Against Mandatory Minimums.

Drug sentencing run amok.

Mr. DiIulio is a senior fellow at the Manhattan Institute and was recently appointed Fox Leadership Professor of Politics, Religion, and Civil Society at the University of Pennsylvania.

There is a conservative crime-control case to be made for repealing mandatory- minimum drug laws now. That's a conservative crime-control case, as in a case for promoting public safety, respecting community mores, and reinstating the traditional sentencing prerogatives of criminal-court judges. This is not a libertarian drug-legalization case, as in, "The inherently unethical and hugely expensive Washington-led War on Drugs has failed." Nor is it a liberal criminal- liberation case: "Most drug offenders behind bars, like most prisoners generally, are helpless, hapless, harmless victims of poverty and racism." No, it is a conservative case, and I will tell you how I, one of the few academic analysts with a kind word for imprisonment, have come to embrace it.

Where were you on October 3, 1995, the day the O.J. verdict came in? I was in Albany, speaking before law-enforcement officials at a governor's forum. I concluded my address by arguing that New York, which in the 1970s led the nation in passing stern mandatory-minimum drug laws, should lead it again by repealing them.

New York, like most states, has a complex criminal code that includes several dozen specific laws prohibiting the possession or sale of various "dangerous drugs" and "controlled substances," and prescribing criminal penalties, including mandatory prison terms of a certain number of years. Most of these laws (including a few that germinated as "public health" laws) were enacted between 1973 and 1986. Over the years, many of them have been repealed or revised.

New York's two most resilient repositories of mandatory anti-drug laws are the Rockefeller Drug Law (RDL) and the Second Felony Offender Law (SFOL). Together, the two have earned New York its reputation as the state with the "toughest drug laws in the country."

Signed with gusto by Gov. Nelson Rockefeller in 1973, the RDL mandated terms of 15 years to life for numerous drug-trafficking crimes based largely on the weight of the drug sold. As criminal-justice historian Lawrence M. Friedman has noted, the RDL was controversial from the first, and "the legislature, in essence, got rid of it in 1979." But both the letter and the "essence" of the RDL's mandatory-sentencing regime survived in parts of the state's criminal code, including the SFOL.

A RISING TIDE 

Also enacted in 1973, the SFOL requires with some exceptions a mandatory state- prison term for persons convicted of a second felony offense. In 1993, 67 percent of those committed to prison for drug offenses in New York were sentenced under the SFOL. In their first 20 years, the SFOL, the RDL, and other anti-drug laws combined for a steep and steady rise in the portion of incoming prisoners whose last convicted crime was a drug felony. In 1980, a drug crime was the most serious conviction offense of 11 percent of the state's prisoners (886 people). By 1993, that fraction had risen to 44 percent (10,939 people).

On the day of the O.J. verdict, I strongly suspected something of which, owing to research I have recently completed with Harvard economist Anne Morrison Piehl and University of New Mexico sociologist Bert Useem, I now feel certain: Since the mid 1990s, a large fraction of New York's incoming prison population has consisted of offenders whose only past felony crimes, recorded and undetected, were genuinely low-level, nonviolent drug crimes. Many of these "drug-only offenders," as we term them, are themselves drug abusers or addicts who have never been in a well-structured, no-nonsense, community-anchored substance-abuse program.

New York is not alone. My first suspicions about drug-only prisoners were reported in a 1995 article co-authored with Piehl and published in the Brookings Review. As advisor to New Jersey's Sentencing Policy Commission in 1993 and '94, I and other Princeton researchers were able to survey the state's inmates, study its criminal and corrections data, and conduct interviews with key lawmakers, law-enforcement officials, judges, probation officers, and others. Based on that research, Piehl and I concluded that perhaps 15 percent or more of the state's incoming prisoners were drug-only offenders.

But our New Jersey study, like one we had previously done in Wisconsin, was not really designed to get cleanly at our questions about the incarceration of drug- only offenders. So with Useem we modified our design accordingly. During the first half of 1997, we surveyed some 1,500 incoming prisoners in three states- New York, New Mexico, and Arizona-and undertook other necessary research. (A report summarizing the main findings of our study will be released this month by the Manhattan Institute's Center for Civic Innovation.)

