Clinton's tough prison watch

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Marsha Cunningham is doing big time in federal prison because she lived with a drug dealer.

There was no evidence that the pretty, young former temp agency worker used or sold narcotics. But police found cocaine in the Dallas apartment she shared with her boyfriend, who was also caught with dope while driving her car.

That was enough to send her away for 15 years under federal mandatory minimum sentencing laws, even though she had no prior convictions.

Recommended: Four ways to relieve overcrowded prisons

Ms. Cunningham's case and others compiled by the group Families Against Mandatory Minimums are examples of America's excessive use of incarceration. Much of that excess was driven by anticrime measures signed by President Clinton.

According to the Justice Policy Institute, a Washington-based organization that favors alternatives to harsh prison sentences, "tough on crime" policies passed during the Clinton years have resulted in the largest increases in federal and state prison populations of any presidency in American history.

There's a particularly ironic twist to a story that already casts the United States as one of history's great incarcerators: Mr. Clinton's most loyal supporters - black people - are those who have suffered most from the incarceration policies he approved.

Certainly, it is the states that incarcerate most of America's prisoners. But state programs are directly affected by Washington action, such as a law Clinton signed that provided federal money for state prison construction if those states implemented policies resulting in longer sentences. Clinton effectively nullified crime as an issue the Republicans could use against Democrats.

President Bush has an opportunity to make a move like President Nixon's opening to Communist China, a move that went against the orthodoxy of his party. He can pursue policies that could bring more sanity to the criminal-justice system. He should fulfill a campaign promise to provide an additional $1 billion for expanded local drug treatment programs. Just before the inauguration, he also acknowledged that mandatory sentences might not heal drug addicts or be the best use of prison space.

As for Clinton, there's no question he advanced the interests of blacks in numerous ways during his presidency, including a push for crime-prevention programs and alternative sentencing measures such as drug courts. When he announced he would locate his office in Harlem, African-Americans there welcomed him like returning kin.

But in the rush to gush over him, African- Americans too easily overlook the increase in imprisonment of blacks on his watch. From 1992 to 1999, the incarceration rate per 100,000 adult African-Americans jumped more than 28 percent, to 3,620, according to the Justice Policy Institute. Overall, the incarcerated population is 48 percent black - almost four times greater than the African-American portion of the general population.

To be sure, many criminals, no matter what their color, deserve to be locked up. Incarceration certainly is one element in declining crime rates. No one wants effective law enforcement more than residents of high-crime neighborhoods. That law enforcement, however, must be fair and sensible to be credible.

Racial profiling is one practice that contributes to the abundance of blackness behind bars. Traffic stops based on race lead to more searches based on race, which result in the discovery of more contraband, which leads to more arrests and incarcerations.

A report last year by the Leadership Conference on Civil Rights summed it up: "Unequal treatment of minorities characterizes every stage of the process ... by racially skewed charging and plea-bargaining decisions of prosecutors; by discriminatory sentencing practices; and by the failure of judges, elected officials, and other criminal-justice policymakers to redress the inequities that become more glaring every day."

The disparity in sentencing between powder and crack-cocaine offenses demonstrates the problem. Federal punishment for distribution of crack is 100 times greater than the punishment for powder cocaine, though they are essentially the same drug. Conviction for distributing 5 grams of crack brings a mandatory five-year sentence. It takes 500 grams of powder coke to trigger the same term.

Though between one-half and two-thirds of crack users are white or Hispanic, according to the Washington-based Sentencing Project, the US Sentencing Commission says that in 1999, 84.7 percent of federal crack defendants were black, 8.9 percent were Hispanic, and 5.4 percent were white.

Clinton could have taken the lead in equalizing the penalties, as the commission proposed in 1995. Despite pleadings from African-American leaders, he approved Congress's rejection of the recommendation.

In his final day as president, Clinton did grant commutations to about 20 prisoners serving mandatory minimum drug sentences. But instead of wrecking his legacy by dealing questionable pardons to characters like Marc Rich, Clinton should have shown clemency to far more of those trapped by unfair sentences. And when he told Rolling Stone magazine in October that "we really need an examination of our entire prison policy," he was right. But it was much too little, much too late.

Joe Davidson does commentaries on National Public Radio's 'Morning Edition.'

(c) Copyright 2001. The Christian Science Monitor

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