- The Washington Times - Monday, August 20, 2001

The Justice Department yesterday said changes in federal laws over the past two decades have led to longer prison sentences for those convicted on drug charges, but two university professors say average prison terms have decreased "steadily and dramatically" since 1991.

The Justice Department reported that changes in federal statutes during the 1980s and 1990s had a "substantial effect on the processing of defendants convicted in federal courts — especially drug law offenders."

The department said that between 1986 and 1999, average prison terms imposed on drug offenders had increased from 62 months to 74 months and that the average term drug offenders could expect to serve rose from 30 months to 66 months.

In its report, the Justice Department also said more than 38,000 people were referred to federal prosecutors for suspected drug offenses during 1999 — the latest figures available and that 84 percent of them subsequently were charged in a federal court.

However, law professors Frank O. Bowman III at Indiana University and Michael Heise at Case Western Reserve University said the Justice Department report released yesterday "creates an entirely misleading impression about the current state of federal drug sentencing."

Mr. Bowman and Mr. Heise, whose study of drug sentencing is outlined in a 93-page report, said federal drug sentences have steadily been declining for nearly a decade.

"The data is quite uniform and I don't think it really is disputable," Mr. Bowman, a former prosecutor, said during a telephone interview from his office at Indiana University School of Law. "I am not suspicious that the department is trying to mislead anyone, but there is no question the length of drug sentences has declined steadily since 1991."

In their report, Mr. Bowman and Mr. Heise said that according to figures maintained by the Administrative Office of the U.S. Courts, the average federal drug sentence decreased from 95.7 months to 75.2 months in the eight years between 1991 and 1999 a drop of 21 percent, or nearly two years, per defendant.

They also said that U.S. Sentencing Commission statistics reported "a less precipitous but still unmistakable decline in average drug sentences" from 88.2 months in 1992 to 75.2 months in 1999 — a decline of 14.7 percent.

The professors' report said the downward trend in drug sentencings had until recently gone "unobserved," and "remains generally unknown even among federal criminal justice professionals."

Mr. Bowman noted that some of the decreases in drug sentences was attributable to non-discretionary factors, such as the passage in 1994 of so-called "safety valve" measures that allowed a reduced sentence for certain first-time drug offenders.

He said the continuing downward movement over nearly a decade in sentencing was, to a significant degree, the product of "an array of discretionary choices by judges, prosecutors, defense counsel and probation officers" involved in the sentencing of individual defendants.

Mr. Bowman said that at "virtually every point in the sentencing process" where prosecutors and judges could exercise discretionary authority to reduce drug sentences, "they have done so."

He also said that since 1992, the trend has "always" — in fact with increasing frequency — been toward exercising discretion in favor of leniency.

"We are not suggesting that the majority of federal judges and prosecutors are in favor of legalizing drugs or are wringing their hands over the prescribed sentences, but what we do see is that the sentences are so high that the judges do not have to enforce the letter of the law to still get huge prison terms.

"They can take big shortcuts and go home at night and still feel confident they put a drug dealer in prison for a substantial period," he said.

Mr. Bowman said discretionary choices made at sentencing are the product of a widespread perception among judges, lawyers and probation officers of the federal criminal justice system that "drug sentences are often too high or are at the very least often higher than necessary to achieve the personal or institutional objective of these front-line actors of the federal criminal system."

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