Enforcement has dominated state drug control strategy for the past two decades.  Rapidly rising drug arrests coupled with stiff new sentencing laws have led to an exponential increase in the number of drug offenders in state prisons.[57] The number of state inmates for whom drug offenses were the most serious charge jumped from 19,000 in 1980 to 236,800 in 1998 (the most recent available figure).[58] This surge in state drug prisoners accounts for nearly one-third of the expansion in the nationwide prison population, which has quadrupled in size since 1980.[59] The rate of growth in the states’ drug prisoner population was 50 times greater than that of the U.S. population overall.[60]

Drug offenders account for half of the increase in the total population of nonviolent state prisoners.[61] In 1998, the majority of the 236,800 imprisoned drug offenders had either no criminal history (17 percent) or prior convictions only for drugs or other nonviolent offenses (59 percent).[62] The number of women serving time for state drug offenses has risen ten-fold since 1986, nearly twice the rate of increase for men.[63] Many women inmates have no criminal history or involvement with high-level trafficking, and have been implicated in drug crimes through spouses or boyfriends.

Every state now has criminal laws that include some combination of determinate sentencing, sentencing guidelines, and mandatory minimum prison sentencing, while a dozen states have also abolished discretionary parole.[64] New York and Michigan led the way in the 1970s with harsh new mandatory sentencing legislation.  New York’s “Rockefeller Drug Laws” require a minimum prison sentence of 15 years to life for selling two ounces or for possessing four ounces of heroin or cocaine — the same punishment faced by a  person convicted of murder in New York.[65] In Michigan, a first-time offender possessing 50 grams (1.75 ounces) of cocaine or heroin faces a minimum prison sentence of 10 to 20 years.[66] According to the most recent comprehensive survey, 36 states had enacted some form of mandatory minimum sentencing for drug offenses by 1996.[67]

The Federal government also enacted stiff drug sentencing laws during the 1980s, including a mandatory minimum five year sentence for a first-time offense of possessing more than five grams (about a teaspoon) of crack.[68]  Drug offenders now account for nearly 60 percent of the 135,000  Federal prison inmates.[69]  While drug offenders constitute a smaller fraction (21 percent) of all state prison inmates, the total state prison population (1.231 million) is nine times the size of the Federal prison population.[70]  State prisons hold the vast majority of drug inmates nationwide, including 75 percent of all drug trafficking prisoners and 95 percent of all drug possession prisoners.[71]

Stiff new prison penalties for drug offenses continue to be enacted.  During the 1990s, many states raised mandatory minimum penalties for sale of drugs to a minor or near a school.[72] The Federal government and some states have also targeted newly popular drugs, including methamphetamine and MDMA (“ecstasy”).  Since 1998, Idaho, Iowa, Missouri and Nebraska have all imposed stiffer prison sentences for methamphetamine manufacturing and distribution.[73] In July 2000, New Jersey  imposed a mandatory minimum prison term of three and one-third years for possession with intent to distribute five ounces or more of ecstasy.[74] In March 2001, the U.S. Sentencing Commission, under pressure from Congress, quadrupled the Federal guidelines for sale of 200 grams (seven ounces) of ecstasy from sentences of 15 months to five years — an equivalent penalty for dealing 500 grams (1.1 pounds) of powder cocaine.[75]

Mandatory minimum drug laws are also having an impact  in smaller states like Connecticut and Iowa, whose overall incarceration rates between 1995 and 2000 outpaced the national average by 71 percent and 83 percent respectively.[76] Connecticut’s courts sent nearly twice as many drug offenders to prison under mandatory sentences in 2000 than they did in 1995,[77] while in Iowa the number of people sent to prison under mandatory minimum drug laws more than tripled.[78] Drug offenders in Iowa account for nearly half the increase in the state’s incarceration rate from 1995 to 2000.[79]

