The New Attorney General Tries to Change the Debate on Drugs and Crime
June 10th, 1993
By Francis Wilkinson
On a cool, windy day in early April, Attorney General Janet Reno spoke to a lunch‑time crowd of Department of Justice employees in the enclosed courtyard of the Justice building. Reno had already won the allegiance of many employees by taking her lunch alongside the rank and file of the civil‑rights and criminal and antitrust divisions in the department cafeteria, a marked departure from department precedent. Now, two weeks before her first crisis, when David Koresh's Ranch Apocalypse would make good on its name, Reno stood at a podium in the center of the courtyard and solidified her hold on a vital constituency. Her six‑foot‑two‑inch frame stiffened in the cold spring breeze, which she weathered coatless, in classic macho political style.
“Barr would never have done this," murmured one department lawyer in the crowd, referring to William Barr, Reno's predecessor under President Bush.
"No one would have showed up to hear him if he did,” another responded.
Reno, a deliberate, self‑contained woman, is not a stirring public speaker. But her rhetoric is so contrary to what we have come to expect from the office of attorney general, which over the past twelve years lurched along a continuum from comical to criminal to comatose and back again, that a mild delivery cannot blunt the shock of Reno's hard‑nosed decency. Reno came on the scene as a big, backwoods woman whose mama had rassled alligators in the swamps. After robo‑yuppie Zoe Baird and ingénue Kimba Wood were yanked off the stage, Reno appeared as a tough prosecutor who didn't shirk from mean streets or those who run them. She seemed more Texas than Florida, where she spent the last fifteen years as Miami's top prosecutor. But Reno also studied law at Harvard, the world capital of woolly-headed liberalism, and her family, newspapers say, was positively "eccentric" (Her brother is an ingenious liberal columnist buried in the pages of Newsday.) As it turns out, Reno's philosophical opposition to the death penalty, which caused some consternation on the Strom Thurmond side of the aisle, is just the fuzzy tip of a mammoth, woolly iceberg.
"Janet is part social worker, part crime fighter," said Florida senator Bob Graham in March, introducing Reno to his colleagues on the Senate Judiciary Committee. To put this in context, think of William Barr, Dick Thornburgh, Ed Meese, William French Smith. Come across a social worker yet?
Speaking to her employees, Reno expressed compassion for "the angry young man who lashes out in violence because he never had a childhood." She urged that prosecutors "make sure that innocent people are not charged or even tainted by our actions and that the guilty are convicted, according to principles of strict due process and fair play and with adherence to our Constitution."
The failure of the war on drugs has no better symbol than Gary Fannon (see “The Case of Gary Fannon, " RS 638). A young man who wanted to be an auto mechanic, Fannon maintains he sold pot occasionally until an undercover agent induced him to sell first small, then larger amounts of cocaine. Even though he was a first-time offender, Fannon was sentenced to life without parole under Michigan's harsh mandatory‑sentencing law, typical of federal and state laws around the nation. Now twenty‑four, Fannon is six years into his life sentence.
The crowd of lawyers and staff, still slightly hung over from the crime‑buster hype and crass politicization that enveloped the department during the Reagan and Bush years, hesitated a moment before breaking into applause when Reno declared, "We cannot respond [to violence] with demagogic promises to build more jails and put all the criminals away."
Based on that statement alone, Reno represents a dramatic break with the recent past. "Demagogic promises" largely describes criminal‑justice policy in Washington during the Eighties. William Barr, for example, offered Americans a pat choice between "more prison space or more crime." Instead, we got both. Violent crime, along with prison construction and population, soared during Bush's term.
The United States now has the highest per capita imprisonment rate in the world, surpassing even South Africa's. Federal spending on corrections increased forty‑four percent from 1989 to 1992, hitting $2.2 billion a year. In California alone, where the inmate population recently broke the 100,000 mark, state prisons now cost more than $6 million a day. In 1990, the United States spent $74 billion on the criminal‑justice system.
