Countless thousands of people are rotting in prisons all across America–many in Texas–for being caught with small amounts of cocaine or crack, its smokable variant. Many were only peripherally involved in drug sales. Some were mere users. As governor of Texas, Bush–like most other politicians in both parties–has joined in this orgy of punishment with enthusiasm, signing laws that toughen penalties for drug users as well as pushers, and that send juveniles as young as 14 to prison for especially serious crimes, including some drug crimes.

How can he square this with his position that whether he used drugs is irrelevant to his candidacy? If Bush won’t tell us whether he used cocaine or other illegal drugs in his first 28 years–and there’s no evidence that he did–he should at least tell us whether his admitted but unspecified “young and irresponsible” escapades would have landed him in prison had the drug laws he supports been enforced against him.

In 1997 Bush signed a measure authorizing judges to give jail time to people convicted of possessing (or selling) less than one gram (one twenty-eighth of an ounce) of cocaine. Texas sentencing guidelines had previously prescribed mandatory probation for such small quantities. And in 1995, Bush pushed through the new law expanding the list of crimes for which juveniles as young as 14 (down from 15) can be tried and imprisoned as adults.

It’s not that Bush has been exceptionally tough on drug crimes. Most national Democrats, including President Clinton and Vice President Gore, support mandatory federal penalties for small-time drug offenders that are far harsher than the laws in Texas, where judges at least have discretion to show leniency to nondangerous abusers. Still, there is strong journalistic justification for confronting any drug use in Bush’s past. That would foster debate on a vital issue of national policy: should Congress and the next president (as well as the states) revise the draconian drug-sentencing regime that has packed prisons with nonviolent, small-time drug offenders–mostly poor and nonwhite–and helped send the number of Americans behind bars soaring above 1.8 million?

As James Madison wrote in Federalist 57, one of the Constitution’s safeguards against “oppressive measures” is that Congress “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society.” The same logic argues that politicians should be pressed to say–and voters should be spurred to think about–how they would have fared if they had committed their own youthful indiscretions in the presence of (say) an undercover cop.

Any Bush admission that he used cocaine when he was (say) 25 years old–if he did–should force him, his supporters and the rest of us to do some hard thinking about whether today’s 25-year-olds (and 18-year-olds) should go to prison for doing the same thing.

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