Prison conversion - criminologist and author John J. DiIulio Jr

Reason, August-Sept, 1999 by Jacob Sullum

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.

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.