons held almost 130,000 inmates, of which 75,000 were drug offenders.

Who are we sending to the drug gulag and why? The answer may be surprising.

Many federal prisoners are first-time offenders. According to the federal
Bureau of Justice Statistics, 46 percent of drug offenders convicted in
federal courts in 1999 were first-time offenders. Of these, 91 percent were
sentenced to 49.2 months on average.

There is also a strong and growing federal focus on marijuana, even though
more-dangerous drugs are becoming cheaper to attain. In 1997, nearly 19
percent of federal drug offenders were serving time for marijuana. In 1999,
30 percent of the drug offenders convicted in federal courts were marijuana
offenders. In 1999, more than 90 percent of such offenders were sentenced
to an average of 33.8 months in federal prison.

For their part, the individual states hold more than a quarter of a million
drug offenders in prisons, 21 percent of the total 1,206,400 state prison
inmates. Frequently these are low-level, minor offenders: possession
offenders account for more than 27 percent of all drug offenders in state
prisons; more than 10 percent of all drug offenders in state prisons were
convicted of marijuana offenses.

The state of Florida, with the third-largest state prison system in the
United States according to BJS, had an inmate population of 72,406 at the
end of 2001. Nearly 18 percent of them are drug offenders.

The road to the American drug gulag begins with an arrest. In 2000, the FBI
reports there were 1,579,566 arrests for drug offenses nationally -- the
third year in a row of 1.5 million-plus drug arrests, up from just over 1
million in 1990. Marijuana arrests numbered 734,497 in 2000, of which
646,042 were simple possession. These statistics don't include the quickie
civil citations that some states allow. These are real arrests, each of
which takes up at least a few hours of a police officer's, or a DEA
agent's, time.

To compare: Nationally, in 2000, there were 625,132 arrests for all violent
crimes, and 1,620,928 arrests for all property crimes. The FBI notes that
annually, less than half of all violent crimes are "cleared" -- that is, an
offender is arrested and charged with the crime, though not necessarily
convicted -- and only 16.7 percent of property crimes.

Meanwhile, heroin and cocaine are available nationwide at lower prices and
higher purity than ever before. Abuse indicators such as overdose deaths
and emergency-room episodes are also at record highs.

The farther along the road to the drug gulag we go, the more racist the
system appears. The Household Survey reports that 77 percent of drug users
are white, 12 percent are black, and 10 percent are Hispanic. Further,
research from the National Institute of Justice indicates that most drug
users usually buy their drugs from people of their own ethnicity/race.

And there are almost equal numbers of white and African-American felony
drug defendants in state courts. Yet, on conviction, African-American drug
defendants are much more likely than whites to be sentenced to incarceration.

As a result, within the drug gulag the racial divide is stark: African-
Americans comprise 57.8 percent of drug offenders in state prisons and 40
percent of federal drug prisoners; whites, 23 percent of state drug
prisoners and 24 percent of federal drug prisoners; and Hispanics, 17.2
percent of state drug prisoners and 33 percent of federal drug prisoners.

In Florida's prison system, 24 percent of drug offenders are white, 73.4
percent are black. Unfortunately, Florida doesn't provide an estimate of
the number of Hispanic offenders -- something the feds and most states
started doing only relatively recently.

How did the drug gulag grow so quickly? Much of the growth is the result of
mandatory minimum sentencing laws. These laws give judges no leeway in
sentencing, and are simply based on the type and quantity of drugs involved
in the offense.

Recoiling from the fact that their hands are tied, some senior judges on
the federal bench now refuse to accept drug cases to protest these rules.
There is growing resistance to these laws among the public as well, but
until they change, the gulag continues to grow.

Beyond the human cost, this American drug gulag is expensive to operate.
The federal Bureau of Prisons is currently spending $3 billion a year just
to incarcerate drug offenders. Even so, prison construction lags terribly
behind demand: BJS reports that the federal prison system is 31 percent
over its maximum capacity. Federal authorities have to build one new
medium-size prison per month just to keep a bad situation from getting
worse as the numbers, and the cost, continue to grow.

Financing of the drug gulag also perpetuates its growth, because states are
forced to make treacherous budget choices. In many states, spending on
prisons far outstrips spending on education. According to a new report by
the Justice Policy Institute, "Cellblocks or Classrooms?" from 1985 to 2000
state corrections spending grew six times faster than state spending on
higher education -- state spending on corrections grew 166 percent during
that period versus a 24 percent increase for the states' overall budgets.

Florida's performance here was better than the national average:
Corrections spending in Florida grew at only 21/2 times the rate of higher
education spending between 1985 and 2000. In 2000, the state of Florida
spent $3.022 billion from its general fund on higher education, and $1.554
billion on corrections. That year, nearly as many African- American men
were in the state prison system as were enrolled in Florida's colleges and
universities (37,000 vs. 37,437).

Concerns like these are starting to slow the growth of the American gulag,
at least at the state level. A number of states are experimenting with
alternatives to incarceration. In 1989, Miami-Dade County started the first
drug court in the nation; today, there are nearly 800 drug courts around
the country. Rules vary from state to state, as do success rates, but
typically they provide supervised treatment for low-level, nonviolent
offenders who would otherwise have been sent to jail or prison.

In 2000, voters in California approved a broad treatment-alternative
program, modeled after another successful program in Arizona, which was
also enacted by a ballot measure. California is now reportedly reducing the
rate at which drug offenders are being incarcerated. A similar
treatment-alternative proposal is on the ballot in Ohio. Another proposal
in Florida was held up by the state Supreme Court until after the deadline
for 2002; it may appear on the 2004 ballot.

Treatment-alternative plans are beneficial to those who qualify, but the
treatment needs of those inside the drug gulag go largely unmet. Only 14
percent of drug- and alcohol-involved offenders at the state level enter
treatment after admission to prison, and 31 percent report participation in
some other substance-abuse program. Only 12 percent of federal offenders
receive treatment for substance abuse during their current sentence, while
26 percent participate in other substance-abuse programs while in prison.

Treatment in prisons is important because most inmates eventually leave the
gulag. Our failure to provide treatment and other rehabilitation programs
contributes greatly to high recidivism rates for former drug prisoners: 66
percent of drug offenders released from state prison are re-arrested within
three years of release -- 41 percent on another drug charge. Again, the
gulag fuels its own growth.

What can be done?

Repealing mandatory minimum sentencing laws and providing treatment for
inmates with alcohol and other drug dependence is vital to slowing the
growth of the American drug gulag. But drug users shouldn't need to get
arrested in order to get treatment.

The more basic question is whether the criminal-justice system is the
appropriate mechanism to deal with adult drug use, especially marijuana
use. The drug war has raged for decades, yet kids today report that
marijuana is easier to obtain than beer or cigarettes.

Perhaps it's time that we consider whether regulating that market, rather
than prohibiting it, would provide greater protection for families and society.