Mandatory minimum laws are intended to broaden the range of drug offenses subject to mandatory prison time while limiting (if not eliminating) judicial discretion and enhancing prosecutorial leverage.  However, the nature and implementation of these laws in practice  vary considerably from state to state — including differences in drugs targeted, amounts required for mandatory sentences to apply, specific penalties, and the extent of judicial discretion (if any).[80] In Iowa, for example, a first time offender convicted of possession with intent to distribute 50 grams (1.75 ounces) of cocaine (which has a retail value of about $5,000)[81] would be sentenced to a minimum prison term of three and one-third years.[82] In Arkansas, conviction for exactly the same offense would bring a minimum prison sentence of 15 years.[83] Some states give judges significant leeway to impose a less severe penalty, while judicial discretion in other states is very narrowly circumscribed.  In Rhode Island, a judge who identifies “substantial and compelling circumstances” is free to set a shorter sentence than would otherwise be required.[84] North Carolina, in contrast, allows judicial discretion only in cases where the defendant has “provided substantial assistance in the identification, arrest or conviction of any accomplices, accessories, co-conspirators or principals.”[85]

An Expensive Policy
Prison spending is now the fastest growing category in state budgets, exceeding the rates of increase in state spending on health, welfare, and education.[86] The states spent approximately $40 billion to incarcerate drug offenders during the 1990s.  Spending accelerated sharply in the mid-1980s and has been climbing ever since.  During President Clinton’s first term, the states spent three times more to incarcerate drug offenders ($16 billion from 1993-1996) than they did over the course of President Reagan’s two terms ($5.2 billion from 1981-1988).[87]

High-level dealers generally hire others (known as “mules” or “couriers”) to hold and transport their drugs.  The increased risks associated with possession under mandatory minimum laws therefore fall almost entirely on the low-level employees of the drug distribution system, not on those who own or control the drugs.[92] Furthermore, kingpins who are arrested may be in a better position to avoid mandatory minimums by cooperating with prosecutors than are their underlings, whose peripheral involvement gives them little information with which to bargain for a more lenient sentence.[93] The wide net cast by stepped-up drug enforcement and mandatory minimum sentencing catches an abundance of small fish, but comparatively few big fish.

The extent to which low-level dealers bear the brunt of the arrest-and-incarcerate strategy is underscored by the soaring drug incarceration rate of black men.  Disadvantaged minorities (to whom the rewards of drug dealing can appear enormous compared to the legitimate job opportunities available) dominate the ranks of those in the drug trade who are most vulnerable to enforcement — the low-level dealers.  In 1997, black men 18 years and older accounted for half of all state drug prisoners, even though they comprised only 4 percent of the U.S. population. [94] By comparison, white men made up 30 percent of the U.S. population in 1997, but only 16 percent of state drug prisoners.[95] If current trends prevail, 1 in 50 black men in America will be serving time in state prison for a drug offense by the year 2010.[96]

Those responsible for implementing mandatory minimum drug laws often use what discretion they have to avoid applying sentencing they consider unjust.[97] Judges are predictably troubled by mandatory minimums.  Some prosecutors also find the mandatory minimum penalties excessive, and often avoid their imposition by filing charges for different, roughly comparable offenses not subject to mandatory minimum prison sentences.[98]

Putting more drug dealers behind bars was supposed to make illegal drugs harder to find, thereby reducing drug use and its related harms.  Incapacitating enough dealers and deterring others from selling drugs would, in theory, make drugs more scarce and more expensive.  But neither incapacitation nor deterrence has made a dent in the drug trade.[99] With a black market commodity such as drugs, locking up one distributor simply creates a job opening for someone else.[100] The openings created by incarcerating low-level street dealers are readily filled by replacements, either from within the same drug organization or from a competitor moving in on the market.  Even where replacement is not immediate, remaining dealers can pick up the slack in the local market by selling more drugs themselves.

The large and increasingly expensive increase in the number of drug offenders behind bars over the past two decades has failed to diminish drug dealing.  Retail prices for cocaine and heroin are now only about half their 1981 levels.[101] Crack, singled out for particularly tough sentencing in Federal law, is no more expensive at the retail level than powder cocaine.[102] Moreover, high school seniors report that crack is as easy to obtain now as it was in 1987 at the height of the crack epidemic, and that heroin is significantly easier to get now.[103] There were an estimated 319,000 more hardcore cocaine and heroin users in 2000 than there were in 1990. [104] Since 1986, notwithstanding the tough drug new laws, the drug-induced death rate nationwide has increased by 50 percent.[105]

“Twice, at least, I vetoed mandatory sentencing of drug offenders. When I left office the legislature immediately passed a law requiring mandatory incarceration for even first offenders. Since then we have more than doubled our percentage of people incarcerated. Moral of the story is that the system of incarcerating people that aren’t dangerous to society is a horrible mistake from every point of view.  Now the legislature has repealed mandatory minimums for first-time offenders and ordered a review of the effectiveness mandatory minimum drug sentencing overall.” Former Democratic Governor of North Dakota and GLC member George Sinner.

