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Terms of Imprisonment

More than half the states have mandatory minimum sentences for drug offenders. Some of them are starting to rethink and revise their laws.

Few long-time New Yorkers could have imagined that John Dunne, a lifelong Republican, would be leading the charge against the state's harsh mandatory minimum sentences for drug offenses. After all, Dunne helped create the draconian drug laws in the first place. That was back in the early 1970s, when he was serving as a state senator.

At the time, the state was awash with heroin. Methadone centers set up to combat heroin addiction were not lessening the problem much, and the costs of drug treatment were climbing. Out of a sense of fear and frustration, the state decided to attack the problem from another direction. With little opposition, the New York legislature set severe mandatory penalties for people caught possessing or selling illicit drugs. "The goal was to drive dealers from the streets and discourage people from getting into the business," Dunne says.

But with more than a quarter-century to judge the results of his handiwork, Dunne is convinced the laws have missed their target. Plenty of high-level drug dealers are still operating, but thousands of addicts and low-level drug couriers have been roped in and are swelling the prison ranks. Dunne is now a lawyer who heads the Campaign for Effective Criminal Justice. The group's goal is to reform the misfiring sentencing laws. "They have not stemmed the drug trade," he says. "The only thing they've done is to fill the prisons."

While Dunne's conversion may seem surprising, it is by no means unique. Equally unlikely activists can be found in other states where stiff mandatory minimums for drug offenses have found a toehold during the past two decades. Former Republican Governor William G. Milliken, who favored and signed into law Michigan's mandatory minimums in 1978, now publicly calls them "a terrible mistake." Even the chief justice of the land, William H. Rehnquist, has cited mandatory minimums as "a good example of the law of unintended consequences."

But despite the growing number of conservatives and law-and-order types joining the more liberal factions in calling for reform, change has not been swift in coming. Indeed, several states are now in the process of setting up new mandatory minimums, even as other states consider undoing theirs.

Currently, 36 states have instituted mandatory minimum sentences for drug convictions. New York's laws were the earliest and harshest. They were adopted in 1973 at the behest of then-Governor Nelson A. Rockefeller, whose views on criminal punishment had hardened dramatically in the wake of the Attica prison riot in upstate New York in 1970. "It was such a landmark proposition," says Stephanie Batcheller, staff attorney for the New York Defenders Association, In 1974, his once-shaky conservative credentials largely repaired by the crime issue, Rockefeller was selected as Gerald R. Ford's vice president.

Under the tough laws he left behind, now known as the Rockefeller Drug Laws, someone with no prior record and no violent history, convicted of selling two ounces or possessing four ounces of a narcotic substance, goes to prison for a term of no less than 15 years to life. (Four ounces of cocaine equals about a four-month supply for an addict who uses it once a day.)

When the laws were first passed, 12,500 people were in the state prison system. Now, there are more than 71,000. About 22,300 of them are drug offenders, most of them in for possession, not sale. The state has been hit with a price tag of about $2 billion for new facilities and another $710 million a year to operate them.

Notwithstanding the enormous fiscal burden and increasing evidence that New York's laws have failed to stop drug trafficking or possession, Candace McCoy, associate professor of criminal justice at Rutgers University, says that the drug laws succeeded on one level: "They proved that politicians and the public could be rough and tough, and meant to be serious about stopping drugs."

Supporters of the laws say their success has gone beyond making a moral point. They take note of significant decreases in crime across the nation and argue that tough sentences had much to do with the drop. "Mandatory minimum sentences have not been the pariah some people made them out to be," says New York state Senator Dale Volker. "People are coming in and saying, `Reduce sentencing, get rid of the death penalty.' If we're not careful we'll start a new round of the mayhem."

Katherine Lapp, commissioner of the New York Department of Criminal Justice, agrees. "No one can say anything but tough law enforcement policies started the crime decline in New York City and other parts of the state," she says. "If we do not have a hammer over these guys' head, there's no way to get their attention."

The laws' critics, however, say the decrease in crime is attributable to a strong economy that is enabling more people to find work, as well as changing demographics that translate into fewer people in the age range that generally commits drug crimes. That, they add, is why crime is down all over, even in states without the same tough mandatory minimums found in New York and Michigan.

