Prison conversion - criminologist and author John J. DiIulio Jr

Reason, August-Sept, 1999 by Jacob Sullum

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.