Prison conversion - criminologist and author John J. DiIulio Jr

Reason, August-Sept, 1999 by Jacob Sullum

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.