Public Opinion: Open to Alternatives to Incarceration
The proliferation of mandatory minimum drug laws in recent years reflects the assumption by many politicians that the public demands harsh punishment for drug offenders.  Although some state lawmakers may have misgivings about the wisdom of mandatory minimums, they may nonetheless support these laws as political insurance against being labeled “soft” on drugs and crime.  No politician wants to be on the wrong side of public opinion, and the prevailing view has been that the public overwhelmingly supports stringent enforcement and stiff prison sentences for drug offenders.  A careful reading of recent public opinion polls, however, shows that politicians have far more latitude to promote alternatives to incarceration than they may suppose.

Survey questions that explore a broad range of public opinion on crime and punishment illuminate instructive distinctions that the public makes,[106] for example, between violent and nonviolent offenders; high-level drug traffickers and  low-level dealers; and drug dealers vs. drug users or those charged with possession.  Not surprisingly, people are most concerned about repeat violent offenders and most willing to exact harsh retribution for such crimes.[107] But the public’s eagerness to put violent criminals behind bars does not translate into a general preference for more incarceration.  For example, when the Los Angeles Times asked Americans in 1994 what would be the most effective way to reduce crime, “mandatory life sentences for three-time violent felons” (22 percent) was the single most popular response (out of eight options).  But at the same time, the least popular response was “money for more state prisons” (3 percent).[108] Similarly, a 1996 Gallup poll found that 80 percent of Americans would vote for a proposition to give “major drug dealers life imprisonment without parole.”[109]  But when a February 2001 Pew Research Center poll asked whether a move “away from the idea of mandatory prison sentences for nonviolent drug offenders” was a “good thing” or a “bad thing,” 47 percent of Americans considered it good, compared to 45 percent who found it to be bad.[110]

This closely divided response is noteworthy in three respects.  First, by specifying “nonviolent drug offenders,” the survey narrows a category that otherwise would probably have been construed to include violent offenders.  Second, the virtual tie between those who favor and those who oppose a move away from mandatory minimums undermines the prevailing political assumption that the public strongly supports these laws.  Finally, the fact that even a slim plurality of the American people favors a move away from mandatory minimums is especially notable given that very few elected officials have had a bad word to say (publicly, at least) about mandatory minimums.  In this case, public opinion is ahead of the politicians.

The 2001 Pew survey also found little public support for arresting drug users.[111]  Thirty percent of Americans considered arresting drug users a very effective way to control drug use, down from 42 percent in 1989 and the lowest rating among the five options presented.  Over the same period, the proportion of Americans who believe that arresting drug users is not very effective has risen from 20 percent to 34 percent.  Moreover, only 4 percent of Americans rate arresting drug users as the single most effective way to curb drug use.  These findings reinforce the results of a May 2000 survey by Peter D. Hart Research Associates, which revealed little enthusiasm for incarcerating people simply for possessing drugs.[112]  Most Americans think that someone convicted of possessing illegal drugs should be fined and required to participate in drug treatment rather than sentenced to serve time in jail or prison.  Even in the case of cocaine possession, Americans prefer the penalty of a fine and treatment (53 percent) to a prison sentence (28 percent).

“While I was governor, one of the statistics that made an impression on me, was that regardless of why somebody got to prison, when they got there, probably the single best way to keep people from coming back was intensive drug and alcohol treatment programs.  There has not been corresponding attention paid to that. So you can debate putting a lot of folks in prison for drug offenses, but what does not seem to be at issue is that we are not doing much to make sure that they don’t go back.”  Former Democratic Governor of Mississippi and GLC member Ray Mabus.

