A Get-Tough Policy That Failed

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But even some older, repeat offenders are getting punishments that seem ridiculously disproportionate to their crimes. Consider Douglas Gray, a husband, father, Vietnam veteran and owner of a roofing business who bought a pound of marijuana in an Alabama motel for $900 several years ago. The seller turned out to be a police informant, a felon fresh from prison whom cops paid $100 to do the deal. Because Gray had been arrested for several petty crimes 13 years earlier--crimes that didn't even carry a prison sentence--he fell under the state's "habitual offender" statutes. He got life without parole.

The good news is that a consensus is emerging among judges (including Reagan-appointee Chief Justice William Rehnquist), law enforcers and crime experts--among them many conservatives who once supported the laws--that mandatory minimums are foolish. The Supreme Court last week declined to hear a case challenging the California three-strikes law, but four Justices expressed concern about the law's effect and seemed to invite other challenges. A few brave politicians have gingerly suggested that the laws may be something we should rethink. Some states are starting to backtrack on tough sentencing laws:

--MICHIGAN Last February former Republican Governor William Milliken called the "650 Lifer Law" his biggest mistake. The 1978 law mandated a life-without-parole term for possession with intent to deliver at least 650 g (about 1.4 lbs.) of heroin or cocaine. But though the law was intended to net big fish, few major dealers got hit. In fact, 86% of the "650 lifers" had never done time; 70% were poor. "A lot of them were young people who made very stupid mistakes but shouldn't have to pay for it for the rest of their lives," says state representative Barbara Dobb, the Republican who began a reform effort. In August, G.O.P. Governor John Engler signed a law allowing 650 lifers to be paroled after 15 years.

--UTAH In March 1995, Republican senate president Lane Beattie, concerned about the excesses of mandatory minimums, introduced a bill to eliminate them in certain cases. Worried about the political fallout, he did so near midnight on the last day of the legislative session. The bill passed quietly, without debate, but victims' groups noticed. Though a public outcry followed, the G.O.P. Governor said he agreed with the bill and refused to veto it.

--GEORGIA In the final minutes of the 1996 legislative session, state lawmakers nixed mandatory life sentences for second-time drug offenders. State statistics showed that four-fifths of those serving life had hawked less than $50 in narcotics. Even state prosecutors backed the change.

--NEW YORK John Dunne, a former Republican legislator who helped devise the Rockefeller Drug Laws, the mandatory-sentencing legislation promulgated in the 1970s by Governor Nelson Rockefeller, is lobbying to end them. "This was a good idea 25 years ago, but the sad experience is that it has not had an effect," says Dunne, who also served in the Bush Administration. "Behind closed doors, virtually everyone will say these drug laws are not working, but they cannot say that publicly."

Certainly no one in Washington is saying it publicly. The House Judiciary Committee didn't even hold hearings on the bill that created the current minimums, which coasted to victory just in time for the 1986 midterm elections. Congress and the President last year added a new mandatory minimum to the books: five years for 5 g of crystal meth, the crack of the '90s. Mandatory minimums remain political beasts, and it would probably take Nixon-goes-to-China leadership from a Republican to turn public opinion against them. Either that or more Jean Valjeans serving 10-year sentences for stealing steaks.