Wherever the truth lies, legislators clearly are reluctant to come out in favor of releasing drug convicts from prison: No one wants to get tagged with the label of being soft on crime. "Everyone's afraid to say we need to grant relief," says Batcheller. "It will come out as wanting to put drug dealers back on the street."

Of course, opponents of tough mandatory minimums don't argue that drug kingpins should be let off lightly. Rather, they call for sentences that match the crime and for taking the discretion away from prosecutors and police and putting it back into the hands of judges who could review the circumstances of each case and sentence accordingly. As things now stand, "prosecutors make all the decisions on who to charge and what to charge," says Monica Pratt, director of communications for Families Against Mandatory Minimums. "They call all of the shots. Their job is to put people away. The judge just looks at the book and gives a sentence."

The impetus behind instituting mandatory minimums years ago was the concern that judges were meting out light sentences for drug offenses and that there was a wide range of sentences for very similar crimes. But with rigid mandatory minimum laws, the balance has tipped too far the other way, critics say. "The laws are so draconian, so severe, they've warped the entire sentencing structure," says McCoy. "If you can get a life sentence with no possibility of parole for a drug offense, what do you get for murder? The whole proportionality is out of sync. If it's possible to get the same sentence for drugs as for killing a police officer, what would stop a dealer from shooting the arresting officer? I'm not saying the law causes it, but the law is supposed to be rational."

The change of heart on the part of conservatives is based on concerns about both the effectiveness and costs of mandatory minimums. If governments expected the laws to act as a deterrent, they don't, according to a study called "Right-Sizing Justice: A Cost-Benefit Analysis of Imprisonment in Three States" released by the Manhattan Institute. John DiIulio, one of its three authors, is an academic at the University of Pennsylvania. In 1994, his opinion piece strongly in favor of harsh mandatory minimums was published in the Wall Street Journal. He has since changed his mind.

The study showed that less than a third of those serving mandatory minimum drug sentences knew, before being arrested, about the potential consequences. It also found that increased imprisonment for drug offenses has not disrupted the illicit drug market. Sellers are replaced by other drug sellers. And a 1997 Rand Corp. study found that drug treatment is more than seven times more effective than mandatory minimum sentences in reducing the amount of cocaine used annually in this country, and it costs much less than incarceration. Not all drug laws need to be repealed, DiIulio wrote in a National Review article, "just the ones that are clearly missing every desirable mark."

In general, the dragnet is catching lots of dupes but not many kingpins, who often manage to get off by plea-bargaining. The result is that states are imprisoning teenagers, girlfriends of drug addicts or dealers, battered wives coerced into acting as drug couriers for their husbands, addicts who transported drugs for money but aren't the masterminds behind the drug trade, and other drug "mules" and gofers-- many of them women.

The Correctional Association of New York found that 95 percent of the women charged as drug couriers in that state had no previous criminal involvement. "Drug kingpins are rarely foolish or reckless enough to be caught carrying narcotics, whereas a teenage mother, employed as a courier by that same kingpin is more likely to be picked up on the street and charged with a serious felony for having a small amount of drugs in her possession," the association reports.

The worst laws are those that give severe mandatory sentences for a particular weight or amount of drugs, says Rutgers' McCoy. The culpability is based on the weight of the drugs in the person's possession when apprehended, rather than the role the person plays in the narcotics transaction. "It's a question of prosecutorial discretion," she says. "The prosecution can overlook an extra ounce. Now, who gets that break and why?"

When such power and discretion is put in the hands of prosecutors and law enforcement officers they can use the threat of life sentences to intimidate those arrested. "If you don't rat on a friend, the sentence gets harsher, " McCoy notes. "From a due-process standpoint, it's a disaster. The people who get rewarded are the low-level liars desperate to get a break. The schnooks at the bottom get stuck."

In both Michigan and New York, sanctions are determined by the amount of a drug in someone's possession. Michigan's "650 Lifer Law" was passed in 1978, mandating life without parole for possession with intent to deliver at least 650 grams of heroin or cocaine. That's about 1.4 pounds, a little bigger than a box of baking soda.

