Also in 1994, a report from the U.S. Department of Justice concluded that "a substantial number of drug law violators who are sentenced to incarceration in Bureau of Prisons custody can be classified as `low-level.' " Under one set of criteria used in the report--no record of violence, no involvement in sophisticated criminal activity, and no prior imprisonment--there were 16,316 such prisoners in June 1993, representing 36 percent of drug offenders and 21 percent of all federal inmates. Even when the DOJ restricted the category to prisoners with no prior arrests in their records, there were 9,673 low-level offenders, 21 percent of the people serving time for drug crimes. Average sentences were nearly seven years for the first group, more than five years for the second. The report noted that sentences for drug offenders with minimal or no criminal histories had more than doubled since 1985. "The relative harm of drug trafficking," it said, "has been elevated above that of almost every serious crime other than murder."
By the early 1990s, federal district court judges such as Jose Cabranes in Connecticut, Stanley Sporkin in the District of Columbia, and Jack B. Weinstein in New York were openly criticizing the laws that forced them to give sentences they considered unjust. They were joined by appellate judges and Supreme Court justices. Testifying before Congress in 1994, Justice Anthony Kennedy said, "I think I'm in agreement with most judges in the federal system that mandatory minimums are an imprudent, unwise, and often unjust mechanism for sentencing." In a 1996 survey by the Federal Judicial Center, four-fifths of district and circuit court judges said the guidelines written by the U.S. Sentencing Commission should not be linked to the penalties set by Congress, an approach that has made sentences longer even for offenders not covered by the statutory minimums.
The federal experience with mandatory minimums was mirrored at the state level, where sentences could be even more onerous. Michigan had its notorious "650 lifer" law, under which 650 grams of cocaine or heroin, less than a pound and a half, triggered a life sentence without parole. But the real leader in mandatory minimums was New York, which had been punishing drug offenders with unusual severity since 1973. That was the year that Gov. Nelson Rockefeller pushed the state legislature to pass two laws, the first establishing mandatory minimums for drug offenses, the second raising sentences for repeat offenders.
These laws have been modified over the years, mainly to reduce penalties for marijuana offenses, but they remain exceptionally harsh. A first-time offender convicted of selling two ounces or possessing four ounces of heroin or cocaine receives a mandatory sentence of 15 years to life--the same as the penalty for murder. Possessing as little as half a gram of pure cocaine or heroin triggers a minimum sentence of a year. If it's a second offense, the sentence is doubled.
A 1997 report from Human Rights Watch noted that drug offenders represented more than a third of New York's prison population, up from less than a tenth in 1980. This group was not limited to predatory criminals: Forty-four percent had never been incarcerated before, and 17 percent had no prior arrests. Even the repeat offenders did not look so dangerous upon closer examination: Among the drug offenders sentenced as second-time felons in 1995, 55 percent had been convicted of another drug crime the first time around; only 20 percent had been convicted of a violent felony.
Like federal mandatory minimums, the Rockefeller drug laws come down hard on people who are not exactly kingpins. In a 1993 case, an appeals court reviewed the sentence of Jesus Portilla, an asbestos remover with a wife and small child. A first-time offender, he had received a sentence of eight and a third to 25 years for a $30 cocaine sale. In 1997, Gov. George Pataki granted clemency to Angela Thompson, a first-time offender who had served eight years of her 15-year sentence. When she was 17, she had done the bidding of her uncle and legal guardian by trying to sell cocaine to an undercover cop.
As with the federal sentences, judges were among the first to recognize the injustices created by the Rockefeller drug laws. In a 1976 dissent, three judges on the New York Court of Appeals, the state's highest court, called a sentence of 15 years to life for heroin possession "unconscionable and barbaric." State trial judges publicly expressed their anguish at being forced to impose palpably unfair punishments. By 1995, George Pataki, another ambitious Republican at least as anxious to maintain a tough-on-crime image as Nelson Rockefeller, was conceding that harsh penalties for drug offenders "have filled New York's prisons and have not increased public safety."
Surprisingly, critics of the Rockefeller drug laws also included John DiIulio, who called for their abolition at an October 1995 governor's forum in Albany. His decision to oppose mandatory minimums came around the same time as a shift in his rhetoric regarding drug offenders. Five months before, at a conference in Berkeley, he had observed that "some small but as yet undetermined fraction of imprisoned state and federal drug law violators are neither major drug traffickers nor persons who have committed lots of serious non-drug felonies. At present, it is impossible to know how many low-level `drug-only' offenders--first-time or repeat criminals whose only crimes, or most serious crimes, have been low-level drug crimes or mere possession--are behind bars in America today. One recent survey of state prisoners suggests that the figure could be as high as 15 percent."
