Attacking Judges, Not Drugs

One of every 138 U.S. residents is now serving time. Get-tough policies enacted in the 1980s and 1990s -- like three-strikes laws in California and other states -- have swelled the jail and prison inmate population to a record 2.1 million, according a new federal report.

Many criminal justice experts believe that longer prison terms and tougher parole rules helped push down the crime rate over the last decade, in part by keeping repeat offenders locked up. So a bill by Rep. F. James Sensenbrenner Jr. (R-Wis.) upping already harsh sentences for low-level drug offenders can only be a good thing, right? Wrong.

Federal law already requires judges to impose a five-year term on even first-time offenders in cases involving most illegal drugs, including cocaine and methamphetamine. Sensenbrenner’s bill would add new crimes and more prison time to a sentencing scheme that is already extraordinarily punitive -- and in many cases it targets first-time offenders, not the violent three-strikers whose incarceration may have helped to lower the crime rate. The cynically titled Safe Access to Drug Treatment and Child Protection Act of 2005 does little to push drug treatment but could do much to harm children. It would also make a bad sentencing system worse and punish judges who have rightly criticized its many inequities.

The bill, now before the House Judiciary Committee, would require five-year terms for the sale or distribution of every illegal drug, no matter how small the amount or the penalty under state law. Share a line of cocaine with a friend or give away a single tab of Ecstasy and you may join the 900 or so new inmates marched behind bars each week in recent years. Offenders with a prior conviction on almost any drug charge would automatically get 10 years. Adults who sold to minors could get life.

What about drug treatment? The bill, HR 1528, makes it a crime to sell or distribute drugs within 1,000 feet of a drug treatment facility. It also sets mandatory terms for offenses committed near schools, colleges, video arcades, day-care centers and libraries. That’s the “child protection” part.

The measure is just as likely to pull families apart. Parents who see but don’t report drug use in the home -- even if their child wasn’t present -- would get a mandatory term. So if Dad watches Mom smoke marijuana in their living room, they both head to prison, and Junior goes to foster care. Drug treatment would surely seem the smarter solution for such a family.

To oppose this bill is hardly to condone drug use. It is to acknowledge that drug laws have already reached the point of diminishing returns. Drug offenders already are serving longer sentences than felons convicted on federal manslaughter or assault charges. Taxpayers are on the hook for prison costs that are spiraling out of control, and judges of all political stripes have slammed mandatory drug sentences as overkill.

Sensenbrenner and his Republican allies know all this. But furious over recent Supreme Court decisions returning to judges small shreds of discretion in applying these draconian laws, they are bent on reversing those gains. Instead of cutting drug use, the real goal of this bill is to score political points in a larger war against the judiciary.