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LEGAL AFFAIRS - Good Pardons, Bad Laws, and Bush's Unique Opportunity LEGAL AFFAIRS - Good Pardons, Bad Laws, and Bush's Unique Opportun...

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LEGAL AFFAIRS - Good Pardons, Bad Laws, and Bush's Unique Opportunity

The uproar over ex-President Clinton's abuse of his pardon power in some cases has overshadowed his salutary use of it in others-in particular, his commutations of the savagely severe prison terms of more than 20 nonviolent, nondangerous bit players in drug deals. These clemencies were long overdue palliatives to the cruel and irrational sentencing laws that sailed through a drug-crazed Congress in the 1980s. But Clinton freed only a fortunate few of the tens of thousands of nonviolent prisoners-mostly black and Hispanic-currently serving mandatory minimum prison terms of five, 10, and 20 years for relatively minor drug crimes. Thousands more will disappear into the gulag every year.

This grievous injustice-which prevents little, if any, crime-will continue unless President Bush leads a bipartisan push for sentencing reforms that combine toughness with fairness. There could be no better way for the President to show that compassionate conservatism is more than a slogan and that he has the courage of his convictions about redemption and rehabilitation.

The thousands who could be salvaged are people no more dangerous than Derrick Curry of suburban Prince George's County, Md. He was a community college student with $150 in his bank account and dreams of playing pro basketball when he got into trouble for the first time in 1990, at the age of 20. Under the influence of a neighborhood friend turned narcotics dealer, Curry did a brief stint as a delivery boy for a drug ring. It ended when he delivered a pound of crack cocaine from the friend to federal undercover agents.

A few months of jail and an intensive counseling regime could have shocked this kid straight. Instead, he got the minimum sentence required by federal law: 20 years, without parole. Most murderers get less than 10 years, most rapists less than five. "Punish him, yes!" Curry's devastated father, Art, then a high-school principal, told The Washington Post in 1994. "Put him in a boot camp, work his butt off, give him some training. But don't take his life away!"

Curry got part of his life back on Jan. 20, when Clinton set him free. A few weeks before, Clinton had told Rolling Stone that "there are tons of people in prison who are nonviolent offenders," that "the sentences in many cases are too long," and that "the disparities are unconscionable between crack and powdered cocaine."

That was quite a switch for Clinton, who for eight years found it politically expedient to have his White House and Justice Department squelch a succession of proposals to bring some sanity to the system. One of the laws the Clinton Administration had defended mandates that crack defendants (most of whom are black) must serve five years if caught with 5 grams and 10 years if caught with 50 grams. That's far more prison time than is required for powder-cocaine defendants (many of whom are white) who are caught with identical quantities.

It was not until after November's election that Clinton expressed any unhappiness about his own Administration's use of such laws to send people such as Curry to rot in federal prison. Clinton's hypocrisy and cowardice on this issue have been of a piece with his 1992 detour from the New Hampshire primary to preside over the execution of severely brain-damaged Arkansas death row inmate Rickey Ray Rector. After 20 years of watching Republicans win by calling Democrats soft on crime and drugs, Clinton had decided to ruin as many lives as necessary to sound as tough as any Republican.

This may have been smart politics, but it was disastrous policy. A 1993 Justice Department study suggested that some 21 percent of all federal prisoners, and one-third of federal drug prisoners, are nonviolent, low-level offenders who pose little or no danger to society. That would come to more than 30,000 of the 147,000 people in federal prisons today. As Clinton slithers into infamy, the time seems ripe for Bush to forge a bipartisan coalition to reform our drug sentencing laws. The objective would be neither to free dangerous criminals nor to let minor drug offenders escape punishment. It would be to give nonviolent offenders such as Derrick Curry a chance to become productive citizens and kids caught in future drug deals a chance to work their way out of the gulag. It would also save billions of the dollars that we now spend to incarcerate 2 million prisoners. As our imprisonment rate has soared to several times that of any other civilized nation, so has the cost.

The time is ripe because public opinion is turning against the lock-'em-up approach to the drug war, which has dragged on for decades with little impact on the drug supply and no end in sight. One sign of this change of heart was California voters' adoption in November of Proposition 36, which calls for sending minor drug offenders to treatment instead of prison. Another sign is the proposal by New York Gov. George E. Pataki-a Republican with a hard-line history but a keen sense of which way the wind is blowing-that the state relax its harsh Rockefeller drug laws. And the currently popular movie Traffic has made waves by combining a vivid portrayal of the horrors of drug abuse with a powerful indictment of the drug war, which it portrays as a war against American families.

At the same time, some leading conservatives and drug-warriors have joined the near consensus among moderate and liberal experts that long prison terms for minor drug offenders waste billions of dollars and thousands of lives with little or no impact on crime. Even Gen. Barry McCaffrey, Clinton's gung-ho drug czar, has said he is "unalterably opposed" to mandatory-minimum drug sentences. And self-described "crime-control conservative" John J. DiIulio, previously an influential advocate of long prison terms, had a change of heart five years ago. He concluded that we should devote more resources to drug-treatment and crime-prevention programs and to the kind of prisoner-rehabilitation effort that had been out of fashion for decades. "There is a conservative, crime-control case to be made for repealing mandatory-minimum drug laws now," DiIulio wrote in 1999, stressing that while we should still "incarcerate the really bad guys," we should give judges discretion to send nondangerous defendants to mandatory treatment and rehabilitation programs. DiIulio now sits in the White House as director of Bush's much-touted Office of Faith-Based and Community Initiatives. He has no official role in law enforcement, but he does have access to the President's ear.

No President will ever be in a better position than Bush, a conservative Republican who once had a drinking problem, to lead a bipartisan movement to help people with drug problems by reforming the sentencing laws, in Nixon-goes-to-China fashion. Attorney General John Ashcroft, long a champion of harsh mandatory-minimum sentencing laws, could be an obstacle. But Ashcroft's public statements since taking office have been consistent with a little-noticed Bush-Cheney position paper last year stressing drug education and treatment and omitting the usual Republican demands for ever-harsher criminal penalties. Perhaps Ashcroft, who has forthrightly denounced racial profiling, will come to see that the drug war's sentencing regime has had an even more troublesome discriminatory impact. Almost 80 percent of the people entering the nation's prisons are black or Hispanic, despite studies showing illegal drug use to be equally prevalent among whites.

One conservative who still advocates long prison sentences for even relatively minor drug offenders is William J. Bennett, who was the first President Bush's drug czar from 1989-90. "Crime is down-way down-and one of the reasons is locking up a lot of people," says Bennett, stressing that many nonviolent crimes deserve punishment and many people convicted only of nonviolent drug offenses are in fact violent criminals. Bennett also expresses concern (as has DiIulio) that the liberal brand of drug treatment often fails because probation and parole programs lack the resources and the will to coerce long-term participation by the many drug offenders who will otherwise drift back to old haunts and old habits.

There is some truth to this. But it does not negate the 1993 Justice Department numbers suggesting that tens of thousands of the small-time drug offenders in federal prison have never been personally implicated in acts of violence. Bennett's concerns can be met by letting drug offenders avoid prolonged imprisonment only if they are truly nonviolent small-timers and if they go into drug-testing and treatment programs that are adequately funded and made genuinely mandatory by the threat of imprisonment for those who slip.

To be both politically viable and effective, any sentencing reform proposal should replace prolonged imprisonment with just such an intensive regime of tough love, often including months of shock incarceration and years of mandatory drug treatment and education. As even Bennett concedes, with the right incentives and opportunities, many small-time drug offenders can stay clean and straight. Let's stop taking their lives away.

Stuart Taylor Jr. National Journal

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