The lifer provision was added onto a massive public health bill. No hearings were held on it, nor was there any analysis of its economic or social impact, Milliken recalls. While the law was aimed at the large drug dealers, it became a "one strike and you're out" law that mostly falls on non-violent offenders with no prior prison record. "We can only be appalled at some of the injustices that have been perpetrated in the name of justice," he says.

One of the examples Milliken cites is that of JeDonna Young, a young black woman, who was among the first people to be arrested under the law. A 24-year-old mother at the time, Young was dating a man who asked her to give him a lift. He handed her a couple of shopping bags to put in the trunk. It turned out he was under surveillance by authorities and the bags contained heroin. She insisted she did not know that her new boyfriend was dealing drugs and he testified as much in court. Nevertheless, each was convicted to a life sentence without parole.

The U.S. Circuit Court of Appeals reviewed the case many years later and concluded that Young was an addict, not a kingpin. "In this case, we believe that the tiger trap may have sprung on a sick kitten," the court wrote. If Young had actually been a dealer and had been able to cooperate with authorities and trade information on others, she would have had an opportunity to reduce her sentence. Instead, she got the same prison sentence as rapists and murderers.

Around the same time, a non-violent drug dealer named Timothy Allen Dick, who is white, was caught at the Kalamazoo Airport with more than 650 grams of cocaine. He was able to bargain his sentence down because he had information to help authorities convict others. And fortunately for him, he was picked up in a county that allowed transfer to a federal jurisdiction. In the federal system, he was convicted and served two years in prison. After his release, he became a successful comedian and actor who goes by the name Tim Allen.

"I don't think anyone can argue rationally that we would be better off as a society if Tim Allen were serving a life sentence in the Michigan prison system," Milliken says. "It is time we acknowledge our mistake and correct it."

In 1998, Michigan took a stab at reform and granted some relief. Although discretion wasn't put back in the hands of judges--the ultimate goal of the reform activists--Michigan Governor John Engler did sign a law in October that slightly eased the most severe penalties under the mandatory minimums. Those convicted of drug crimes can now be paroled after serving 15 to 20 years, depending on whether or not they are repeat offenders--and the law is retroactive. JeDonna Young was the first beneficiary. After serving almost 21 years, she was finally released in January 1999.

The change almost didn't make it. The legislature was working on a major judicial reform package that included work on mandatory minimum sentencing guidelines, but reform of the 650 Lifer Law was dropped because it was such a "political hot potato," says then-Representative Barbara Dobb. Lawmakers felt it would hold up other reforms.

But Dobb helped push the provision back into the package later. "The law was on the books in Michigan for 20 years and it wasn't working," she says. "There were people sitting in jail with lifetime sentences with no way out. The punishment in no way matched the crime they were in for," she says.

"We don't want to minimize the consequences of the effect of drugs or possessing drugs with the intent to sell," Dobb adds. "But the intent of the law was to put major kingpins in jail. I don't know if we have one kingpin in jail in Michigan right now. But we have lots of people on the periphery in jail and Michigan taxpayers are footing the bill."

Laura Sager, executive director of Families Against Mandatory Minimums, believes the revision was a monumental move for the state. "It was an admission on the part of both parties that drug laws had gone too far, that they hadn't worked as intended," she says. "It was the first time both parties took a look at the draconian sentencing scheme, reassessed what happened and took a step, and in an election year. It was considered an incredible thing." It was also considered just a first step, say activists who still consider the law too harsh.

In New York, reform of the Rockefeller Laws is caught up in political gamesmanship. Although in 1995 Governor George E. Pataki announced the need for some reforms, he did not introduce any legislation until last year. He proposed closing loopholes that were allowing drug kingpins to avoid lengthy sentences, and he proposed allowing for appeals that could reduce some long sentences for possession. But he has tied his support for easing prison time to a provision for eliminating parole, one of his main criminal-justice initiatives. Democratic legislators would not agree to that last year and appear unlikely to do so in this session, either.

A handful of other states, including Arizona, Oklahoma and Utah, have tinkered with reforms. Altering the rigid laws is proving very difficult, however. Dunne says that when he speaks with political leaders, they acknowledge that changes need to be made, but no one wants to step up and take a leadership role. So even though a backlash is clearly brewing, "the pendulum has reached the point of entropy and it's stuck there," Batcheller notes. "It's up as far as it can go, and it will be awhile before it comes down."

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