Even by our most conservative estimates, we find that all three states are imprisoning large numbers of drug-only offenders: 28 percent of incoming male prisoners in New York, 15 percent in New Mexico, 18 percent in Arizona; and 49 percent of incoming female prisoners in New York, 14 percent in New Mexico, 20 percent in Arizona.

In 1997, 47 percent of New York's incoming prisoners (9,809 people) and 33 percent of all prisoners on any given day (22,670 people) were persons whose last and most serious conviction offense was a drug crime. If our aforementioned lower-bound estimates are in the ballpark, then at least half of the incoming drug offenders in the New York state-prison system are drug-only offenders.

Most of the relevant research literature-in addition to street lore coast to coast-indicates that when one drug-only offender is incarcerated, another one assumes his sales and effectively takes his place. Our three-state survey found that, at the time of the conviction offense, under a third of the prisoners now serving mandatory sentences for drugs either knew that the penalty was in effect or expected to go to jail if caught. So much for deterrence. Meanwhile, ever more incarcerated drug-only offenders are drug-dependent persons. In 1996, over half of all local-jail inmates reported having used drugs in the month before their offense, up from 44 percent in 1989. Likewise, in 1997, 57 percent of state prisoners reported having used drugs in the month before their offense, up from 50 percent in 1991. For federal prisoners, the fraction rose from 32 percent in 1991 to 45 percent in 1997. With mandatory minimums, there is no real suppression of the drug trade, only episodic substance-abuse treatment of incarcerated drug-only offenders, and hence only the most tenuous crime-control rationale for imposing prison terms-mandatory or otherwise-on any of them.

Back in Albany, I was being neither brave nor ungracious to Gov. George E. Pataki. For one thing, he was not present. For another, he was not then unsympathetic to the view that, as he himself stated publicly during his first days in office, "Rockefeller drug laws have filled New York's prisons and have not increased public safety."

Each subsequent December, Pataki has commuted the sentences of several drug-only offenders serving long mandatory prison terms. In December 1997, for example, he granted clemency to three such offenders, including one Angela Thompson, convicted at age 17 of trying to sell cocaine to an undercover cop at the behest of an uncle who was her legal guardian. Both she and her uncle got 15 years. She was granted gubernatorial grace and released after "only" eight years.

Earlier this year, however, Pataki appeared to back way off a move in the legislature to radically reform or repeal the RDL. The political speculation has him fearing such a move at a moment when he might emerge as a viable law-and- order candidate for vice president, a fear heightened by his rocky relations with New York City mayor Rudolph Giuliani, himself a crime-busting GOP veep prospect and a vocal take-all-prisoners advocate of abolishing parole.

Here's hoping that Pataki shocks the cynics, captivates the press, and puts his tough-but-enlightened-statesmanship stamp on RDL repeal. His conservative crime- control case for repeal should acknowledge that the RDL and like drug laws have always netted some drug-only fish and fried them with mandatory prison terms. As one veteran prosecutor said to me following my Albany speech, early on these laws functioned "like Velcro" for drug kingpins and other "really bad asses," mainly plea-bargain-gorged streetwise felons who had not been adequately prosecuted or sentenced for previous non-drug crimes. Over the last several years, however, the mandatory drug laws, conceded another big-city prosecutor, have begun to function "like hell," with ever more drug-only offenders "going inside," while equally bad offenders (or worse ones) get low- or no-supervision probation or, as some now say, "O.J.," meaning they simply fail to appear in court on drug charges, plea-bargain their way home, or otherwise get off scot- free.

THE new PRISON POPULATION

If you doubt such professional wisdom, just look at who's now on probation in most states. A report released by the U.S. Bureau of Justice Statistics in 1997 indicated that, in 1994, 29 percent of persons whose most serious conviction offense was a drug-trafficking felony got probation instead of incarceration; so did 31 percent of those whose most serious conviction offense was a weapons- crime felony. Weapons offenders were thus slightly more likely than drug merchants to escape incarceration and get probation. In Massachusetts and several other states, about half of probationers are under supervision for a violent crime, while half of those in prison for drug-law violations have no official record of violence. From a crime-control perspective, forcing drug-only offenders behind bars while violent offenders beat feet to the streets is just plain batty.

