Drug use may be down, but drug offenders are helping to fill up prisons.


SOURCES: U.S. SENTENCING COMMISSION, NATIONAL HOUSEHOLD SURVEY ON DRUG ABUSE

Predictably enough, the drugs were from Colombia, a nation whose economy is now essentially run by narcotics traffickers. Interdiction is proving to be a Vietnam-style quagmire, sucking billions into an increasingly militarized fiasco. Meanwhile, heroin use in the United States has spiked so much that it recently passed cocaine as the second most common reason (behind alcohol) for users to check into treatment centers.

Grim news, yes, though the overall drug picture in the United States is not as dark as the legalizers would have it. In fact, there are nearly 10 million fewer drug users than in 1985, when the crack epidemic ripped through urban America. "We know what works in terms of prevention," says James Burke, who heads the Partnership for a Drug-Free America. "As perception of risk and social disapproval go up, usage goes down across every ethnic and age group." That decline in demand has in turn driven a decline in crime rates, which are closely related to drugs.

Even so, the collateral damage of the drug war has been immense, and it may yet reverberate through American politics. The reason Gov. George W. Bush isn't being held to account for refusing to answer questions about using cocaine in his 20s is that Americans are basically fair-minded; it was a long time ago. But that same sense of fairness might now, ironically, put the whole subject of drugs back on the table for some serious rethinking — about the glaring injustices of the criminal justice system; the moral ambiguities of baby-boomer parenting; the twists of fate that can leave one man a prisoner, another a possible president.

The drug war can't be abandoned — too many lives are destroyed by drugs — but it can be fought without savage inequities and mindless human warehousing. The U.S. prison population — now at 1.8 million — has nearly quadrupled since the early 1980s. More than half of all American prisoners are nonviolent offenders — usually small-time drug dealers who need help with their own addictions. Many learn in prison how to be real criminals. Their children, in turn, are likely to continue the cycle. (Half the prisoners in Kansas, for instance, have parents who have been imprisoned, too.) U.S. leaders know this. Gen. Barry McCaffrey, the nation's drug czar and an advocate of increased treatment, says "we cannot arrest our way out of the problem."

Yet the United States is still doing just that. While many neighborhoods are deeply grateful to have been cleared of drug dealers, the enforcement of drug laws remains patently unjust. "When it's a low-income kid, it's a criminal-justice problem," says Marc Mauer of the Washington, D.C.-based Sentencing Project. "When it is a suburban kid, it's a health issue."

That inequity began in the 1980s. In the wake of the 1986 death of basketball star Len Bias from a cocaine overdose, Congress and the country panicked. Federal sentencing guidelines, in place for only two years, were tossed aside in favor of extraordinarily rigid "mandatory minimums" that tie the hands of judges in federal drug cases. Bias died from powdered cocaine, but it was crack — used mostly by minorities — that was the target of the new laws. Possession of five grams of crack (about the size of a pack of sugar) brings a mandatory five-year sentence. The same sentence for powdered cocaine requires possession of 500 grams — a 100-fold differential. Crack and coke are pharmacologically identical; only the delivery system (smoking versus sniffing) varies.

Judges, including Supreme Court Justice Anthony Kennedy, a Reagan appointee, have complained about mandatory minimums for years, but politicians won't listen. So the unfairness continues. California U.S. District Court Judge Terry Hatter explains how the system now works in federal cases: "It's all decided behind closed doors by the [prosecutors] and never heard before the public. Judges now have less authority than young lawyers fresh out of law school who are working at the U.S. Attorney's Office."

The public wrongly assumes that if it's a federal case, it must involve drug kingpins. But Department of Justice figures show that 36 percent of federal drug-law offenders are "low level" violators — small-time, nonviolent dealers and their sometimes unwitting friends. Judge Hatter says that many of them land in the federal system arbitrarily: "Police officers get angry with a particular person they arrest and then send them to federal court instead of state court."

Then there's the informant game. Those who implicate others get their sentences reduced, which in practice means that bigger fish — who can finger more people — sometimes get shorter sentences than defendants who are less involved in the drug scene.

