Don’t Throw Away That Key

Ronald Harmelin had no criminal record until two police officers stopped him early one morning in 1986 in Oak Park, Mich., for failure to make a complete stop at a red light.

Now he is in prison for life, without parole-the maximum penalty in Michigan for first-degree murder.

Harmelin did not kill anyone. His sentence was based solely on the officers’ discovery of 24 ounces of cocaine in the trunk of his 1977 Ford Torino.

An unemployed, drug-addicted, pool-hustling, 45-year-old Air Force veteran who had been an honor guard at President John Kennedy’s funeral, Harmelin claims he was just a "mule" transporting the cocaine to Detroit for his supplier.

The prosecution claims, but did not prove, that he must have been a major supplier himself, given the street value of the cocaine-more than $60,000-and his possession of some marijuana cigarettes, drug paraphernalia, $3,500 in cash, a beeper, and a coded address book.

Under Michigan law, such distinctions are irrelevant. Once the cocaine weighed in at more than 650 grams (23 ounces), the life sentence followed automatically. The judge had no discretion to consider whether Harmelin was a dangerous character, a good candidate for rehabilitation, or anything else about him-even whether he had ever sold drugs to anyone.

The Supreme Court will hear arguments Nov. 5 on Whether Harmelin’s sentence violated the Eighth Amendment ban on cruel and unusual punishment.

The sentence surely was both cruel and unusual as those words are commonly understood. But that’s not necessarily to say the justices will strike it down.

The Court has generally upheld long prison terms unless they are grossly disproportionate to the penalties imposed on others in similar cases. While Harmelin’s sentence and the Michigan law are extraordinarily harsh, prosecutors say this shows that Michigan is in the vanguard of enlightened law enforcement; they cite as evidence the rush by other states and Congress to mandate ever-longer prison terms for drug dealers.

The Court should void Harmelin’s sentence if the Eighth Amendment is to retain any vitality as a brake on mass hysteria. It should also strike a blow for sense and decency by puncturing the rationale underlying such excessive drug sentences: that drug dealing is the moral equivalent of’ ^ murder, or close to it.

The U.S. Court of Appeals for the 5th Circuit put it. most-luridly in 1988: "Except in rare cases, the murderer’s red . hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owners’ evil image."

Solicitor General Kenneth Starr, in an amicus curiae brief opposing Harmelin’s appeal, said he should be seen as guilty of "a crime of violence.” The conservative Washington Legal Foundation says he committed "a crime against humanity."

Such rhetoric has emotional appeal but throws reason to the winds. Translated into legal policy, it sends some non-violent drug dealers to prison for longer than many murderers and condemns many others to serve more time than armed robbers, rapists, and other violent criminals.

This is as perverse as it is cruel. Yes, many drug dealers and users do commit violent crimes, and many users do die of overdoses and give birth to severely afflicted babies. And yes, all drug dealers do share a measure of responsibility for these deaths and injuries. For this they should be punished, in many cases severely.

But to treat as killers every drug dealer and his mules, lookouts, and other helpers flouts enduring legal principles and a line of Supreme Court cases restricting the death penalty to those who kill intentionally or by deliberately creating a grave and immediate risk to human life.

Intentional killing is worlds apart, in terms of certainty of harm and moral culpability, from acting as one of many suppliers selling drugs in a mass marketplace of buyers, most of whom use drugs with knowledge of the risks.

Lots of people create similar risks of death or injury to others with no legal liability whatever. Among them are those who sell guns, booze, and tobacco-which alone, of course, kills many more people than illegal drugs do.

Others, like those who maintain unsafe workplaces, make unreasonably dangerous products, or drive at unsafe speeds, face nothing like the penalties applied to those who sell drugs. Businesses sued for making harmful products are pressing the Supreme Court in another pending case to curb their liability for punitive damages.

While selling drugs serves no useful social purpose to mitigate the risk of harm, the same can be said of cigarettes. And many drug dealers-unlike, say, the executives of Philip Morris-are themselves victims of deprived backgrounds in bombed-out ghettos where selling drugs is socially respectable and seems to offer an escape from poverty.

In short, drug dealers simply do not deserve to be punished as harshly as killers or other violent criminals, unless they commit (or commission) violent crimes.

Nor do the goals of getting dealers off the streets and deterring others from becoming dealers begin to justify penalties as harsh as those that have come into fashion.

Years of experience validate what common sense suggests: The thousands of desperate, impoverished youths who are drawn to the drug trade despite the constant danger of being killed by competitors will not be deterred by criminal sanctions, however harsh. And we cannot imprison enough of them to dry up the supply, even if we pockmark the nation with thousands of prison camps crammed with millions of poor blacks and Hispanics.

Already the prison and jail population has soared above one million, more than tripling in less than 20 years. Thanks largely to tough new mandatory drug sentencing laws passed in 1986 and 1988, the federal prison population has more than doubled since 1980, to 56,000, and is expected to reach 109,000 by 1997 and 147,000 by 2002.

While barely denting the drug market, these draconian laws are crowding prisons so severely that rapists, robbers, and even some murderers are being let out early to make room for small-time dealers doing 5, 10, 15 years and more-among them many non-violent first offenders who just might go straight if released after a year or two of shock incarceration.

But politics blinds our leaders to the facts. Having virtually exhausted the possibilities for ratcheting up mandatory prison sentences, the Bush administration and many in Congress have conducted a cynical election-year campaign to wheel out the death penalty. Both houses of Congress have passed Bush-supported measures authorizing execution of major drug traffickers, even if they are not linked to any deaths, and of small-time dealers whose customers die from overdoses.

Meanwhile, many and perhaps most federal judges of all political stripes say tough mandatory sentencing laws conscript them into pronouncing senseless and unjust prison terms.

U.S. District Judge J. Lawrence Irving of San Diego, a Reagan appointee, resigned in protest in September, saying that legislation drastically curbing judicial discretion had "dehumanized the sentencing process."

The perverse results of piling on such harsh mandatory sentences may not be limited to wrecking salvageable lives, sending more of our black and Hispanic youths to prison than to college, and demoralizing the judiciary. Unduly harsh sentencing laws could even feed drug violence by raising the stakes of getting caught.

When Ronald Harmelin was stopped, he was carrying a pistol in an ankle holster, for which he had a concealed-weapon permit. He got out of his car at the direction of the police, volunteered that he had a gun, told them where to find it, and meekly submitted to a search.

One wonders what Harmelin might have done that morning had he been the coldblooded merchant of death the law presumed him to be-and had he known that the mandatory penalty for the cocaine in his trunk was the same as for murder.