Denese Calixte, an illiterate Haitian immigrant, managed to support her seven children by picking fruit in Florida for about $60 a day. In 1994, she fell from a ladder and injured her neck. Unable to work, she was desperate for money when a neighborhood crack dealer offered her $200 to keep his supply in her house at night. Early one morning, the police broke into her house and found 69 grams of crack. Convicted of possession with intent to deliver, Calixte was sentenced to 10 years in federal prison.
Loren Pogue, a real estate agent from Missouri, does not fit the stereotype of a drug trafficker. The father of 27 children, 15 of them adopted, and the co-founder of a home for orphans, he is an Air Force veteran, a Shriner, and a member of the Lions Club, the VFW, and the American Legion. Until 1990, Pogue's only trouble with the law was a 14-month sentence for tax evasion in the 1970s. But then he helped a part-time employee sell a plot of land in Costa Rica, where Pogue had moved with his family. As it turned out, the employee was a paid government informant, the buyers were federal agents pretending to be drug dealers, and the sale was a trap. Because the agents had talked about using the land as an airstrip to fly cocaine into the United States (even though the site was not suitable for that purpose), Pogue was charged with conspiracy to import drugs and money laundering. He is serving a 22-year sentence.
Despite a heroin habit that began in high school, Brenda Pearson was leading a stable, productive life. Married for two decades, she had two children and a job at a New York securities firm. She had never sold drugs or stolen anything to support her habit. In 1994, a close friend of Pearson's who was also a heroin user moved from New York to Michigan. She asked Pearson to mail heroin to her because she was having trouble finding a satisfactory supply. Over the course of a year, Pearson sent her friend about 40 packages, each containing less than 1.5 grams of heroin in single-dose bags that she had purchased on the street. When Pearson was caught, New York and federal prosecutors were not interested in the case, since she was simply sharing heroin with a friend. But a Michigan prosecutor had Pearson extradited and charged her with heroin distribution. She plead guilty to 10 counts and received 10 consecutive sentences of five to 20 years each. She will not be eligible for parole until she serves her 50-year minimum.
In 1991, David Ciglar, an Oakland, California, firefighter and paramedic credited with saving more than 100 lives, was training for a new career as an MRI technician, having been disabled by an injury during a rescue. Acting on a tip, agents of the Drug Enforcement Administration found 167 marijuana seedlings in his garage. To prevent prosecutors from charging his wife, which would have sent her to prison and their three children to a foster home, Ciglar pleaded guilty to marijuana cultivation. Because he had a prior conviction for cocaine possession and the DEA found an antique gun replica in his house, Ciglar received a 10-year sentence. The government also confiscated the family's home.
These cases, described in the newsletter of Families Against Mandatory Minimums and in the book Shattered Lives: Portraits From America's Drug War (www.hr95.org), are supposed to make you shake your head. Even people who support the crusade for a drug-free America can see that something is wrong with separating decent, productive individuals from their families and making them serve hard time with violent felons. But while opponents of prohibition tend to see such cases as typical, representing the inherent injustice of the war on drugs, supporters see them as aberrations. According to this view, despite occasional instances of excessive punishment, drug offenders generally deserve the treatment they get: Not only do they contribute to a host of social problems by peddling addictive drugs, they also commit crimes against people and property. In other words, they would belong in prison even if there were no drug laws to break.
Assuming that involvement with illegal substances is a marker for anti-social behavior, the drug laws may very well make it easier to incapacitate predatory criminals. But so might a policy that allowed police to round up young black men, guys with tattoos, or simply people they thought looked suspicious. The fact that such discrimination might help prevent crime does not make it fair or reasonable. Nevertheless, it is much easier to support the status quo if you believe that people imprisoned for drug offenses are, with few exceptions, dangerous thugs. Conversely, if you believe that many drug offenders are people like Denese Calixte, Loren Pogue, Brenda Pearson, and David Ciglar--people who do not represent a threat to others--the argument for keeping them all locked up is far less compelling.
Until recently, it was impossible to say with much confidence which view was closer to the truth. But during the last five years or so, evidence from various sources has indicated that a sizable percentage of convicted drug offenders, and perhaps a majority of those now being sentenced in some jurisdictions, are not predatory criminals. These "drug-only offenders," as researchers have dubbed them, represent a substantial and growing share of the total prison population, largely because of state and federal laws that impose mandatory minimum sentences without parole for certain drug crimes. The troubling implications of this trend for both justice and public safety have made sentencing reform a cause embraced by hard-headed conservatives as well as soft-hearted liberals.
