Charles Shelton, a tall, shrunken man of 30 who peddled narcotics to support his heroin addiction, leaned against a mailbox under a small tree at the corner of 11th and Fairmont streets NW on the balmy afternoon of Oct. 18, 1983. He heard a whistle and looked up to see Raymond Hall, a quiet 19-year-old who delivered heroin for a narcotics ring that called itself Cloud Nine. Hall came over, took $310 from Shelton and gave the older man 10 plastic envelopes of heroin to sell for Cloud Nine.
The transaction was over in an instant, but undercover police staked out in an unmarked car saw it all. Within minutes, Hall and Shelton were looking at a future behind bars because of a tough new sentencing law that had gone into effect four months earlier. Washington residents, fed up with drug trafficking on city streets and the way dealers seemed to slip through the courts unscathed, had approved a voter initiative requiring judges to impose minimum prison sentences on drug dealers convicted in D.C. Superior Court. But Hall did not spend a day in jail. Allowed by prosecutors to plead guilty to a reduced charge, he was put on probation, only to go back to marketing drugs for Cloud Nine. Shelton, because he was an addict, received a suspended sentence to enter a drug treatment program, but he never went and was arrested twice more for selling drugs to support his habit.
A two-year Washington Post study has found their cases to be typical of the thousands decided in city courts since the mandatory sentencing law took effect June 7, 1983.
The Post study of more than 600 drug cases shows:
Prosecutors, judges and defense attorneys have thwarted the law by plea bargains and sentencing alternatives to keep cases moving through the courts.
*Only a fraction of those convicted of selling drugs ever receive mandatory minimum terms.
*Those sent to prison are mostly small, street-level peddlers, rather than the suppliers targeted by the law.
*The law has not made it easier and may have made it more difficult to persuade offenders to cooperate with drug investigators seeking suppliers.
*Decisions about which offenders should be exempted from the law because they are addicts who need treatment often are made capriciously without medical advice.
"I don't think that the mandatory sentencing law has worked well in practice, and I certainly don't think that it has produced the results that the electorate hoped it would produce," said Steve Gordon, who until last year was largely responsible for enforcing the city's drug laws for the U.S. attorney's office.
"I think it was probably doomed not to work in the long run, and it's helped fill up the jail at a time when the jails were already overcrowded," said Gordon, the former director of felony trials in Superior Court.
*Surprising Side Effects
This is the first in a series of articles describing what happens in court to the people who feed the city's drug habits.
Mandatory sentencing was born of citizens' concerns that Washington's drug trade was getting worse, and posed a serious threat to the city's youth and neighborhoods. The law was written by D.C. City Council member John Ray (D-At Large), who was running for mayor, as a voter initiative after the council refused to enact mandatory penalties for certain drug and gun offenses. It was approved nearly 3 to 1 in the primary election of Sept. 14, 1982, making the District's drug law one of the harshest in the nation.
The law went into effect nine months later, taking away from judges the power to use broad discretion in sentencing offenders and prescribing minimum prison terms of four years for selling or possession with intent to distribute any amount of heroin and other narcotics and 20 months for non-narcotics such as cocaine and PCP.
Ray had argued that the measure would make drug dealers think twice before they broke the law, that it would make drug sentences more even and that it would help officials find sources of drugs. None of that has happened. And, in many ways, the opposite is true.
"It's certainly not working to stem the flow of drugs," said defense lawyer Roger Durban. "My God. There's an army of these guys."
Drugs are more widely available today than they were before the law went into effect. Heroin is purer, but the price has stayed the same. One police official estimated that more than $1.5 million worth of heroin alone is sold in the city each day, while sales of cocaine and PCP have skyrocketed because of low prices and accessible supplies. And overdose deaths remain at record levels.
"It's always going to be there, and we're not going to get rid of it," said veteran narcotics Detective Steve Finkelberg. "We're just trying to curtail it and slow it up."
Drug use is almost epidemic among the city's youth, and those using as well as peddling drugs are getting younger. In 1985, the median age of drug offenders in a Post sample of 100 defendants was 23, six years younger than in a similar sample in 1983.
"We've arrested 9- and 7-year-old kids for selling cocaine and PCP. It's not uncommon," said Officer Dwight Hunter of the police Narcotics Task Force. "And sometimes it's hard to tell who's the person that started it, the adult or the juvenile, because a lot of times the juvenile is just as bold as the adult that's out there selling it with him."
