Revisiting the Drug War

The increasing number of drug offenders in prisons around the country is a major reason why our incarcerated population has reached the two million mark. Passed in the 1970’s, New York State’s so-called Rockefeller laws call for a penalty of 15 years for the sale of two ounces of a controlled substance or for possession of four ounces. Other states followed suit with the passage of similarly harsh mandatory-minimum statutes. Mandatory means that judges are left with little discretion as to whether or not to sentence a drug offender to prisonan important matter, because a judge can ordinarily take offenders’ backgrounds and personal situations into consideration in imposing sentence. Minimum means that the length of the sentence is largely predetermined. A judge’s hands are thus doubly tied, and the outcome has been sentences of draconian length even for nonviolent first-time offenders.

Racial inequities also play a part in the impact of current laws on drug offenders. Most drug users are white, but of those who go to prison almost 80 percent are African-American or Hispanic. The inequity is exacerbated at the federal level by differing mandatory minimums in regard to powder cocaine and crack cocaine. The former is favored by white users, whereas the latter is more frequently found in inner-city neighborhoods. But federal law mandates far harsher penalties for crack offenses. Possession of five grams of crack results in a mandatory sentence of five years, but it would take 100 times that much powdered cocaine to bring the same sentence. Circumstances like this, together with the targeting of inner-city communities by drug enforcement police, have meant that the brunt of the war on drugs is borne by people of color.


Several states have now begun to re-examine their drug laws. New York State’s Governor George E. Pataki, for instance, has proposed shortening mandatory minimums for those with the longest sentences, granting more discretion to the judges who impose them, and allowing treatment in the case of first-time nonviolent offenders. Two states have already moved in this direction. In a ballot initiative last NovemberProposition 36Californians voted in favor of sending low-level drug offenders to treatment centers in lieu of prison. This move alone could mean a yearly reduction of 36,000 in the number of inmates, as well as substantial savings. Incarceration in California costs an average of $24,000 a year, whereas the cost of treatment is an estimated $4,000. Arizona took an earlier step of this kind in 1996, when voters there approved an act that established a treatment and education fund to divert minor drug offenders from prison.

Other positive efforts include the establishment of drug courts, which began in 1994. Several hundred are now in operation around the country. They allow judges to sentence nonviolent offenders to treatment. The treatment involves therapy, frequent urinalysis and regular status hearings before the judge, along with various other rehabilitative components. Those who fail to abide by the requirements of the program are incarcerated. The effect is that of the carrot and stick. The results in terms of reduced recidivism have been encouraging.

Through substance-abuse block grants, the federal government assists states and localities to cover the cost of treatment initiatives of this kind. But what is provided is not enough. In Chicago, for example, the city’s Office of Substance Abuse Policy has stated that federal funds have proven insufficient to provide treatment for all those in need. There and in other cities, moreover, long waiting lists for ordinary low-income citizens who have committed no crime pose a cruel barrier. As a consequence some addicts may turn to crime simply to provide for a habit from which they sincerely wish to be free. Addicts in the community who request and receive treatment are far less likely to commit crime. At present, unfortunately, roughly two-thirds of the federal government’s drug-fighting budget goes not toward treatment but toward interdiction and law enforcement.

Providing more funds for treatment is therefore one of the first steps needed in an effort to address drug addiction. Gen. Barry McCaffrey, the recently retired director of the Office of National Drug Control Policy, has said that while five million drug users need treatment, only two million receive it. Such a situation is nothing short of scandalous. One hopeful sign is a bill introduced in the Senate, the Drug Abuse, Education, Prevention and Treatment Act of 2001, which would provide more funding for prevention and treatment programs, both within and outside the criminal justice system. But the benefit of more funding will be limited unless there are also reforms of mandatory-minimum drug laws. What is needed, consequently, is a two-pronged approach: treatment on demand and a thorough revision of our drug statutes.

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