From late 1996 through September 1997, DiIulio, Piehl, and University of New Mexico sociologist Bert Useem surveyed about 1,500 incoming prisoners in New York, Arizona, and New Mexico. They used anonymous questionnaires to ask the prisoners detailed questions about their backgrounds and criminal histories. They were not able to obtain access to the prisoners' records for confirmation, but research by the RAND Corporation in the 1970s had shown a good correspondence between inmates' self-reports and their rap sheets, once the data were adjusted to exclude apparent fakers (those claiming to have committed thousands of crimes in a year, for example).
DiIulio and his collaborators found that drug-only offenders accounted for 28 percent of incoming male prisoners in New York, 18 percent in Arizona, and 15 percent in New Mexico. Among female prisoners, the figures were 49 percent, 20 percent, and 14 percent, respectively. In New York, drug offenders represented 47 percent of new prisoners in 1997, so DiIulio et al.'s findings indicate that most of them were not predatory criminals. "There is a large chunk of genuinely drug-only offenders," Useem says. "That was a surprise to me, and I think to John." He says the percentage of prisoners in this category "was strikingly high to me--and worrisome."
These results had a dramatic impact on DiIulio's public posture vis-à-vis drug offenders.
"If it turns out that we have reached the point of diminishing returns with respect to somewhere between a third and half of the people who are now being sentenced to prison under mandatory minimum and kindred laws as drug offenders," he says, "even though [sentencing reform] isn't going to free up a gazillion beds, it's going to free up a certain amount of space, it's going to relieve a certain amount of drain on the public purse, and it's going to make the system more effective at delivering public safety for the marginal tax dollar."
DiIulio laid out this argument in a March 12, 1999, op-ed for The Wall Street Journal. "Current laws put too many nonviolent drug offenders in prison," he declared, citing highlights from the three-state study, which was published in early summer by the Manhattan Institute. Among other things, he recommended abolition of mandatory minimums, reform of the federal sentencing guidelines, release of nonviolent drug offenders, and an end to the federalization of crime policy. "Such changes would undoubtedly reduce the number of drug-only offenders in federal prisons by tens of thousands," he wrote.
DiIulio followed that up with a May 17 National Review article making "a conservative crime-control case" for repealing mandatory minimums. "To continue to imprison drug-only offenders mandatorily," he wrote, "is to hamstring further a justice system that controls crime in a daily war of inches, not miles, and that has among its main beneficiaries low-income urban dwellers." He explains: "I view the criminal justice system as a sorting machine....For me, it's about one thing, essentially: How do you improve at the margin the system's capacity to sort in ways that increase public safety?"
DiIulio says "a number of people were surprised by my National Review article. `Surprised' is one way to put it....Another way to put it would be, `He's been running around in the streets too much, and he finally got hit on the head.'" The critics included his father, a former Philadelphia sheriff's deputy whose reaction DiIulio describes this way: "Spend enough time in these academic places, eventually you'll turn stupid."
The evolution of DiIulio's position partly reflects better-focused research with larger samples. It also reflects a changing reality. The number of people incarcerated for drug offenses has been increasing since 1980, in both absolute terms and as a share of the total prison population. The 1991 Bureau of Justice Statistics survey of state prisoners found that 21 percent were drug offenders, compared to 6 percent in 1979. Judging from DiIulio et al.'s figures for recently incarcerated prisoners, that percentage has increased since then. In 1994, 61 percent of federal prisoners were drug offenders, up from 25 percent in 1980. The proportion of local jail inmates who are drug offenders rose from 9 percent in 1983 to 23 percent in 1989 and now appears to have leveled off.
Last year there were 1.8 million people behind bars in the United States, compared to some 500,000 in 1980. About one in four--more than 400,000--were there for drug law violations, compared to about one in 10, or 50,000, in 1980. As more and more drug offenders have been imprisoned, it is likely that the percentage who are not predatory criminals has risen.
DiIulio says he has seen anecdotal evidence of such a trend: "I've had prison wardens whom I've known for years say, `I'm getting guys in now who, when I review their sheets, I can't believe they're here.'" The wardens acknowledge that there always were a few such prisoners, he says, "but when the outlier becomes the central tendency, it's time to re-examine policy."
DiIulio says another important influence has been Ethan Nadelmann, a close friend from graduate school who directs the Lindesmith Center and is a leading advocate of drug policy reform. "He's a constant pain in the ass," DiIulio says with a chuckle. "He was constantly saying, `John, you're a reactionary prohibitionist.'"
For his part, Nadelmann says, "I used to feel that I would win John over two or three days a week, and Wilson would win him over the rest of the time. The problem was that he would do his writing on the Wilson days." But he adds, "If you look closely at John's writings, you can detect that he's never been a vigorous drug warrior, someone who believed that there was an inherent immorality to drug use that merited a draconian government response."
Some observers speculate that religion also had something to do with DiIulio's change of heart regarding drug offenders. A self-described "born-again Catholic," DiIulio has in recent years emphasized the importance of "the faith factor" in preventing crime and dealing with drug addiction. "I think it's been both a personal, spiritual revolution for him and an analytical change," says Julie Stewart, president of Families Against Mandatory Minimums (FAMM). "He's become softer and more forgiving as a result of his religious experience. But he also backs it up with data."
DiIulio discounts the spiritual take on his policy conversion. "I get a lot of that lately on a number of fronts," he says. "The religion thing, I think, might explain a little bit of the compassion." But he notes that his views on drug offenders began changing "when I was still just a good old-fashioned heathen." Stewart concedes that DiIulio has been criticizing mandatory minimums for several years, "but I guess I didn't really hear him until now. We're thrilled....I look at him as an ally."
Even with scholars like DiIulio advocating the repeal of mandatory minimums, the prospects for fundamental reform are iffy. Progress so far has come in small pieces. The U.S. Sentencing Commission, for instance, has changed the way that LSD and marijuana weights are calculated under the guidelines, leaving out part of the carrier (usually paper) for LSD and making the presumed yield per marijuana plant more realistic. Because these changes do not affect the way drugs are weighed under the mandatory minimum statute, the upshot is sentencing "cliffs": If a first-time offender is caught with 99 marijuana plants, he is subject to Sentencing Commission guidelines; each plant counts as 100 grams of marijuana, corresponding to a sentence range of 15 to 21 months. If he has one more plant, however, he is subject to the congressional weight standards; each plant counts as a kilogram, triggering a mandatory sentence of five years.
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