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When drug laws are too harsh to work

GOV. MICHAEL DUKAKIS recently signed a bill that would impose tougher sentences on drug dealers. The new law might help Mr. Dukakis defend himself against charges by Vice-President George Bush that he is ``soft'' on crime, but don't expect more drug dealers to go to jail. Past experience indicates that mandatory minimum sentences for drug dealers actually reduce the threat of punishment. Here's why. In 1973, New York lawmakers decided to get tough with heroin use. At the urging of then-Gov. Nelson Rockefeller, the Legislature passed a law that ultimately became known as the ``nation's toughest drug law.'' It contained three main provisions. First, long mandatory prison terms. Second, severe limits on plea bargaining. And third, life imprisonment for repeat offenders. In short, if a person was caught with one ounce of heroin he was subject to a minimum sentence of 15 years in prison; and for repeat offenders - life imprisonment.

When the law took effect Sept. 1, 1973, there was apprehension on the streets - with some promising results. A few addicts even sought treatment. A dramatic decrease in heroin use and drug-related crime followed (what criminologists call ``the announcement effect'').

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But within a few weeks things were back to normal. Four years later a federal government study concluded that heroin use in New York City was as widespread in 1976 as it was in 1973; that serious property crime - the kind associated with heroin use - had actually increased; and that the law, even with its threat of life imprisonment, had failed to deter repeat offenders.

What happened? Why did this tough law have so little effect? Its premise was that severe mandatory sentences would deter illegal drug use and traffic. Although this premise may be true in principle, it is nearly impossible to put into practice. For tough penalties to deter, they must be strictly enforced. But no one has found an effective way to enforce drug laws, at least not for more than a few months.

Indeed, harsh mandatory sentences have proved to be the least effective deterrent, because you can punish only the offenders you arrest, indict, and convict. The New York drug law failed because it did not increase the extremely low odds of being arrested; because it reduced the percentage of drug arrests that led to indictments (from 39 to 25 percent); and because it reduced the percentage of indictments that led to convictions (from 86 to 80 percent). In 1972 the proportion of drug arrests leading to conviction was 33.5 percent; in 1976 it had fallen to a mere 20 percent. The rate of imprisonment for those convicted rose (from 33 percent to 55 percent), but apparently not enough to offset the reduction in the likelihood of arrest, indictment, or conviction.

Countless studies have shown that higher penalties tend to produce fewer arrests, fewer indictments, longer trials (up to 15 times as long), and fewer convictions. In short, when lawmakers raise the stakes for drug defendants and defense attorneys, they make it difficult for prosecutors to expedite cases. Defendants faced with harsh sentences and unable to plea-bargain start to demand jury trials. And jury trials dramatically inhibit the number of cases that can be prosecuted. As a result, fewer people go to prison - an ironic but entirely predictable reduction in the actual threat of punishment.

Criminologists have long known that the certainty of punishment, not the severity of punishment, is important in reducing crime. With 5,000 Americans using cocaine for the first time each day, there is not much the police or the courts can do to increase the certainty of punishment. The key lesson to be learned from the New York experience is that little can be gained from passing a tougher drug law, especially if the criminal-justice system does not have the resources to back it up. New York State added 49 new judges, 31 in New York City, and still its courts were overwhelmed. The current Massachusetts law contains no such provision.

Cracking down on drugs may be good presidential politics, but it is not an effective strategy to reduce drug abuse. The awful truth is that there is no law enforcement solution to the drug problem. Until our politicians understand this, they cannot even begin to search for real solutions.

Richard Moran is professor of sociology at Mount Holyoke College in South Hadley, Mass.

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