Imprisoners' Dilemma

To understand our nation's frustrating war on drugs, consider a street corner on Avenue K just outside my district, a minor terminus for Brooklyn's illegal drug trade. As a New York State Assemblyman, I have often fielded constituent complaints about that corner and alerted the local police precinct captain. The police have usually responded with a sweep of the neighborhood, but the sweeps have rarely done any good. A day--sometimes hours--after police make their arrests, the drug traffic returns to normal. I know, because my constituents call to tell me "they let the dealers out again."

I used to think my constituents were right. That is, I used to think the courts were letting the street dealers off the hook But in recent years, I realized that the courts were cracking down: those same dealers did not usually return. Instead, when the police arrested and locked away street-level dealers, others came forward to take their place. There seems to be an infinite supply of street-level drug dealers--mostly addicts who get guarantees of enough drugs for themselves from the mid-level dealers who recruit them.

This is particularly frustrating given the time and resources we now devote to locking up street-level offenders. Mandatory sentencing in New York means second offense street dealers get prison terms of at least two years (the law allows probation after a first offense). We spend millions catching and then imprisoning people who are primarily addicts, and then millions more building new prisons. New York now spends well over a billion dollars a year on the 64,000 inmates in its state prisons.

The story is similar around the country. In 1992, I directed a study of the nation's prisons. It showed clearly that even though we were locking up record numbers of addicts for dealing drugs on the streets, the overall drug trade was continuing essentially unabated. The study concluded that our increased reliance on prisons--a strategy that has yet to be rejected by most local and national policymakers--has utterly failed to stem the increase in drug abuse.

It is time to change our strategy. We need to get away from mandatory sentencing and to stop imprisoning low-level drug dealers. We should narrow our target population for prosecution and incarceration to mid-level dealers, thus freeing prison cells for criminals whose incarceration makes a difference. The savings could then go toward human infrastructure investments that might reduce the allure of drugs and prevent people from entering the drug trade in the first place.


On July 28, 1992, the same morning former Attorney General William Barr held a much-publicized press conference calling for more prison expansion, I was reporting to the criminal justice committee of the National Conference of State Legislatures on the results of a state-by-state survey I conducted under its auspices. That survey showed that states generally quadrupled their prison populations since 1970, (based on figures from the 24 states that provided estimates of their addict populations) but states still had, on average, eighteen times as many addicts as inmates. New York had 12,000 inmates in 1970, 64,000 today, and 600,000 addicts. Florida had 46,000 inmates but 500,000 addicts; Nevada, 5,800 inmates and 120,000 addicts. Only two states had addict populations as small as 2.9 times their prison populations.

Students of criminal justice like Barr and Princeton political scientist John DiIulio continue to encourage the construction of more prisons. DiIulio, for one, argues that the average cost to society of a year of criminal activity, $27,600, exceeds the average cost of incarcerating that criminal for the same year, $25,000, so it pays to increase prison capacity. (See, for example, John Dilulio's "Cracking Down" in this issue, p. 116.)

But DiIulio's figures do not reflect the actual composition of the prison inmate population. Although the overwhelming majority of inmates in New York have substance abuse histories, not all of them were also burglars, car thieves, muggers, or perpetrators of more serious crimes. In fact, a 1991 study demonstrated that 34 percent of New York's state inmates were not arrested for any crimes other than sale and possession of drugs. In 1990, criminals convicted of nothing but sale and possession accounted for nearly half of the state's new inmates, according to New York State Corrections Commissioner Thomas Coughlin.

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While a handful of the sale-and-possession group fit the drug dealer stereotype--gold chains, expensive private attorneys, and flashy cars--the vast majority do not. Instead, those now incarcerated are mostly addicts recruited to sell drugs in return for guarantees that their own addiction needs will be met. Typically, low-level addict-sellers plead guilty after their first felony arrest for the sale of crack cocaine and are sentenced to probation. With New York City's enormous probation caseloads, supervision is virtually unavailable, and second felony arrests, again for selling crack, usually follow on the heels of the first, a week or two later. With a second felony conviction, New York's law gives judges no discretion: offenders must be sentenced to a term in state prison, usually resulting in stays of more than two years.