Ray said most city officials never supported his sentencing law and have not spent the money to publicize it and make it effective.
Most of those arrested have never heard of mandatory sentencing and seem only vaguely aware that they are supposed to conform their conduct to the law.
Drug offenders interviewed by The Post said they did not know what a mandatory sentence was until they got to court.
"My clients have ninth- or 10th-grade educations. A lot of them can't read. It takes them a lot of court hearings for them to understand that it's important to get there at 9 instead of 9:30," said attorney Marian Flynn.
"They're not ones to get out of Lorton in 20 months and spread the word not to do this. To go to jail is not a really horrible thing. It doesn't frighten them as much as you might think."
Even defendants who received long terms said they viewed their sentences as a fair trade for the high living they enjoyed before they were caught.
Frank Ferguson, an addict, said he was happy to plead to a charge of distributing Preludin, an appetite suppressant pill, and take a minimum prison term of 20 months. He could have gotten much worse, he said, if police had ever caught on to the heroin distribution business he had been running.
"It was a good business. A real good business," said Ferguson, now 34. "As a matter of fact, our apartment has four TVs in it and it only has room for two. The other ones were in the closet."
When City Council member Ray launched his referendum drive for mandatory terms in the summer of 1981, he declared, "We are not after addicts." Addicts were considered less culpable because of the physical effects of their habits, so they were given a second chance -- the law allows them to be exempted from minimum terms, but only if they have no previous conviction for drug sales.
The majority of those arrested when the law went into effect were addicts, The Post's study showed, and even a second chance to go straight rarely keeps addicts from returning to the streets.
Among The Post's sample of 100 defendants indicted on drug charges in 1983, 62 percent were addicts. More than 60 percent of those addicts had a prior drug conviction. Forty-seven percent of the addicts had a drug charge pending in court when they were arrested. And 48 percent of addicts released pending trial were arrested on new drug charges before their original cases were resolved.
"You get to the point where you don't care, you're just living from day to day," said Samuel Carter-Bey, convicted of selling a $15 Preludin pill to an undercover officer.
"You don't even care about the possibility of getting busted. I can know you're a narcotics agent and sell you something anyway and say, 'Screw it. I'll just deal with it later on.' "
Half of the addicts in The Post's 1983 sample went to prison or jail, but most received less than the mandatory minimum term, while another third was placed on probation to undergo drug treatment.
Cases drag on for months in court -- 11.3 months on the average in The Post's 1983 sample -- giving dealers plenty of time to continue their drug activities and robbing the law of a tenet of deterrence: that punishment quickly follows the crime.
"Swift and certain punishment, other than getting a boot on your car, does not exist," said Officer Dan Wagner of the 3rd District vice squad.
Superior Court Judge Steffen W. Graae said he does not see any evidence that the mandatory sentencing law has been a deterrent, but deterrence is almost as difficult to measure as it is to legislate. At what point do people stop committing crimes because they fear going to prison?
One measure used by criminal justice authorities is whether there is a dramatic increase in the odds that violators will be punished. D.C. police are making more drug arrests than before the law went into effect, but not in the kind of massive numbers that would significantly change the odds of an individual being caught.
Sentencing must follow conviction, and the Post study found that a convicted offender is no more likely to be sent to prison now than before the law was passed. Rates of conviction and incarceration were virtually unchanged.
Among a group of defendants indicted for drug distribution in 1981, two years before mandatory sentencing took effect, 76 percent were convicted and 57 percent were sent to prison, compared with 75 percent convicted and 54 percent sentenced to prison in the months after the law went on the books.
A more recent sample suggests that felony conviction rates are plummeting. Of 100 defendants indicted on felony drug charges in 1985, so far 47 defendants have pleaded guilty to reduced misdemeanor charges, compared with 14 defendants in 1983 and 16 in 1981.
The chance of a defendant receiving a mandatory minimum term is slim. In the 1983 group, 22 offenders were given mandatory terms, with two offenders later resentenced to shorter terms.
Still, it does not take much to upset the city's prison system. Corrections officials trace their overcrowding dilemma to a sharp rise in the inmate population that began shortly after police stepped up their crackdown on street drug sales in 1979. Since 1980, drug arrests, the number of court convictions and prison inmates have all been on a steady, parallel climb.
"I understand the community's concern and why they passed the law. But I think it comes from not really knowing what's going on down here," said Superior Court Judge Nan R. Huhn.