BECAUSE OF TYPOGRAPHICAL ERROR, THE U.S. PRISON POPULATION WAS MISSTATED IN JOHN R. DUNNE'S AUG. 12 OP-ED PIECE. THE CORRECT NUMBER IS 1.3 MILLION. (PUBLISHED 08/18/99)

Last month the nation's drug policy director, retired Gen. Barry McCaffrey, criticized New York State's harsh and inflexible drug laws, asserting that building more prisons will not solve the problem of drug-driven crime and that New York needs more drug treatment programs rather than more prison beds. He's right.

In 1973, as a member of the New York State Senate, I supported enactment of the Rockefeller Drug Laws, intended to reduce illegal drug use and force dealers off the street. The hard experience of the last quarter-century shows that those measures have failed to achieve their goals. Instead, these and similar laws across the nation have handcuffed our judges, filled our prisons to dangerously crowded conditions and denied sufficient drug treatment alternatives to nonviolent addicted offenders who need help and who pose no danger to public safety. Government leaders must agree now to meaningful reforms.

Largely fueled by the Rockefeller Drug Laws, which require substantial prison sentences for many offenders who are not dangerous to public safety, New York's prison population has exploded from 12,500 in 1973 to more than 70,000 today. Prisons across the nation are bulging with more than 13 million inmates -- and the biggest contributor to the rise in prison populations is nonviolent drug offenders. Almost one-quarter of all state prisoners are locked up for nonviolent drug offenses, an increase of nearly 400 percent in just two decades, despite the fact that drug trafficking and usage have remained relatively constant.

New York has a higher percentage of drug offenders doing time than the national average because the Rockefeller Drug Laws require some of the nation's longest prison sentences. For example, a judge must impose a prison term of no fewer than 15 years to life for anyone convicted of selling two ounces or possessing four ounces of a narcotic substance. These Draconian penalties apply without regard to the circumstances of the offense or the individual's character or background. Whether the person is a first-time or repeat offender is irrelevant. Yet these offenders face the same penalties as murderers, arsonists and kidnappers, while rape, sexual child abuse and armed robbery carry lesser sanctions.

Too often, our drug laws result in the long-term imprisonment of minor dealers or persons only marginally involved in the drug trade. They do not generally deter drug addicts; to them, the threat of imprisonment is irrelevant, as drugs are an integral part of their lives. Many are sick and need help and would welcome the opportunity to participate in a drug treatment program. Similarly, the laws have little deterrent effect on drug kingpins, because the profits are great and the risk of apprehension slight.

Compounding the failure of the drug laws is their uneven enforcement, which has been disproportionately harsh on communities of color. In New York 94 percent of those in prison for drug offenses are African American or Latino. This despite studies that show that whites make up the majority of those who consume drugs. Further, while about 70 percent of the women now being sent to prison are committed for drug crimes, a large percentage, including some 95 percent of those charged as drug couriers, have no previous history of criminal involvement.

Despite the failure of our drug laws, the prison building and operating costs required by them have been staggering: about $2 billion for construction and more than $700 million annually for confinement. New York's prison budget alone, not including police, prosecution, defense and court costs, has grown to close to $2 billion a year.

Flexibility and sentencing discretion must be restored to judges to enable them to tailor appropriate prison or alternative sentences based on the nature and circumstances of the offense and the history and character of the offender. The most suitable sanction for most nonviolent drug offenders -- and one that is less costly and generally more effective than imprisonment -- is mandatory drug treatment, residential or outpatient. More treatment and graduated penalties should follow when relapses occur. Intensively supervised probation that includes such features as day reporting, community service and job training is appropriate for addicts as well as low-level sellers.

Numerous studies, including those sponsored by the National Institute on Drug Abuse, have shown that drug treatment programs are successful in reducing drug abuse and crime. A recent study by the Rand Corp. found that drug treatment reduces violent crime far more than does imprisonment.

As Barry McCaffrey has repeatedly counseled, our nation can no longer afford to build prisons for thousands of people for whom imprisonment is unnecessary. And justice demands sentencing laws that are fair to drug offenders and that will, at the same time, improve public safety.

The writer, a former assistant attorney general for civil rights under President Bush, was the chair of the New York State Senate Prison Committee when the Rockefeller Drug Laws were enacted.