The decision to base prison terms on the quantity of drugs involved, however, leads to much injustice.  Had Richard Anderson's acquaintance been carrying forty-nine grams of crack instead of more than fifty, Anderson would have faced a mandatory five years in jail instead of ten.  Yet the quantity of drugs involved had nothing to do with Anderson's culpability.  Even if one rejects Anderson's contention that he did not know his acquaintance was carrying drugs, it is almost inconceivable that Anderson quizzed his rider about whether he was dealing more or less than fifty grams.  Chance, rather than some considered willingness to deal drugs in substantial quantities, explains why Anderson was sentences to ten years -- not five -- in a federal penitentiary. 

   By ignoring offender characteristics and levels of participation, Congress has created a system that treats lookouts and couriers as harshly as it does those who plan and reap the benefits of drug trafficking.  It is "the mules," poor and often naive couriers, that usually get caught. Judge Judith N. Keep provided an analysis of the situation in her San Diego area district: "'What we frequently see . . . are the mules. . . .  They often have no prior criminal record, just a financial crisis.  They take a chance and they get caught.'" An example of the type of defendants now filling America's federal prisons because of the mandatory minimum sentences are impoverished Nigerians who attempt to finance trips to the United States by agreeing to swallow and deliver condoms containing quantities of heroin. Judge Raymond J. Dearie of Brooklyn reported "'hundreds'" of such "'tragic'" cases in his New York courtroom, adding that these defendants were generally decent people who acted out of desperation. 

   Some federal district judges have been so upset at the prospect of imposing the severe mandatory minimum sentences on low-level couriers that they have devised ways to avoid doing so.  Judge Alfredo Marquez of California refused to impose a mandatory minimum sentence on a "mule" hired in Mexico to drive a car containing drugs to the United States.  Judge Marquez ruled that imposition of the five-year sentence would violate the defendant's due process rights under the Fifth Amendment.  Judge James Lawrence King of Florida had the responsibility of sentencing an eighty-three year old courier facing a mandatory ten-year sentence; instead, Judge King sentenced the man to less than two months in prison, saying that Congress never intended to imprison a man of his age for a decade or more. 

   Justice does not mean treating every case the same.  Justice depends on treating similar cases similarly.  There is no justice in giving identical sentences to both jaywalkers and kidnappers.  Nor is it just to punish Richard Anderson for driving an acquaintance to the Burger King as harshly as his passenger, who planned the drug deal and who expected to benefit greatly from its completion.  Professor Albert Alschuler has observed that  appropriate sentences depend upon circumstances that we cannot quite name." Generally, aggravating and mitigating factors are recognized in individual cases, but all consideration of them is precluded by the Anti-Drug Abuse law. 

   Why would Congress enact legislation certain to create victims of injustice like Richard Anderson?  The answer, of course, is not that Congress thought about people like Richard Anderson (or about eighty-three year old couriers, or desperate Nigerians) and cruelly and deliberately decided to punish them harshly.  Rather, the problem was that Congress did not consider carefully the human consequences of its decision.  The legislation was supported by conservatives and liberals alike, and there was no genuine floor debate on the mandatory minimum sentence provision.  Congressional records concerning recent legislation to adopt mandatory minimum sentences, for example, are virtually devoid of discussion as to how the new laws might affect certain categories of defendants less blameworthy than those "kingpins" whose examples peppered debates.  Few asked whether the laws might cause prison overcrowding, or whether potential overcrowding might exacerbate already dangerous prison conditions.  No one in Congress had the prescience to inquire whether the imposition of mandatory minimum sentences in certain cases could demoralize the best members of the judiciary, and even drive  some outstanding judges from the bench.  No one, it seemed, was willing to risk the political heat that could result from questioning the propriety of a tough sentence for drug offenders. Given that many members of Congress may have themselves violated drug laws, one might have expected more concern about tough mandatory sentences.  More than half of all high school seniors have smoked marijuana, as have Supreme Court nominees and former President Bill Clinton.  Even voices of moderation on the Anti-Drug Abuse bill, such as Senator Joseph Biden of Delaware, however, found it necessary to preface floor remarks with the suggestion that a nineteen-year old possessing two grams of marijuana "is not something to take lightly." 

   There was a time when Congress might have rejected simplistic solutions such as mandatory minimum sentences.  Political outcomes were at one time determined more by relatively stable coalitions organized along party lines. Television has changed the nature of politics.  Politicians depend upon short-term voter approval.  They ride along on the currents of the temporary enthusiasms of the day, dreading the possibility that a controversial position taken on principle might inspire an opponent to produce a negative thirty-second commercial at election time.  Many persons who at one time publicly opposed mandatory minimum sentences have changed their positions.  President George Bush, for example, while a congressman from Texas in 1970, argued that the elimination of mandatory minimum sentences "will result in better justice and more appropriate sentences." 

   The unwillingness to examine the human impact of mandatory minimum sentences under the 1986 legislation in large part stemmed from public demands for stern action against drug dealers.  Public pressure for tough new penalties for drug crimes was not surprising in view of the steady flow of alarmist headlines and stories about drug use that appeared in the mid-1980s.  A Newsweek cover story, for example, described  drug usage in America as an epidemic "as pervasive and as dangerous in its way as the plagues of medieval times."  It was only one of three Newsweek cover stories on drug abuse to run within a five-month period in 1986.  Network news shows ran almost daily stories on the subject, and drugs were the subject of news documentaries on prime-time television. 

   Interestingly, even the adoption of new draconian sentences in 1986 and 1988 did little to satisfy the public perception that drug laws were not tough enough.  The percentage of the public in favor of tougher drug trafficking penalties actually increased during the 1980s, from seventy-nine percent to eighty-five percent.  Such poll results coupled with a growing fear of the thirty-second negative campaign advertisement ("Senator Shmoe voted AGAINST new penalties for the drug traffickers that prey on our school children") help explain the politics of drugs. 

   The public that told pollsters that it wanted tougher penalties for drug dealers was not thinking of people like Richard Anderson.  Richard Anderson is like a porpoise caught in a drift net.  He was not what Congress wanted to catch, but he was caught nonetheless under its indiscriminate definition of drug trafficking.  No one -- not the Congress that passed the Anti-Drug Abuse Act, not the judges who must enforce it, not the public that said it wanted tougher penalties -- wants to see people like Richard Anderson spend ten years in already overcrowded federal prisons.  Unfortunately, however, he will. 

   The evil responsible for locking Richard Anderson away for ten  years lies in the unwillingness of the media and Congress to take seriously his plight and the plight of people like him.  The media has been more interested in hype than facts.  Stories of drug-related killings receive heavy media attention; seldom appears a headline that reads, "Nineteen Year-Old Drug Courier Gets Harsh Sentence." Meanwhile, members of Congress have been more interested in positioning themselves for reelection than in improving the quality of justice. 

   Someday we will declare a victory in our war against drugs, and reason may then return to our approach to drug trafficking.  The first signs of this happening are federally mandated studies on the effects of mandatory minimum drug sentences. These studies show prison overcrowding, growing health problems in an aging prison population, and large numbers of "small fish" receiving "big fish" sentences. The mandatory minimum sentencing will be repealed.  All wars, however, claim their victims.  The victims of the war on drugs will include people like Richard Anderson, who because of a one-time mistake in judgment, will have spent ten dreary years away from the places, friends, and family that make life worth living.