To continue to imprison drug-only offenders mandatorily is to hamstring further a justice system that controls crime in a daily war of inches, not miles, and that has among its main beneficiaries low-income urban dwellers. With massive private spending on personal security and massive suburbanization, most Americans do not rely heavily on government to keep themselves, their loved ones, and their possessions out of street crime's way. Through courts, cops, and corrections agencies, government combats but never comes close to conquering crime, least of all the violent crime that disproportionately afflicts inner- city minority households. Even on its most aggressive day, the justice system works like a sorting machine, incarcerating only a small fraction even of known, adjudicated, violent criminals.

In 1994, Americans experienced some 4.2 million murders, rapes, robberies, and aggravated assaults. That same year, states convicted about 146,000 persons for these violent crimes, but sent only about 95,000 of them to prison. Between 1980 and 1994, the nation's prison population increased by 213 percent; but the probation population increased by exactly the same percentage. By 1996, there were a million people in prison, and 3.3 million on probation.

From 1960 to 1980, the nation underwent a bout of prison bulimia during which the ratio of prison admissions to arrests for serious crimes fell. From 1980 to the present, however, the nation has undergone a steady prison expansion targeted mainly on violent felons. Thus, between 1990 and 1997, violent offenders accounted for 50 percent of the increase in the nation's prison population, and all types of drug offenders for 25 percent. Truth-in-sentencing laws pushed the average time served by released prisoners convicted of murder, rape, robbery, or aggravated assault from 43 months in 1993 to 49 months in 1997. For all types of prisoners, the average time served increased from 22 months in 1990 to 25 months in 1996. The increase was neither huge nor particularly punitive, but it averted millions of street crimes and thousands of mortal wounds.

But where drug-only offenders are concerned, in the late 1990s we have gone from prison bulimia to a prison binge that is putting drug-only offenders behind bars with seemingly petty but dangerous "drug offenders" and repeat violent felons.

In a 1996 study I conducted with George Mitchell of the Wisconsin Policy Research Institute, we reconstructed almost the entire adult and juvenile criminal histories of a sample of prisoners from Milwaukee County. Take the case of the prisoner serving two years for "possession WITD" (with intent to distribute) a tenth of a gram of cocaine. He had five prior arrests, three prior incarcerations, and was a habitual parole and probation violator. He began building his diversified criminal portfolio with juvenile burglaries. He leavened it as an adult with occasional armed robberies. His pre-sentence investigation report stated that he "seems to rationalize his behavior and blames his drug usage as being the reason why he has engaged in new criminal behavior." The agent who wrote the report would have none of it, charging this "drug offender" with "a blatant disregard of the community."

Few citizens would shed a tear or withhold a dollar if mandatory-minimum drug laws ensured that such a career criminal could not con yet another judge or probation officer into brokering his release in the name of rehabilitation or community-based treatment.

But look at the flip side. Look, for example, at the estimated half of all "drug offenders" entering New York prisons who are much closer to being drug-only offenders than they are to being violent and chronic felons in petty drug possessor's clothing.

You be the judge. A career drug addict comes before you on his second conviction for a drug sale. You read the pre-sentence investigation report. You learn that in Brooklyn and other parts of town, district attorneys and others have run remarkably effective "coerced abstinence" community-based programs. You know that these programs are not cheap, but generally do not cost as much, all told, as a year of incarceration. You entertain the probation officer's recommendation for a non-prison term featuring mandatory drug treatment.

On second thought, don't be the judge, because even real judges can't be. Don't bother imagining what the pre-sentence investigation report reveals about the offender, because a real report doesn't get consulted for purposes of sentencing anyway. And don't try to require community-supervised drug treatment as a condition of probation, because the law mandates that this pathetic two-time drug-only loser do 15 years to life in prison.