Since the greatest common denominator of crime is drugs, with more than half of federal prosecutions on drug‑related charges, Reno and the new administration have an opportunity to arrest, or even reverse, this escalation by making substantial changes in drug policy, abandoning expensive interdiction and enforcement efforts that yield ‑ at the very best ‑ mixed results. The lock‑'em‑up‑and‑throw‑away‑the‑key creed that has governed federal drug policy for more than a decade has proved hopeless, perhaps most of all to the taxpayers who pick up the ever‑rising tab while suffering the consequences of ever‑increasing crime.
"It doesn't help to send someone off to prison for three years, pluck them out of the community and then plunk them back down if they've got a drug problem without having provided treatment," Reno says. "Better that we use our resources to provide alternative sanctions that allow them to come back to the community with a better chance of being law-abiding citizens."
How welcome an environment Reno finds for her "alternative" efforts depends in part on the amenability of Lee Brown, the nominee for director of the Office of National Drug Control Policy, the so-called drug czar, who will coordinate administration policy. Brown has said the nation's drug‑control strategy needs redirecting. "Significantly more money is needed for drug‑treatment programs, drug‑education programs, as well as our law‑enforcement initiatives," he told the Senate Judiciary Committee in 1990. And it depends on whether the White House and Congress are ready to make a new social compact, exchanging the cheap rhetoric and easy answers of failed policies for a more difficult and ambiguous search for results.
The Clinton White House has shut down drug‑war demagogy. But lacking direction, it hasn't even attempted to fill the resulting vacuum. Meanwhile, most of Washington remains convinced there's more mileage to be had in being "tough on crime" than in being smart on crime. Reno has had the unusual courage to step out of the pack. So far, she stands alone.
CLINTON'S FIRST ACT OF DRUG POLICY WAS to scale back the ONDCP, which the president hacked by eighty percent in early February. Swiftly after its creation in 1988 (inspired by Democratic legislators eager to score points in the tough‑on crime game), the office became a beach-head not for a coordinated assault on drugs but for Republican‑party flotsam washed ashore. In February, Clinton pared the staff from 146 to 25, leaving an ample number to perform the office's coordinating role. While diminishing its size, Clinton vowed to raise the office to cabinet rank in an effort to increase its prestige and visibility, though the move also served as a tacit acknowledgment that the drug problem is here to stay.
Aside from the appointment of Reno, who originated a successful "drug court" in Miami where nonviolent offenders were channeled into treatment, the most obvious policy departure so far has been the Clinton White House's rhetorical retreat. The National Security Council has quietly demoted drugs from third place to twenty‑ninth on a list of twenty‑nine priorities. In an April interview, Clinton domestic‑policy adviser Carol Rasco, a gracious and well‑mannered Arkansan, uttered the phrase war on drugs haltingly, with qualifiers and caveats, as though it were an unseemly but unavoidable breach of etiquette. Asked about Washington's deeply ingrained tradition of grandstanding on drugs, Reno softly says: "I don't want to do that. It makes me very nervous." Given the dearth of drug‑war stunts in recent months, and the resultant decline in media interest, only six percent of the country currently consider drugs the nation's No. 1 problem.
By contrast, eight months into his term, Bush had already reached the point of posing in the Oval Office using an evidence bag of crack as a prop. Two months later, riding a wave of terror promulgated by the White House, thirty-eight percent of Americans viewed drugs as the No. 1 problem facing the nation. Drug czar William Bennett saw the public's hysteria and raised it, saying he didn't consider it altogether inappropriate to behead drug dealers. By the time he finally departed, Bush had put more money into the drug war ‑ some $45 billion over four years ‑ than the three previous presidents combined.
