Long Drug Terms: Ineffective, Unjust

WE will soon have a new drug czar, but the administration apparently plans no change in policy. Unfortunately, President Bush's continued emphasis on enforcement will not stem drug abuse. Our nation's prisons and jails are already overflowing with drug offenders. Yet the desire to appear "tough" on drugs is overwhelming. During the 1990 election campaign, Maryland Attorney General J. Joseph Curran allowed that decriminalization "is something at least worth thinking about down the road," but had to back away under sharp attack by his Republican opponent. Some congressmen and state attorney generals privately support drug legalization, but publicly advocate tougher laws. And mandatory jail time has become a national favorite.

Congress and state legislatures have begun making long sentences automatic for drug convictions. Under federal statutes passed in 1986 and 1988, assisting in the distribution of 100 kilograms of pot, 500 grams of cocaine, 100 grams of heroin, or five grams of crack (roughly a tenth of a teaspoon) earns five years of prison without possibility of parole; handling a gram of pot, five kilograms of cocaine, one kilogram of heroin, or 50 grams of crack (about a teaspoon worth) gets 10 years.

In 1988, Congress voted to double the penalty if the sale was made within 100 feet of a youth facility. In 1989, Congress adopted the third increase in three years in the penalty for distribution to anyone under 21.

BUSH administration drug warriors like these laws. Says one: "I don't have the same sense of empathy for someone selling poison." Yet if selling poison was the issue, then the executives of cigarette companies, who are providing a product that kills more than 400,000 Americans annually, would all be hauled away for life. Moreover, not all dealers are equally culpable. In one case, a minor participant in a failed marijuana smuggling operation received 10 years, while the organizer, who snitched on everyo ne else (a mitigating factor under the law), received less than five.

"Mules," or drug carriers, are regularly receiving sentences of over 10 years, even though, according to US District Judge J. Lawrence Irving, "90 percent of the time they don't even know how much they're carrying." Irving, a Reagan appointee, plans to quit because he says he "can't continue to give out sentences that I feel in some instances are unconscionable."

US District Judge William Schwarzer had a similar case in which the jury convicted a peripheral participant in a drug deal and a 10-year sentence followed automatically. Schwarzer considered the punishment grossly disproportionate and said that "the vast majority of federal judges are extremely concerned over the impact of mandatory minimum sentences."

But the Supreme Court, which has under consideration a case involving a man sentenced to life without parole for possessing 1.5 pounds of cocaine, is unlikely to intervene. "Isn't a state entitled to feel more deeply about some crimes than other states do?" Justice Antonin Scalia asked during oral arguments.

Yet it is perverse to punish someone satisfying another's desire for a dangerous substance, however unfortunate, more severely than someone assaulting, raping, robbing, or murdering another person. The 10-year standard term for so many first-time offenders is 10 times the average time served for bribery, embezzlement, and fraud. It is twice the usual punishment for robbery. Since the mid-1980s, the average time served by drug offenders has more than doubled. This, combined with rising numbers of conv ictions, has caused the nation's prison population to explode. An incredible 80 percent of the increase in the federal system is due to drug cases.

These draconian enforcement policies are not working. And locking up minor offenders for increasingly lengthy terms is not just. It is time the country looked outside the criminal law for answers to what is fundamentally a social rather than a legal problem.