How did this happen? One last "don't": Don't join the critics in carping about how mandatory-minimum laws swallowed judicial discretion in favor of sentencing penalties set by the legislature, at least not until you suffer my little interpretive history of the rise and demise of their opposite numbers, the so- called indeterminate sentencing regimes.

After World War II, the broad sentencing discretion traditionally afforded to judges was progressively harnessed to psychobabble theories of criminal rehabilitation. By the 1960s, many criminal-court judges in New York and other states did the bidding of law professors and policy elites who were openly contemptuous of popular crime-control demands. Take the Model Criminal Code. Adopted by the American Law Institute in 1962, it explicitly rejected punishment as a purpose of the justice system. Henceforth adult criminals were to be "disposed" or "treated," not "punished." (The impact on the juvenile justice system was even worse, but that's another story.)

As indeterminate sentencing incarnate, right-thinking judges with virtually unlimited discretion were not simply to weigh a convicted criminal's mens rea as per the Anglo-American legal tradition. They were also to divine whether the criminal's willful, reckless, or malicious conduct was his fault or society's. When in doubt, they could split the difference and the sentence, then proceed to tailor from the bench whatever rehabilitation program and however many years-one to five, two to fifteen, whatever-they imagined the criminal's condition dictated. So between breakfast and lunch, courts all across the country were imposing radically different sentences on sane persons who, to the uninitiated eye, had committed virtually identical crimes under remarkably kindred life circumstances. The only uniform results were uniformly high prisoner recidivism rates and uniform growth in the discretionary power of parole boards.

By the late 1960s, some critics of indeterminate sentencing had come close to confessing that the system had defiled judicial discretion and become what they loathed: namely, not an applied legal science of rehabilitation, but a cesspool of arbitrary and disparate punishment. They consoled themselves that, if such was the price for rolling back Puritanical or otherwise intellectually retrograde views of crime and punishment, it was a price worth paying. They-or, rather, average Americans, especially those in the big cities-paid this price in the coin of unprecedented rates of criminal victimization.

In the end, the experts and their judges refused to concede that, while the justice system has a clear ethical and prudential stake in reforming criminals and returning them to their local communities as decent, law-abiding citizens, its two primary purposes lie elsewhere: first, to promote public safety by cost- effectively detecting, convicting, and, as necessary, restraining a small but significant fraction of persons who have criminally violated or threatened life, liberty, or property; and second, to exact in the bargain not only a significant measure of criminal deterrence, but a just measure of criminal punishment for the transgression of the legal rights of others, with such punishment to be set and executed through the sovereign moral agency of the people's courts, and administered by appointed representatives of the offended commonwealth.

As political scientist William Mayer has documented, in the 1970s an increasingly frustrated, frightened, and conservative-minded public demanded that its elected leaders regain control of crime control. As Lawrence Friedman notes, their favorite tools included new laws mandating punishment, often in the form of imprisonment: "Use a gun, go to prison"; "sell a drug, go to jail"; and so on.

It was a net good while it lasted, but the pendulum has now swung too far away from traditional judicial discretion, not only in the states but most assuredly at the federal level as well, and especially where drug crimes are concerned. In their new book on sentencing guidelines in the federal courts, former federal prosecutor Kate Stith and federal judge Jose A. Cabranes detail how this "fear of judging" has packed federal prisons-largely, I would surmise, with drug-only offenders.

There is also a socially divisive racial rub to the RDL and all its mandatory- minimum kin. Over the years, I have written in defense of the proposition that there is little or no evidence of systematic racial disparities in post-1976 criminal sentencing. In its 1998 report, even the president's Initiative on Race conceded that "all or most of the differences in the likelihood of conviction and imprisonment can be explained" by factors other than racial discrimination, "such as severity of crime or prior record of the offender."

Still, in 1997, about 95 percent of all persons in New York prisons whose last and most serious conviction was for a drug offense were black or Hispanic. Most people in the communities from which these prisoners tend to come strongly oppose drug legalization and want drug dealers routed from street corners. By the same token, most of them strongly favor drug treatment and do not support the long-term imprisonment of their drug-only-offending neighbors. Their preferences ought to register in new public anti-drug laws that mandate community-supervised sentences and treatment.