The Pew poll reinforced Peter Hart’s 2000 finding that a majority of Americans  (60 percent) see drug use as more of public health problem than as a crime problem to be handled by the criminal justice system.  According to the Pew survey, 52 percent of Americans think that “all in all, drug use should be treated more like a disease,” while 35 percent think that it should be treated more like a crime.[113]

Some Promising Options
Sentencing large numbers of low-level drug offenders to stiff prison terms has proved to be an expensive failure.  Criminal justice professionals — including many prosecutors — find mandatory sentencing laws unduly harsh, and often seek to cushion defendants from the full impact of the law.  The available evidence suggests that drugs are at least as readily available today as they were 15 to 20 years ago, before the drug incarceration boom began in earnest.  The public — long assumed by politicians to want ever-harsher drug laws — is skeptical of incarceration as the dominant response to nonviolent, low-level drug offenders.  Many lawmakers, anticipating a budget squeeze for the first time in nearly a decade, are questioning whether drug incarceration is cost-effective.[114] Voters in some states, such as Arizona and California, have already passed ballot initiatives that divert nonviolent drug offenders away from prison into treatment.

Translating the incipient dissatisfaction with mandatory minimum sentencing into more humane and effective drug control alternatives will require stronger public support for positive options, not just skepticism about incarceration.  This principle is well evidenced in Connecticut, where the state waged an effective marketing campaign to gain public support for its Alternative to Incarceration Program (AIP), which was adopted in 1990 to slow the state’s costly prison boom.  AIP gives judges a wide array of options when sentencing offenders, including outpatient and residential drug treatment.  Program developers built in a highly visible community service component, and they successfully publicized estimated cost savings from the program.  Effective marketing and evidence of programmatic success led the state legislature in 1994 to continue the program indefinitely.[115]

Connecticut’s approach can be useful in other areas of the country, where public support for alternatives to incarceration and drug treatment lags.  Abundant research has shown drug treatment not only to be effective in reducing drug use and its related harms, but to be significantly more cost effective — dollar for dollar — than get-tough enforcement strategies such as mandatory minimums.[116] Nonetheless, treatment funding remains woefully inadequate.  Of the estimated five million hardcore drug users nationwide, nearly 60 percent do not receive treatment. [117]

“You have to create a marketing campaign for supporting prevention and treatment.  You need advocates for diversion programs, including sheriffs and police chiefs and prosecutors, standing up with people who run treatment programs saying this works and is a lot smarter financially and a lot more humane than what we are doing.  People will listen.”  Former Democratic Governor of Oregon and GLC member Neil Goldschmidt.

Treatment options must be considerably strengthened, particularly programs that deal primarily with indigent clients.  Private health insurers should be required to provide the same coverage for substance abuse as for other illnesses.  Treatment options within the criminal justice system should be expanded.  Drug courts and prison-based treatment with aftercare in the community reach only a small percentage of drug offenders.  Probation and parole should be strengthened.  More than four million Americans are on probation and parole, and at least half of them had a drug problem when arrested.  Nationwide, an estimated 60 percent of all cocaine is sold to persons under some kind of criminal justice supervision.[118] Requiring frequent drug tests of  drug-involved probationers and parolees could be an inducement for them to participate in treatment.

Although outright repeal of mandatory minimums may prove an uphill political battle, it may be feasible for states to pass sunset laws applying to all mandatory minimum drug sentencing provisions on the books.[119] After a period of  time, all such provisions would expire unless explicitly renewed in the law.  More substantively, drug sentencing policy could pursue a two track approach, reserving mandatory minimums for offenders who are considered the greatest danger to public safety, while allowing judges discretion in sentencing low-level offenders.[120]

Looking to the Future
In the national debate over drug control policy, the Federal government’s role understandably receives much attention.  Federal policies and funding decisions affect the citizens and governments of every state, and the high-profile interdiction and overseas drug control operations are an exclusively Federal responsibility.

Nevertheless, state and local governments play the dominant role in setting and implementing the array of prevention, treatment and enforcement policies that comprise our national response to illegal drugs.  State and local expenditures account for two-thirds of domestic drug control spending.  The states’ role is especially pronounced in the realm of drug enforcement.  For example, while the stiff Federal drug sentencing laws are well-known, state prisons actually hold nearly 80 percent of the 300,000 drug offenders behind bars nationwide.

The significant authority enjoyed by individual states to chart their own drug control strategies is likely to grow as the Federal government continues to devolve responsibility to the states for major social programs.  As “laboratories of democracy,” the states have considerable freedom to fashion innovative responses to the specific drug problems they face.  In doing so, each state can learn from the successes and failures of other states, and adapt strategies proven to work elsewhere to suit their own needs.