DiIulio was referring to a 1993 study that he and Anne Morrison Piehl had conducted in New Jersey, where 30 percent of the respondents reported that drug offenses were the only crimes they had committed in the four months before they were locked up. "If even half of the inmates who report that their only crime was selling drugs are telling the truth," they wrote in the Winter 1995 Brookings Review, "then 15 percent of New Jersey's spending on prisons is being devoted to `sending a message' about drug dealing." In the New Jersey study, DiIulio says, "you start to get a hint of this drug-only population being a not huge but nonetheless significant part of the mix."
DiIulio and Piehl emphasized that drug dealers are easily replaced, so "the best estimate of the incapacitation effect (number of drug sales prevented by incarcerating a drug dealer) is zero." DiIulio says this conclusion was strongly influenced by the views of his mentor, Wilson, who had written in Commentary the previous year that prison terms for crack dealers "do not have the same incapacitative effect as sentences for robbery....A drug dealer sent away is replaced by a new one because an opportunity has opened up." While cautioning that "we do not yet have a definitive estimate of the fraction of the prison population that consists of drug-only offenders," DiIulio and Piehl suggested that locking up such offenders was a waste of money.
DiIulio continued this theme in a 1996 New York Times op-ed. "Prison definitely pays," he wrote, "but there's one class of criminal that is an arguable exception: low-level, first-time drug offenders....Though the numbers of petty drug offenders may prove small, it makes no sense to lock away even one drug offender whose case could be adjudicated in special drug courts and handled less expensively through intensively supervised probation featuring no-nonsense drug treatment and community service." He repeated his call for repealing the Rockefeller drug laws, describing their abolition as part of the effort "to keep violent and repeat criminals where they can't harm the rest of us."
Two months later, however, DiIulio was again emphasizing that drug offenders are dangerous characters who belong in prison. "Almost all imprisoned drug traffickers, federal and state, have long criminal records, adult and juvenile," he wrote in "No Angels Fill Those Cells," a Washington Post op-ed. "Only their latest or most serious adult conviction is for a drug offense. There are exceptional cases of truly first-time, non-violent, low-level drug offenders who end up behind bars. But they are the exceptions that prove the rule....Rather than accepting the usual bogus generalizations about drug offenders or non-violent offenders behind bars, demand to know...the totality of the adult and juvenile crimes committed by imprisoned felons against life, liberty, or property...In the end, the truth about prisoners' complete criminal histories will prevail--and the truth will set very few prisoners free."
That conclusion was based largely on a study for the Wisconsin Policy Research Institute that DiIulio and WPRI analyst George A. Mitchell had just completed. In a sample of 170 inmates from Milwaukee County, they found that 12, or 7 percent, had been sentenced for drug offenses. Within this group, 75 percent had a record of violence. Of the remaining three, one had been convicted of various property crimes, including burglary and auto theft. So just 17 percent of the drug offenders, and less than 3 percent of the total prison sample, were guilty only of drug crimes.
DiIulio concedes that the drug offender subgroup was "a teeny, teeny sample"; the study was not designed to get at the issue of drug-only offenders. Still, "it gave me a little bit of pause," reinforcing his initial inclination to believe that drug-only offenders are a rare breed. He reiterated that impression at a talk he gave at the Lindesmith Center, a Manhattan-based drug policy think tank, a few days before his essay appeared in the Post. But he said he was undertaking a study of New York prisoners in which he planned to look at a larger sample.
While DiIulio was working on that project, evidence from Massachusetts suggested that drug-only offenders are not so unusual after all. A 1997 study by Piehl, DiIulio's collaborator on the New Jersey survey, found that two-thirds of the state's recently incarcerated drug offenders had never been convicted of a violent crime. Data obtained by The Boston Globe from the Massachusetts Department of Corrections in 1998 showed that 84 percent of prisoners serving mandatory sentences for drug crimes were first-time offenders in the state.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
Pingback| 3.11.10 @ 2:15AM
Medical Cannabis: Voices from the Frontlines » Blog Archive » John DiIulio statement links to this page. Here’s an excerpt:
Pingback| 3.12.10 @ 3:00AM
John DiIulio statement is no surprise, but a reminder to urge change on medical marij links to this page. Here’s an excerpt:
nfl jerseys|11.15.10 @ 2:37AM|#
chyjxtxh