Will repeal happen? Legalization proponents, like the editors of this magazine (see "The War on Drugs Is Lost," February 12, 1996), do as much to burden as to brighten the prospects for repeal. Despite registering many sensible caveats and qualifications (for example, NR editor-at-large William F. Buckley Jr. favors stiff sentences for sales to minors and admits uncertainty about how far we really can and should go with legalization), they too often characterize all persons incarcerated for drug crimes as casualties of the War on Drugs. Likewise, they generally fail to acknowledge that, whether at an acceptable human and financial cost or not (therein dwelleth the real debate), law enforcement definitely adds to the potential risks, and limits the potential rewards, of illicit narcotics consumption and sales.

GET REAL

Legalizers and their favorite free-market economists are entitled an occasional vacation from the rudimentary implications of price theory. They can be forgiven, too, for a lack of firsthand familiarity with open-air drug markets, which steal public spaces and disrupt daily life. They can even be suffered as they inveigh against the billions of dollars we spend each year on the enforcement part of the War on Drugs, though we spend barely 3 cents of every government dollar on all federal, state, and local justice-system functions combined. But gentlemen, please, get real.

My dear friend Ethan Nadelmann, director of New York's Lindesmith Center and the nation's foremost advocate of harm-reduction policies, once posed with admirable precision what to me remains the key unanswered drug-war query: What is the size and composition of the population for whom continued enforcement of the anti- drug laws represents the principal bulwark between an abstemious relationship with drugs and a self- or other-destructive relationship with them? Stated differently and with a drug warrior's twist, How many more persons would use or abuse drugs were they legal, and which socioeconomic and demographic strata of our society would be most adversely affected? Nobody-not Nadelmann, not me, not anyone-knows the answer.

The conservative crime-control case for repealing mandatory-minimum drug laws neither turns on such knowledge nor need await the dawn of legalization. I repeat here what James Q. Wilson and I wrote in The New Republic a decade ago this July: "Attempting to suppress drugs is very costly. Some people therefore conclude that we must eliminate all the costs of law enforcement by repealing the laws that are being enforced. The result (they suppose) would be less crime, fewer and weaker gangs, and an opportunity to address the public-health problems in a straightforward manner. But legalizing drugs would also entail costs. Those costs are hard to measure, in part because they are moral and in part because we have so little experience with legalized drugs."

Notice, violent crime is down 21 percent since 1993, and we are coping rather well by most accounts with AIDS and other public-health problems that intersect with the drug trade. We have not legalized drugs. And we need not repeal all drug laws-just the ones that are clearly missing every desirable mark.

Fittingly, the most serious case against repealing mandatory-minimum drug laws that I have encountered thus far has come with feeling from fellow crime-control conservatives, including law-enforcement folks. They would have me fret that decarcerating drug-only offenders would undermine so-called quality-of-life or "broken windows" policing in New York City and elsewhere. I have even been challenged by several whom I respect (including my own retired deputy sheriff father!) to imagine what message the criminal classes of the big cities would receive if the cops stopped making drug-law violators, even minor ones, an enforcement priority, and the prisons stopped warehousing them.

I accept the challenge. In 1998, the New York Police Department had nearly 31,000 drug-related felony warrants on file, unserved. Thirty-two percent of all persons arrested by the NYPD on drug charges simply fail to appear in court. Philadelphia has some 49,000 fugitives from justice, many of them wanted for drug crimes. Lots of credible research suggests that effectively managing and treating such offenders in the community could cut their recidivism rates, avert tens of thousands of crimes, and reduce the need for prison space.

Now: Repeal mandatory-minimum drug laws in New York and elsewhere. Find the fugitives. Serve the unserved warrants. Incarcerate the really bad guys. Mandate drug treatment for the drug-only addicts and abusers. The message on the street, I suspect, would be that life may sometimes feel like a lottery but the law is no joke-and no fool.