Congress, too, played its part, ratifying the Bush budgets while senators in high dudgeon called for the "death penalty for drug kingpins," and majorities in both houses voted to federalize a host of drug crimes and punish them with mandatory minimum sentences. The result: Federal prisons are now bulging at roughly 160 percent of capacity, and violent criminals are having their sentences reduced to make room for nonviolent drug offenders bound by mandatory minimums.
"That stuff made for great press conferences," one Senate staffer says, "but nobody thought about how it was going to affect the administration of justice."
Frustration among federal judges, whose courts have flooded with drug cases while their sentencing discretion has been severely curtailed, has spawned isolated revolts. In April, a federal district judge in New York announced he would no longer take drug cases ‑ joining a colleague who had quietly been refusing drug cases for more than a year ‑ in protest against the tyranny of federalized drug crimes, arbitrary sentencing guidelines and mandatory minimums. "I think generally there is a feeling among federal judges that we're being overwhelmed by criminal cases," says federal appeals‑court judge Stephen Reinhardt in Los Angeles.
"They have set such atrocious and unfair statutory minimum sentences that the result is there is often no relationship between the sentence received and the crime involved," says Donald Lay, former chief judge of the Court of Appeals for the Eighth Circuit in St. Paul. “The hysteria over the control of drugs has led us to a point where I think we've broken down many civil rights."
Mandatory minimums, along with criminal forfeiture laws giving police and prosecutors broad powers to seize defendants' assets, even in lieu of convictions, has led some defense attorneys to refer to the war on drugs as the war on the Constitution. Persistent race and class biases in sentencing underscore the problem. In 1988, Congress made the punishment for crack possession 100 times greater than that for cocaine possession, thereby punishing offenders largely on the basis of which neighborhood they live in ‑ inner city or suburb, black or white. Meanwhile, drunk drivers, whose lethality is documented daily, receive only a fraction of the punishment routinely meted out to nonviolent drug abusers.
California Democrat Don Edwards has introduced a bill in the House to eliminate mandatory minimums, but the legislation has virtually no chance of receiving serious consideration. While federal judges bemoan their staggering caseloads, some members of Congress, eager to ride the latest crime wave, have even toyed with the idea of federalizing car jacking with any luck before it goes out of style.
Congress is teeming with the kind of college boys who are forever trying to out-macho the locals, whose vigilante instincts may be more genuine but are far less influential. When the Reagan and Bush Justice Departments staked their positions on the extreme right of the debate, Democrats in Congress, fearful of looking like wussies, moved with them. "The boundaries of debate on this were ridiculously narrow for twelve years," says a Senate staffer. The crime bill that stalled in the Senate last year contained unprecedented restrictions on habeas corpus, additional mandatory minimums and the death penalty for three different drug‑related crimes.
But Congress's vulnerability to fashion and political expediency may also provide the basis for change. In moving the Justice Department back to rational, achievable criminal‑justice principles, Reno may make it possible for members of Congress to move along with her. “The question is whether Janet Reno will go to Congress and make that case instead of going with the political flow," says Scott Wallace of the Criminal Justice Policy Foundation. In effect, the question is whether through advocacy, Reno can create a new political flow altogether. "The Justice Department can lead the way and provide political cover for members," one House aide says.
Mandatory minimums and drug‑war hyperbole remain the norms in Congress. But Democrat Charles Schumer, a tough‑talking New Yorker who, as the influential chair of the House Subcommittee on Crime, has contributed more than his share of hype to the debate on crime and drugs, has taken the promising first step of scheduling a conference in May to discuss, among other topics, the efficacy of mandatory minimums. While Schumer is committed to most mandatory minimums as well as to the various "death penalty for drug kingpin” provisions of the crime bill, the conference signals a new, less stifling atmosphere for debate. It is also an indication that the many horror stories detailing lengthy mandatory prison sentences for small‑fry drug couriers and tangential, passive actors in drug crimes may finally be sinking into the dense and vaporous congressional conscience.
