After a quarter century of toughness toward criminals, a movement is growing nationwide to emphasize treatment for nonviolent drug offenders and other forms of alternative sentencing rather than simply lock them up.
The move is being driven by the need to deal with the social and economic costs of burgeoning prison populations, and the belief that the get-tough approach hasn't helped alleviate the nation's core drug problem.
Significantly, the main impetus for the change isn't coming from politicians, many of whom remain wary of doing anything that will make them look soft on crime.
Instead, it is being spearheaded by a wide range of social, religious, and judicial leaders who believe that treatment and alternative sentencing not only cost less than prison, but are more effective in giving people back productive lives.
"It makes no sense to simply keep locking people up," says Bridget Brennan, New York's special narcotics prosecutor. "You have to address the demand side as well."
Already, the movement may be having some effect. California officials credit treatment and alternative-sentencing programs with contributing to the first drop in the state's prison population in more than two decades. The rate of increase in inmate populations is slowing in other states as well, including New York.
Most of the changes proposed or under way in the criminal-justice system are the result of popular referendums or crusading local officials taking on reform - in essence, doing end runs around state and federal legislative bodies.
In November, voters in California and Massachusetts will be asked to follow Arizona's lead and approve referendums that call for mandatory treatment and alternative sentencing in lieu of tough mandatory minimum sentences for drug offenders.
Last month, Judith Kaye, chief judge of New York's Court of Appeals, ordered a systematic overhaul of the state's entire court system and required that nonviolent drug-addicted offenders be given the choice of treatment or prison.
In the past two decades, the state has seen a 400 percent increase in the number of narcotics cases before the courts. Judge Kaye hopes eventually to divert as many as 10,000 defendants into mandatory treatment programs, saving taxpayers more than $500 million a year.
"It's an eye-opening statistic that approximately 75 percent of all defendants in New York City test positive for drugs at the time of their arrest," says Kaye.
But critics have noted that Kaye's proposal, like many of the experiments under way nationwide, will have a limited impact. First, because she needs the cooperation of prosecutors who make the ultimate decision about who can be diverted into treatment. But also because the reforms will not apply to people sentenced under the state's mandatory minimum drug laws, which would take an act of the legislature to change.
Returning power to the judges
"What needs to happen for there to really be a different way to approach the war on drugs is for the discretion to be returned to the hands of the judges," says Robert Gangi of the Correctional Association of New York. "Then you'd get more of a public-health approach to the drug problem than a law-enforcement one."
Still, Mr. Gangi and other critics of the nation's criminal-justice policy applaud Kaye's move, saying it sends a powerful signal to have the state's top judge on the side of reform.
"It reflects a growing recognition at the state and local levels as to the ineffectiveness of the approach we've taken to the drug issue in the past 20-plus years," says Michael Massing, author of "The Fix," a comprehensive look at the history of the nation's current drug policy.
"It's very significant for a well-respected person in her position to come out and say, 'Look, this policy isn't getting the job done.' " Kaye is part of a small but growing chorus of bipartisan voices calling for reform ranging from New Mexico's Republican governor to Nobel prizewinning economist Milton Friedman.
Indeed, a group called Religious Leaders for a More Just and Compassionate Drug Policy has made reforming the drug laws a top priority. It was founded by the Rev. Howard Moody, who came to conclude that the so-called war on drugs disproportionately targets people of color and has done more harm in low-income neighborhoods than good.
"The drug war is unjust, immoral, and unwinnable," he says. "I believe we'll never be able to stop it and change the racist laws unless religious institutions got involved and gave religious dimensions to the opposition as well."
Not all religious leaders share that opinion. For many conservative clergy, the long mandatory sentences meted out for drug offenses are just punishment for the crime. And while a growing number of prosecutors are supportive of treatment and sentencing alternatives, many also remain staunch supporters of current policy.
Sketchy history of success
Conservatives point out that in the '60s and '70s, drug treatment was used as an alternative to prison and rarely proved effective. Ms. Brennan in New York says she believes that was because some judges and prosecutors at the time used treatment more as a "calendar-clearing device" than a serious alternative to jail.
"So there was a great deal of skepticism about it - it probably took another 25 years before prosecutors and law enforcement [started] tiptoeing back into it," she says. "But we're always looking to do things better and smarter."
Brennan says that's why the programs now are quite specific about what kinds of defendants they'll accept for treatment and are extremely stringent in enforcing all the rules.
But even with such changes, the vast preponderance of federal and state dollars are still spent on arresting and locking up drug offenders in prisons. And to cope with that, the prison building boom continues.
"There's still a ways to go," says Steven Belenko, fellow at the National Center on Addiction and Substance Abuse at Columbia University in New York. "But we may have turned a corner in terms of at least being able to debate these things in the open where they can have serious consideration."
(c) Copyright 2000. The Christian Science Publishing Society