New York City Mayor David Dinkins and other officials have long questioned the wisdom of the street sweeps, and since 1990, the NYC Police Department has been moving away from an emphasis on street-level arrests. But because the backlog of arrests from the pre-1990 sweeps continues to feed inmates into New York State prisons, those prisons are still feeling the pressure created by the previous policy. And our survey indicates that New York's experience is not unique. Of the 28 states that supplied us with estimates of the percentage of their inmate populations confined for drug offenses alone, only 6 reported less than 10 percent. Arizona and Nevada, the 2 states with the largest percentage increases in overall prison population in that period (both over 800 percent), reported drugs-only inmates at 22 percent and 36 percent respectively.

There were exceptions. Montana, Oklahoma, and Maine, with prison population increases from 1970 to 1990 of 476 percent, 252 percent, and 233 percent, reported drugs-only percentages of 8 percent, 8 percent, and 5 percent, respectively. Montana and Maine, however, have small prison populations (1,441 and 1,723), so idiosyncratic factors could be responsible for substantial departures from the norm. North Dakota and West Virginia also had low addict-only populations, but they were the two states with the smallest percentage increases in overall prison population between 1970 and 1990.

In any case, the big patterns hold. Almost every state experienced huge inmate population increases in the past two decades, and most of them continue to incarcerate substantial percentages of their inmates for drug offenses alone. On average, based on the 28 states that supplied this information, roughly 20 percent of inmates are incarcerated for drug offenses alone.

Of course, advocates of mandatory sentencing and more prison building maintain that were it not for all this incarceration, the drug trade would have been still larger. This theory, however, ignores the possibility that there exists a finite number of low-level job openings in the illegal drug business, and incarcerating street-level dealers simply enables new addicts to fill those positions. Police officers have told me it may take anywhere from one month to six months for a mid-level drug entrepreneur to replace one arrested and taken off the streets, but only two minutes for a mid-level entrepeneur to recruit a new addict-seller.


If the increased incarceration serves merely to lock up street-level addicts--with no apparent effect on overall drug traffic--why does the strategy remain so popular? While many people make many good arguments for pursuing this campaign, my own experience as a New York state legislator suggests less civic-minded motives are often at work, as well.

When I was appointed chair of the Assembly's Committee on Correction in 1987, I was bombarded with letters, telegrams, and resolutions seeking prisons from towns and villages throughout northern and western New York. Although most suburbanites recoil at the thought of having a prison anywhere near their neighborhood, for many rural residents struggling to survive economic restructuring the prospect of prison construction in nearby towns holds out the hope of economic deliverance. Prisons offer jobs within commuting distance--30 miles can be traversed very quickly in rural areas--but far enough from families, neighborhoods, and schools to maintain security. Of course, rehabilitation works better when contacts with family and potential employers are available nearby; prisons would work better in the densely populated urban communities from whence most prisoners hail. But politically, it makes plenty of sense to build prisons--and lots of them--in rural areas.

If that analysis sounds far-fetched, consider New York's recent history. The state's 52 rural and generally Republican counties, with 34 percent of the state's population, house 91 percent of the state's prison inmates. Meanwhile, eight urban and mostly Democratic counties that comprise 51.7 percent of New York's population--New York, Kings, Bronx, Queens, Richmond, Erie, Albany, and Monroe--house a mere 9 percent of the state's inmates. The two huge counties that make up suburban Long Island house 14.5 percent of the state's population and no state inmates at all.