House members took another step in the direction of candor in late January, stunning the leadership by voting 237 to 180 to kill the Select Committee on Narcotics Abuse and Control. The committee was little more than a self‑promotion vehicle for its chairman, New York Democrat Charles Rangel, who by virtue of his chairmanship became a drug "expert" much quoted by the press.
Even in the Senate, where judiciary Committee chairman Joe Biden's waffling on important crime‑policy matters has appalled criminal‑justice advocates of virtually every persuasion, there is some cause for hope. Judiciary Committee members Ted Kennedy and Orrin Hatch have expressed alarm over mandatory minimums. Such prominent, bipartisan second thoughts can lead to constructive reconsideration of broader policy questions, so long as the administration provides a safe political context.
If Reno succeeds in altering the political flow, in making smart on crime a politically palatable choice, Biden can be expected to change direction, too. "He's always trying to have it every conceivable way," says a former Judiciary Committee staffer. Of course, that's a criticism that has been made of another prominent Democrat, as well. Perhaps it should come as no surprise that the president, whose attorney general talks of "alternative sanctions" and "rational sentencing" has been quietly pushing Biden to revitalize last year's crime bill, with all of its callous, careless charms. Clinton, after all, authorized the execution of a retarded Arkansas man in the midst of last year's campaign. Some people just can't resist being tough on crime.
THE MOST IMPORTANT DEBATE ON DRUG policy taking place right now concerns the allocation of money. The administration's budget for fiscal year 1994 reflects the same funding priorities ‑ an almost two-to‑one split in money to address the supply‑and‑demand sides of the drug equation ‑ that prevailed through the Bush years. Law‑enforcement and interdiction efforts continue to dominate the budget at the expense of treatment and prevention.
“The basic debate has been about how you divide the money between supply-and‑demand sides," says Rand analyst Peter Reuter, who contributed to the Clinton transition team's drug‑policy paper. "There are very few people who think the current allocation is correct.
In "Putting People First," his 172‑page campaign wish list, Clinton called for drug treatment on demand. It has become a consensus Democratic‑party position. But no one has made much effort to make it happen. Kevin Zeese of the Drug Policy Foundation estimates that nationwide treatment on demand could be had for $1 billion, or less than the Pentagon spends on its interdiction efforts.
“We're looking for greater emphasis on treatment and prevention than there was in the past,” says Carol Rasco. "We want a better balance there." But when asked if the $13 billion drug budget can be rejiggered this year to reflect that desire, she says, "I honestly cannot answer that." Though the administration spent months fiddling with the most arcane details of its $16 billion stimulus package, it has hardly begun to think about the larger $13 billion drug mess.
Most estimates assume somewhere around ten or fifteen percent of illegal narcotics shipments to the United States are confiscated. But while middle‑class drug use seems to have abated somewhat, heroin and LSD consumption are up. And no one denies that cocaine is abundant on the country's street corners and, in the form of crack, wondrously affordable.
While some law‑enforcement agencies and a few Pentagon operations have grow accustomed to buying new boats and planes and sophisticated surveillance equipment with their shares of the drug budget, they are not particularly powerful constituencies. "I don't see any great institutional problems there," says Paul Stares of the Brookings Institution. “The DEA may squeal. But I’ve never thought that the military's heart was in it.”
As head of the Justice Department, Reno cannot fund treatment programs or unilaterally alter drug‑enforcement‑budget lines. In fact, none of the many divisions under her authority that deal with illegal drugs ‑ the Bureau of Prisons, the Drug Enforcement Administration, the FBI, the Bureau of Justice Assistance, federal prosecutors ‑ have wide policy‑making discretion. The fundamental changes have to be instigated by the White House, which failed to submit its drug-control policy to Congress as required on February 1st, or by Congress itself.