John J. DiIulio Jr., a criminologist who has little patience with what he calls "the soft-in-the-head anti-incarceration left," is emblematic of this shift. DiIulio was initially skeptical of the notion that the drug laws imprison large numbers of people who are not menaces to society. But he recently completed research that provides some of the strongest evidence yet for this claim. Though he still supports prohibition--not surprising for a political scientist who trained with a prominent defender of the drug laws, James Q. Wilson, and co-authored a book on crime with former drug czar William Bennett--DiIulio has become an outspoken critic of current sentencing policy. "Basically, what you're getting from me is coerced by the latest data," he says. "It seems to me that with respect to these drug offenders, the mandatory minimums have begun to go haywire."
A 41-year-old Harvard Ph.D., DiIulio is a former professor of politics and public policy at Princeton and former director of the Brookings Institution's Center for Public Management. He is now a senior fellow of the Manhattan Institute and the Fox Leadership Professor of Politics, Religion, and Civil Society at the University of Pennsylvania. An expert on prison management who published influential books on that subject in 1987 and 1991, he later turned his attention to the cost-effectiveness of incarceration. Based on surveys of prisoners, he concluded that it costs less to keep the average predatory criminal locked up than it does to let him go, given the crimes he would commit if he were free. Publishing articles with titles like "The Value of Prisons," "Prisons Are a Bargain, by Any Measure," and "Let 'Em Rot," DiIulio was often cited by conservatives advocating more prisons and longer sentences. "No one--at least, no one in elite policy-wonk circles--is a bigger fan of incarcerating known, adjudicated adult and juvenile criminals than me," he wrote in a 1996 article for Slate.
But DiIulio's argument for the cost-effectiveness of prisons hinged on the ability of the criminal justice system to distinguish between offenders who would prey on their fellow citizens if released and offenders who would not pose a threat to others. Locking up people in the latter category would not only waste money; it would waste prison space that could otherwise have been used to incapacitate predatory criminals. Given this consideration, the question of how to deal with drug offenders was bound to come up.
DiIulio took an early crack at the issue of whether prison is cost-effective in a 1991 article for The Brookings Review co-authored by Anne Morrison Piehl, then a Princeton doctoral candidate and now an economist at Harvard's John F. Kennedy School of Government. There DiIulio and Piehl simply excluded drug crimes from their calculations, following the standard practice of other researchers in this area. "This is not the place to referee the drug debate," they wrote.
In a Wall Street Journal op-ed published the next year, DiIulio downplayed the distinction between drug offenders and predatory criminals. "About 90 percent of prisoners are serious (two or more felony convictions) or violent offenders," he wrote, citing what became one of his favorite statistics. That figure, based on a 1991 survey of state prisoners by the Bureau of Justice Statistics, puts people arrested twice for drug offenses (such as David Ciglar, the California firefighter) in the same category as serial bank robbers, rapists, and murderers. In the opening paragraph of the Journal article, DiIulio referred in one breath to "criminals who assault, rape, rob, murder and deal drugs."
When DiIulio directly addressed the treatment of drug offenders in a 1993 book review for The New Republic, he implied that they were getting off too lightly. "It is not unreasonable to argue," he wrote, "that the problem with the `get-tough' approach of the last twenty-five years is that it hasn't actually been followed. Despite mandatory sentencing laws, most drug offenders and other felons continue to spend only a fraction of their sentences behind bars."
As part of a "radical experiment" in "the serious enforcement of existing laws," DiIulio said, "prosecutors and judges would need to tighten the screws on drug-law violators who are used to copping pleas to lesser charges and spending little or no time locked up." Denying that "the war on drugs has placed tens of thousands of petty first-time drug-law violators behind bars," he said "the vast majority of `drug' criminals behind bars were convicted of sale or manufacture, not simple possession, and had prior criminal records. Many of them would be and should be incarcerated even if the antidrug laws did not exist."
Meanwhile, an increasing number of researchers andjudges were concluding that the sentencing policies set by Congress in the 1980s, at the height of the Reagan-Bush drug war fever, were senselessly rigid and excessively harsh. Supposedly aimed at "drug kingpins," the mandatory minimum sentences that Congress began to enact in 1986--which were tied to drug weight, without regard to the extent of the defendant's culpability or the level of his involvement--mainly affected small-time operators and flunkies. According to a 1994 report from the Federal Judicial Center, less than 15 percent of the defendants convicted under mandatory minimum statutes in fiscal year 1992 were drug trafficking managers or supervisors. Not surprisingly, the report concluded that "mandatory minimums have had no observable effect" on crime or drug availability.