Mandatory minimums can create maximum strangeness in sentencing. According to the book "Shattered Lives," more than 2,000 "Deadheads" have been sent to expensive federal prison after undercover agents infiltrated Grateful Dead concerts. Small-time pot growers are often sent away for years, not months. Same with small-fry couriers. Because mandatory minimums are based on weight, LSD-laced sugar cubes automatically bring longer sentences than lighter but equally potent blotter acid.

Some state courts are even harsher than the Feds. In Texas, Melinda George, with no prior drug arrests, angered a jury by missing a court appearance. Jurors saw to it that she was sentenced to 99 years for possession with intent to distribute of one tenth of a gram of cocaine — the equivalent of one "line" of the drug. Besides making it easier to sentence first-time offenders to jail, Governor Bush signed a bill requiring stiffer penalties for dealers whose drugs lead to overdoses. That sounds sensible enough, but opponents say that in practice it means overdosing drug users and their friends will wait longer before going to the hospital for fear of arrest.

Other states are moving away from inflexible sentencing. "States are ahead of Washington on this," says Monica Pratt of Families Against Mandatory Minimums. Michigan last year repealed its "650-lifer" law, which required life sentences for anyone caught with 650 or more grams of hard drugs. Arizona is the first state to offer treatment instead of jail to all of its nonviolent drug offenders. The early results are promising, with more than 70 percent of those on probation testing clean. (Treatment is also much less expensive for the state than incarceration.)

Even in New York, home of the draconian "Rockefeller laws" that cracked down on drugs, first-time offenders arrested for possession rarely end up in jail. Repeat offenders are also offered a drug-treatment alternative to prison. Surprisingly, most offenders don't enroll; they fear automatic incarceration for as much as nine years if they fail the program. But the stick of jail time can also be helpful. Those who complete the New York program have a high success rate in staying off drugs.

Drug treatment often fails, especially when it's short-term. "A lot of these programs don't work," says Rep. John Mica. But they almost always save the government money. A State of California study showed that every dollar spent on treatment saved seven dollars in reduced hospital admissions and law-enforcement costs. That's because each day an addict is on the wagon is a day he's not draining money from society. A 1997 Rand Corporation study found that "treatment reduces about ten times more serious crime than conventional enforcement and 15 times more than mandatory minimums." In some places, the message is getting through. Special "drug courts," begun in Florida in 1992, are now in 400 locations nationally, with specially trained judges mixing treatment and jail as appropriate in individual cases.

Unfortunately, drug courts handle fewer than 2 percent of drug cases. And even as drug-treatment spending is rising overall, in-jail treatment is actually declining. In 1997, only 15 percent of state and federal inmates received substance-abuse treatment during their current terms, down from one third getting help in 1991. This is especially damaging because, as the Columbia University Center on Addiction and Substance Abuse keeps proving, treating all addicted prisoners before release is essential. According to a Bureau of Prisons study, inmates who have received treatment are 73 percent less likely to be re-arrested in the first six months after release than those who have not.

There are other intriguing ideas coming to the surface of the drug debate. Former New York mayor Ed Koch, along with his old enemy Al Sharpton and Harvard Law School professor Charles Ogletree, has been circulating a "second chance" plan for some nonviolent drug felons (not those who, say, smuggle drugs aboard an airliner). If they complete their sentences, receive a high-school equivalency diploma and are certified drug-free a year or two after release, these ex-cons would be eligible for pardons that would expunge their felonies. This would allow them to vote, find better jobs and be more suitable marriage prospects. In other words, move on — just as the 70 million other Americans who were not punished for their youthful mistakes were able to do.

Can any of this pierce the drug-war platitudes of a presidential campaign? Of the major candidates, only Bill Bradley has said he would take a fresh look at mandatory minimums. So far, Bush's "compassionate conservatism" has not included any talk of compassionate treatment options for drug abusers. It's unclear whether the questions about his past will make Bush more likely to show leadership here — or less. "The 'I didn't inhale' led to such ridicule that Clinton was traumatized, and so he hasn't done any reform," says Michael Massing, author of "The Fix," a pro-treatment book. Bush says he's a different kind of baby boomer. Now he and the rest of the pack will have to show that they mean it — by thinking anew about drugs.

With Gregory Beals in New York