But the attorney general is the most visible representative of a new wave in law enforcement, advocating a comprehensive approach to crime that was already taking root in local police departments even as the Reagan and Bush administrations continued wallowing in Dodge City rhetoric. It's a philosophy consistent with the community‑policing ideals promoted by drug‑policy‑director nominee Lee Brown when he was head of the New York City Police Department. In essence, it is the age‑old, pointy‑headed liberal desire to get at the sociological root of crime.
Reno can encourage US. Attorneys around the nation to explore alternative sentencing measures that skirt current sentencing guidelines. In early May she ordered department lawyers to review sentencing procedures for low‑level offenders. But to have real impact on policy, she will have to take a stand on the overall drug budget, which the White House is in the process of reviewing. “They know how I feel about the emphasis on prevention," Reno says of the White House.
While acknowledging the need for more treatment and prevention measures, domestic‑policy adviser Rasco would not say that the budget allocations will be substantially altered. "It's not necessarily lowering one side," she says. "It's raising visibility on the other."
It's unclear exactly where Lee Brown will come down in this debate. But given the credibility bestowed by his extensive law‑enforcement background and the soapbox he'll gain when he takes over the ONDCP, it's critical that he enlist in what is currently Reno's light. The attorney general cannot be expected to overcome a timid White House and reckless Congress on her own.
Polls show Americans are supportive of drug‑treatment measures. But citizens are not easily whipped into a frenzy over treatment and prevention the way they can be over the more resonant themes of crime and punishment. Part of the problem is that putting drug criminals behind bars for long sentences is easily comprehensible as policy. Only when one realizes that for every low‑level drug criminal locked away (at some $20,000 a year in federal prisons), five more take his place on the street, does the more complicated concept of alternative sentences, treatment and education begin to take hold.
Treatment and prevention will be no panacea, either. In seeking a comprehensive approach to crime and drugs, Reno is taking on more than she, or perhaps anyone, can handle ‑ the tangled pathology of the urban ghetto. She says she wants to develop a national agenda for children that touches on everything from education to health care. "People say, 'What does that have to do with crime policy?' and I say, 'A lot,' " says Reno.
Reno says she is ready to take the heat if her social‑work ethic inspires attacks that she is soft on crime: “I'm prepared to be attacked. But I don't approach this from the point of view of attack or political battles. I approach this issue from the point of view of common sense."
With a modicum of support from the Oval Office, Reno has the opportunity to be as bold at justice as Bruce Babbitt is being at Interior and for much the same reason. Both have taken over moribund agencies from inept stewards. Both have actually thought about what they want to do. Consequently, a solid burst of adrenalin now feels like electroshock therapy.
But Reno has the more difficult case to make to the White House, the Congress and the nation. She is looking for new solutions in an area where no one yet understands ‑ or even agrees upon ‑the problems. They are all so big and so unwieldy and so very expensive that no one in power is particularly eager to help the attorney general confront them.
During her confirmation hearings, Reno was subjected to one blustering senator after another, each spouting off about a personal peeve. Joe Biden yakked incessantly about his proposed Violence Against Women Act, the judiciary committee chairman's public expiation for Anita Hill's ordeal at the groping hands of his committee. Alan Simpson droned on about his eponymous immigration bill, the unworkable fine print of which had destroyed the two previous nominees.
But despite heavy winds and a disincentive for frank talk, Reno occasionally tried to make herself heard. "I think the problem of drugs in America, youth violence, teen pregnancy and youth gangs are symptoms of a deeper problem in America," she said to Arlen Specter, attempting to pierce the aura of numbness that surrounds the senator like a clammy fog. "And that is that too often we have forgotten and neglected our children."
But Specter, a former prosecutor who last year was pictured smiling in a campaign poster surrounded by child props of every tone and hue, knew that pursuing such a conversation could only lead to trouble. The Pennsylvania Republican ducked out of Reno's reach.
Children, families, gangs, teen pregnancy, drugs, crime, violence . . . "Let's come to that at a later point," the senator mumbled, pushing the whole mess back into Reno's lap, which is where it will undoubtedly stay.