Although only 57 percent of the New York State Senate membership is Republican, districts represented by Republicans house 89 percent of the state's inmates, employ 89 percent of state corrections staff, and absorb 89 percent of state corrections dollars. The contrast is even sharper by Assembly district. In 1992, only 36 percent of the membership was Republican, but districts represented by Republicans housed 83 percent of the inmates, employed 81 percent of the staff, and absorbed 81 percent of the dollars.

This pattern defies the logic of rehabilitation. Sound penology suggests building prisons in or near inmates' home communities, to increase access to family, neighbors and potential employers. In addition, transportation costs and access to medical facilities in an era of prison epidemics of AIDS and tuberculosis further weakens budgetary arguments for choosing rural areas for prison construction. Finally, housing mostly black and Hispanic inmates (New York State's inmate population is 80 percent black and Hispanic) in areas of the state with overwhelmingly white rural populations often adds racial and ethnic overtones to the already strained relationship between inmates and correction officers.

Of course, the parochial economic interests that helped drive the prison construction boom would not have prevailed without public acceptance of the lock-'em-up rhetoric. For a long time, it seemed self-evident that incarcerating those who engaged in criminal behavior, including the sale of drugs, would ameliorate the problem by disabling the ones we caught and deterring the others. But the scale of the addiction problem, with ten times as many addicts as we could conceivably incarcerate, is proving an insurmountable obstacle to that strategy's success.

We no longer have enough money to keep wasting it this way. Even Barr and DiIulio do not seriously propose that we build enough prisons to incarcerate every addict who presents a plausible candidacy for recruitment as a low-level drug dealer. Already prison costs are straining our economy, with $20.1 billion spent on building and running them in 1991 for 1.1 million inmates (compared with $22.9 billion spent on Aid to Families With Dependent Children in 1991 for 13.5 million people). We can hardly afford to multiply our spending on prisons by a factor of ten or so to meet the goal that, by logical extension, the present policy dictates.


Today some of New York's senior federal judges will not hear drug cases because the federal government's mandatory sentencing guidelines have deprived them of judicial discretion. More recently, Attorney General Janet Reno has announced that she intends to reconsider the wisdom of these guidelines. Such scrutiny is long overdue.

Without mandatory minima, judges could target criminal justice system and corrections resources at the drug trade's most vulnerable point, the middle-level dealer, instead of its least vulnerable point, the street-level addict and seller. Legislation I have urged for years--against the opposition of the New York Senate--would allow judges the option of directing addict-sellers to drug abuse treatment instead of jail, while sending the drug trade entrepreneurs to prison for substantially longer periods than the present law allows.

Such a strategy would allow states to incarcerate more violent offenders in prison cells now wasted on low-level drug offenders. In 1992, Tennessee followed this course, halving sentences for low-level cocaine sales while increasing sentences for sex offenders, whose high recidivism rates mean that society's benefit from their removal is clear and straightforward. At least ten other states are considering similar moves, in part because the federal courts have mandated they cut their prison populations to alleviate overcrowding.

Granted, treatment costs money, too. But in New York, at least, the most expensive form of residential treatment under state contract costs about $17,000 a year, and usually takes only one year. Many good programs cost much less. A prison stay, meanwhile, costs at least $25,000 a year and generally takes at least two years. (The alternative to long-term imprisonment, so-called "shock incarceration," has proven only marginally successful). Nobody suggests that drug treatment will always work. But it will certainly work as often as imprisonment does--and for a lot less money.

That's certainly something to consider, given the most ironic consequence of massive prison expansion: namely, the fact that we have chosen an odd subset of the poor for guaranteed housing, medical care, and sustenance, not to mention education, drug abuse treatment, and job training. If we don't think we can continue to deprive large percentages of the hard-working and worthy poor of these benefits while providing them to those who are by definition law breakers, we might consider shifting our budgetary priorities away from prisons and toward other human investments. But if our inability to provide treatment for all addicts and questions about the efficacy of such treatment are the excuses for continuing to incarcerate them, then let us face the fact that--at least from the standpoint of cost--even ignoring them may be better than what we are doing now.

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