Mandatory mayhem

Many biblical scholars have argued that the Old Testament's famous "an eye for an eye" codes created proportionate penalties for crimes: They ruled out a killing for an eye, or (as in some Islamic law) a hand for a piece of bread.

Has our desire to wage war on drugs created disproportionate penalties? Here are two examples:

JeDonna Young, who just turned 23, had a young son and an older boyfriend who owned multiple businesses. She also had a clean criminal record, until the day in 1978 when her boyfriend asked for a ride. She loaded his bags in her car and drove only a few blocks before the police stopped them, jumped out with guns, and found her boyfriend's drugs in the bags. Because of Michigan's mandatory minimum drug sentencing, Young's sentence was prison for life. When Michigan reformed its laws, Young was able to leave prison after only 20 years, but her son had grown up without his mother.

Debi Campbell's crime was substantial: At 37 and homeless in California after escaping an abusive husband, she dealt drugs with the goal of getting enough money to get two of her four children back from foster care. Her mandatory minimum sentence: 19 years in prison. "I broke the law, so I knew I should be punished," Campbell says, but her sentence also punished her family. Her younger daughters flitted among foster homes and relatives. Now, one is in jail, while the other has gone through a drug rehab program.

Mandatory sentencing, part of the 1980s conservative prison reform effort to be "tough on crime," was meant to lock up drug kingpins profiting from the crack epidemic of the 1980s. In the process, the mandatory minimum for drug offenders often became five, 10, or more years, based on the type and weight of the drug and any prior offences. Those who could offer substantial information about higher-ups involved in the crime could sometimes earn reduced sentences.

In recent years many judges and evangelicals have begun to criticize mandatory minimum sentencing. "One of the worst things that happened to the justice system in this country was the notion that discretion should be taken away from judges in terms of sentencing," says a retired New Orleans judge, Calvin Johnson, a 34-year court veteran. "We have a penal system full of individuals arguably who either shouldn't be there at all, or, if at all, should be there for much shorter periods of time. . . . You have the financial consequences that society pays, but then you have the human toll on both that individual and that individual's family."

Pat Nolan, head of Justice Fellowship (JF), Prison Fellowship's program that examines criminal justice, says mandatory sentences aren't working: "We're not safer, it's bursting state budgets, and we're not changing behavior." Nolan argues for alternatives to incarceration such as home detention, supervised probation, community supervision, and treatment programs, with prison cells reserved for the violent and dangerous.

Detectives Andrea and Clark Luntsford of the Boone County, Mo., Sheriff's Department have similar suggestions. Prisoners who should be locked up, Andrea Luntsford says, are those who "don't believe that what they're doing is wrong, or they don't want to stop."

Clark Luntsford, who works in the narcotics division, argues that those who are not a danger to others should not be in prison: "You send a first-time, nonviolent offender to prison and all he gets is an education on how to be worse."

Of the 2.3 million men and women now in American prisons and jails, more than 60 percent are nonviolent offenders, and almost half of those are nonviolent drug offenders. The United States Sentencing Commission, an independent agency of the judicial branch in Washington, has been reviewing drug sentencing procedures and may soon propose less severe penalties. But two evangelicals who have visited hundreds of prisons, Chuck Colson and Mike Huckabee, are proposing more radical alternatives (see sidebar).

One reason for their proposals is that tens of thousands of parents are among the more than 500,000 nonviolent drug offenders. Buddy Osborn, who started a boxing ministry for kids in Philadelphia after serving five years in a federal penitentiary, says, "When the father, the breadwinner, is no longer around, the family is lost." A wife or girlfriend left behind finds it hard to hold down a job with two or three kids. Some turn to faster ways of making money, such as selling drugs.

Texas has been one of several states to reform its criminal justice system by emphasizing drug treatment. "When those reforms went into effect, for the first time in history any inmate who needed it got into drug treatment the next day," JF's Nolan says. Instead of building more prisons, Texas emphasized drug courts-special dockets for nonviolent substance abusers-and redirected the money saved into community treatment for the mentally ill and low-level drug addicts. The reform has not, as some may have feared, led to more criminal behavior: Crime rates have fallen in Texas since the reform went into effect, mirroring a nationwide drop in crime.