Every state faces steep social and economic costs due to drug abuse, so the stakes for making the right policy choices are high.  Critical Choices offers important examples of state-level innovations worthy of replication and suggests promising alternatives to the costly arrest-and-incarcerate strategy that has dominated the states’ approach to drug control since the early 1980s.

Promising Program: Connecticut’s Alternative to Incarceration Program
Connecticut’s Alternative to Incarceration Program (AIP) was launched in 1990 in response to the state’s skyrocketing prison construction expenditures; between 1985 and 1990, the state spent over $1 billion building prisons. AIP was designed to give judges an array of alternatives to incarceration when sentencing low-risk offenders. Judges can choose from a full continuum of services, including drug court and outpatient or residential substance abuse treatment.  Alternative programs include Youth Confinement Centers, where drug-involved offenders ages 16 to 21 receive substance abuse treatment; Project Green, which combines extensive community service in state parks with substance abuse treatment; the Women and Children Program, which allows female offenders to live with their children during their participation in a treatment program; and Alternative to Incarceration Centers, which provide supervision, substance abuse treatment, educational/vocational assistance, counseling and community service opportunities.  Overall, services are provided by over 100 private, nonprofit organizations throughout the state.

Community safety is considered each time an offender is recommended for a program, and offenders are sentenced to programs depending on the circumstances and the severity of their crimes. As of 2000, approximately 165,000 offenders had been processed through AIP. Offenders successfully completing AIP, which can last from four months to two years, do not serve prison time. However, offenders who are dismissed from the program for any reason must complete their prison sentence. Based on the positive results of the program, in 1994, the state legislature unanimously passed a bill to continue AIP indefinitely.

In FY 2000, AIP’s budget was $55 million, $30 million of which is for adult programs and $25 million for juveniles. All funds are provided by the state.  The average annual cost for an offender in the program is $7,000 per year, versus $25,000 for incarceration. In 1998 it was estimated that it would have cost $525 million in prison construction costs and an additional $94 million in operating costs to imprison the 150,000 offenders in the AIP program.

A three-year longitudinal study of AIP by the Justice Education Center, Inc. completed in 1996, found that program participants were less likely to commit crimes than offenders who had been in prison. AIP graduates had three arrests for every eight arrests in the comparison group, and offenders in the comparison group were rearrested for drug offenses at three times the rate of program clients. For more information on AIP, contact the Connecticut Court Support Services Division, 860-563-1332.

Promising Program: Delaware’s Comprehensive Drug Treatment Program for  Prisoners
Alcohol- and other drug-addicted offenders in four Delaware prisons have access to the KEY/CREST program, where they receive substance abuse treatment in a therapeutic community setting while in prison, followed by work-release and aftercare services in the community. The KEY program, developed in 1988, provides treatment to inmates in the last 12 to 18 months of their incarceration. Treatment includes individual counseling, group therapy, educational seminars, HIV education, family and parenting education, and 12-step programs. Clients are also encouraged to participate in GED and vocational programs offered by the prison.  To increase participation in the programs, Delaware prisons sanction offenders who choose not to participate and offer incentives to those who do.  Offenders who are identified as needing treatment, but are unwilling to participate, are not considered for early release.

Upon leaving the correctional facilities, KEY participants enter one of three CREST Outreach Centers, which operate work-release programs based on a therapeutic community model. Developed in 1992, CREST is designed to help inmates make a smooth transition into society. Residents receive six months of intensive substance abuse treatment during which they learn job skills, visit their families and communities, attend AA meetings, work full time in the community, and take part in community service activities as a form of restitution. Upon completing CREST, clients go through a six-month aftercare program during which they return to CREST weekly for group sessions, drug testing, and counseling.

KEY/CREST programs are funded through the Delaware Department of Corrections.  The programs receive approximately $4 million per year from the state, funding treatment for approximately 13,000 inmates yearly.  It is estimated that treatment costs are $7.50-$8.00 per day for each offender in the program

A 1996 18-month follow-up study conducted by researchers at the University of Delaware found that inmates who participated in Key, Crest and aftercare were significantly more likely to remain drug free than those not treated (76 percent versus 19 percent). The effects were still visible after three years, with one-third of treated offenders remaining drug-free, compared to 5 percent of the comparison group. In addition, three years after release, 69 percent of inmates completing the programs remained arrest-free compared to 29 percent of the control group. For more information, contact the Delaware Department of Corrections, 302-739-5601.