Prison Conversion

After studying nonviolent drug offenders, a criminologist who once said "Let 'Em Rot" now says "Let 'Em Go."

Jacob Sullum from the August/September 1999 issue

(Page 4 of 4)

A "safety valve" provision approved by Congress as part of the 1994 Omnibus Crime Bill allows judges to sentence certain nonviolent drug offenders under the guidelines instead of the statutory minimums. The safety valve applies to people with minimal or no criminal histories whose offenses did not involve violence, weapons, or injury; who are not considered major players in the drug trade; and who cooperated with the authorities. In 1997, this provision led to significantly lower sentences--for example, three years off a 10-year term--for about 4,000 people, 21 percent of the drug offenders sentenced by federal courts that year.

On the other hand, Congress has blocked the commission's attempt to do away with especially harsh sentences for crack cocaine, which is treated as if it were 100 times worse than cocaine powder, even though the active ingredient in the two substances is identical. A first-time offender with five grams of crack gets five years in federal prison; he would need 500 grams of cocaine powder to trigger the same penalty. Since nine out of 10 federal crack defendants are black, this policy has a strikingly disproportionate racial impact. Rep. Charles Rangel (D-N.Y.), ordinarily a hard-line drug warrior, has introduced a bill that treats crack and cocaine powder the same for sentencing purposes. The other members of the Congressional Black Caucus also support this reform, while the Clinton administration favors reducing the disparity rather than eliminating it.

At the state level, the most dramatic change has occurred in Arizona, where a 1996 ballot initiative required that nonviolent people convicted of drug possession receive probation. The state legislature tried to override the initiative, but voters approved it again in November 1998. Last year in Connecticut, the state legislature unanimously passed a bill that allows parole for nonviolent drug offenders who have served at least half of a two-to-four-year term; previously, such prisoners were eligible for parole after serving at least two-thirds of their sentence. Also last year, Michigan changed its 650 lifer law, making the minimum sentence 20 years and allowing parole after 15. The parole provision was retroactive, so the 220 people already serving life sentences became eligible for future release.

In New York, Pataki has backed away from his initial criticism of the Rockefeller drug laws and suggested only marginal changes. Last May, he proposed allowing appellate judges to reduce the 15-year minimum to 10 years for first-time offenders convicted of possessing small drug amounts. Even that minor reform was tied to his demand for eliminating parole. Meanwhile, the Democratic legislators who were once reliable critics of the Rockefeller drug laws are avoiding the issue, worried about seeming soft on crime.

In other states, there is still support for cracking down even harder on drug offenders. Last year, a group of 38 Republican legislators in Kansas pushed a bill that would have required a life sentence without parole for anyone convicted of growing 100 or more marijuana plants. They were thus proposing to treat marijuana growers more harshly than first-degree murderers, who in Kansas are eligible for parole after serving 25 years.

Nevertheless, there has been a notable change in the climate of opinion among supporters of the war on drugs. Joseph Califano, president of the prohibitionist Center on Addiction and Substance Abuse, declared last year that "mandatory minimum sentences are a round-trip ticket back to jail and into a life of crime." Even Ed Meese, attorney general when Ronald Reagan signed the legislation establishing most of the current mandatory minimums, is having second thoughts. "I think mandatory minimum sentences for drug offenders ought to be reviewed," he told The New York Times in May. "We have to see who has been incarcerated and what has come from it."

Toward the end of his National Review article, DiIulio suggested that opponents of prohibition make it harder to win repeal of mandatory minimums because they "too often characterize all persons incarcerated for drug crimes as casualties of the War on Drugs." Libertarians, of course, would insist that thugs should be locked up for violating other people's rights, not for engaging in consensual activities such as drug dealing. And it's important to keep in mind that prohibition encourages property crime by inflating drug prices and fosters violence by creating a black market. More than one-fifth of the male prisoners in DiIulio et al.'s Manhattan Institute study said they got involved in crime to raise money for drugs, and some drug offenders may have a history of violence because they tried to protect their own lives and property within the context of a black market. We have no way of knowing whether these same individuals would be getting arrested in the absence of prohibition, but it seems likely that at least some of them would not.

Still, DiIulio has a point: It is easy for critics of the war on drugs to imagine that everyone locked up for drug offenses is a medical marijuana user or a hapless mule who swallowed condoms full of heroin out of financial desperation, rather than a vicious, ruthless criminal. But if opponents of prohibition have too rosy a view of drug offenders, policy wonks like DiIulio have been guilty of the opposite error, implying that virtually everyone incarcerated for a drug crime is a predatory criminal. The reality, it seems, is quite different, and DiIulio has been courageous enough to admit that. "You've got to give him credit for being willing to stick his neck out and change," says Stewart, the president of FAMM. "I wish politicians would do that too."

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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:

…Iulio turned a new leaf before he even set foot in the White House to work for G.W. Bush in 2001. Contrary to the surprise recently expressed by other drug policy groups, Reason Magazine called DiIulio an “ outspoken critic ” of drug sentencing policies as far back as 1999. After DiIulio left the White House, Time Magazine published a story in 2003, noting that he “now opposes mandatory minimums for drug crimes,” and Rolling

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…Iulio turned a new leaf before he even set foot in the White House to work for G.W. Bush in 2001. Contrary to the surprise recently expressed by other drug policy groups, Reason Magazine called DiIulio an “ outspoken critic ” of drug sentencing policies as far back as 1999. After DiIulio left the White House, Time Magazine published a story in 2003, noting that he “now opposes mandatory minimums for drug crimes,” and Rolling

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