JF favors expanding drug courts and changing mandatory minimum laws to remove arbitrary disparity and to make sentences fit the crimes. JF also promotes returning discretion to judges to allow them to issue sentences not involving incarceration, such as supervised probation. Prison Fellowship, of course, has long been known for its advocacy of mentoring programs that improve the likelihood of successful re-entry to society.

When Debi Campbell was finally released from prison in January 2010, she flew her youngest daughter, then 23, from California to a drug rehab center in Maryland. They reunited for the first time on Campbell's birthday, March 17. Now 56, Campbell thinks of another daughter in jail in California.

She lives in her Virginia home with her youngest daughter and 5-month-old granddaughter. She says a homeless teenager finishing high school is joining them: "If there was somebody out there who could have done that for my girls, maybe they wouldn't have ended up [in trouble]."

-Catherine Pearson is a journalist living in Missouri

'We overuse prisons'

I asked Prison Fellowship founder Chuck Colson and former Arkansas Governor Mike Huckabee to offer their views. First, Colson's comments:

When you were in prison during the 1970s, so were 200,000 other Americans. Now the number is 2.3 million. . . . We overuse prisons. We could put many people in community correction systems across the country and hugely reduce the cost of prison, and the amount of people going to prison.

Should possession of an ounce of marijuana be a crime? What's a crime and what's punishable by prison are two different things. The law is a moral teacher, so when the law says, this is wrong, there should be punishment. But for an ounce of marijuana to send someone to prison is a gross overreach-it's preposterous.

What about mandatory minimum sentencing? Mandatory minimum sentences are preposterous. Three-time-loser statutes are an absolute catastrophe: Somebody gets three offenses, the third offense is stealing a pizza, and they get prison for life! You think it's a deterrent to crime: It is not! People are not rational calculators. They act on the basis of emotions, of passions-often drug- and alcohol-induced-so the whole notion that we can deter people by longer prison sentences and tougher prison sentences is fallacious.

Conservatives often say we should build more prisons, but you say that's a big government program. . . . I don't call it conservative. [Modern] Prisons started as a Quaker reform: The idea was that if we put criminals in isolation where they could repent before God, they would be transformed and then come out. It went badly right from the beginning.

Now, Mike Huckabee:

What do you think about mandatory sentencing, "three strikes, you're out" laws, and calls to decriminalize marijuana? I'm not for legalizing marijuana and other drugs-that would not help our culture and society become stronger and better-but we have not been very successful in incarcerating our way out of the drug problem. We've created a bigger problem. Our prisons are teeming with people who don't need to be incarcerated as full-time inmates.

What's the alternative? In Arkansas we created drug courts for nonviolent drug offenders. They gave nonviolent drug offenders an alternative to prison: community service and drug rehab. Drug people need to go to rehab, which costs the state $4 to $5 per day, as opposed to prison, which was close to $50 a day.

What about people convicted three times? The most popular thing you can say in a civic club is, "Three strikes, you're out. By golly, when they commit their third crime, they're going to the slammer for life." That's a great campaign speech. It's really stupid public policy, and let me explain why. First of all, you can't afford it. It is very expensive to incarcerate someone. Second, they really need to understand that behavior has consequences.

Mandatory minimum sentences don't teach that? Tell a person, "You're going to prison. If in the next 10 years you get an education, learn a skill, and behave, you'll serve exactly 10 years. If you're belligerent, you don't go to classes, you spit on the guards, you'll serve exactly 10 years." You'll get the most incorrigible behavior imaginable.

What about those whose behavior makes it necessary for them to stay locked up? When I was governor, my prison director used to say, very astutely, that we lock a lot of people up that we're mad at, rather than the ones we're afraid of. There are people that really need to be locked up, who will hurt people, but not everybody is like that. We lock up a lot of people that we're mad at. We're not fixing them. We're not changing our society.

This is not standard conservative talk. What I've just said to you is what I really believe and what I'd say anywhere. I'm not soft on crime. Crime needs to be punished, but realistically, and justly.