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Rockefeller Reforms Need Rehab

Steven Wishnia Apr 17, 2009

ILLUSTRATION: LOUJOE.COM

New York State has enacted major changes in its Rockefeller drug laws, which contain some of the harshest mandatory minimum sentences in the nation. The activists who’ve been trying to repeal those laws for years say it’s a very welcome move but doesn’t go far enough.

“I think it’s a really positive step forward. It is not the end of the Rockefeller drug laws, but hopefully, it’s the beginning of the end,” says Caitlin Dunklee of the Drop the Rock campaign, an umbrella group campaigning to repeal the laws. The group estimates that the new law might divert half the state’s convicted drug felons into treatment or other alternatives to prison.

The changes were put into the state’s budget as part of a March 25 deal among Gov. David Paterson, state Senate Majority Leader Malcolm Smith and Assembly Speaker Sheldon Silver.

The new law eliminates the mandatory minimum of a year in prison for first offenders charged with small-time dealing (Class B felonies, such as sale of up to a half-ounce of cocaine or heroin, or possession with intent to sell) and first or second offenders charged with lesser felonies (such as possession of a half-gram of cocaine or sale of an ounce of marijuana). It also expands drug treatment and other alternatives to incarceration. Second offenders charged with B felonies, who now face an automatic four-and-a-half to five-year sentence, might be able to get treatment instead of prison if they can prove they’re drug-dependent.

On the other hand, the bill retains the mandatory- minimum sentences for all other accused dealers, and only about one-eighth of the state’s 13,400 drug prisoners will be able to apply for reduced sentences. The bill also revives the 1973 Rockefeller law’s original 15-to-life sentences, this time for “kingpins” convicted of selling more than $75,000 worth of drugs.

Paterson is a longtime critic of the Rockefeller laws and was arrested at a civil-disobedience protest against them in 2002, but he has taken a more cautious stance since he became governor. According to spokesperson Marissa Shorenstein, he insisted that accused drug offenders who wanted treatment instead of prison would have to plead guilty first, on the grounds that the threat of prison would make drug users more likely to stick with treatment. The governor’s philosophy is “treat, don’t punish, but treat to be effective,” Shorenstein explains.

The state’s prosecutors largely opposed easing the law. And the Daily News called the proposed changes the “Drug Dealer Protection Act” and said they would unleash a crime wave.

Enacted in 1973 under Gov. Nelson Rockefeller, the laws mandated 15-years-to-life sentence for the sale of two ounces or more of heroin or cocaine or for possession of four ounces. The state enacted mild reforms in 2004 and 2005. Those reduced the 15-to-life sentences to eight to 20 years, but did not affect the 90 percent of drug prisoners convicted of lesser charges.

Critics charged that the laws were “unjust and racially targeted,” as Linda Dechabert, head of Exponents, a harm-reduction group working with drug addicts, ex-prisoners and people with AIDS, put it at the March 25 rally.

More than 90 percent of New York’s drug prisoners are black or Latino, and about 40 percent are incarcerated for possession charges. The racial disparities most likely stem from the ecology of the drug trade — ghetto street dealers are more visible and violent than discreet white-collar dealers — and the cumulative effects of racism in who gets stopped, who gets prosecuted and who gets imprisoned.

“It’s easy to arrest blacks and Latinos because they’re in a confined area,” notes Carl Dukes, 64, an ex-prisoner who attended the rally.

Activists developed four “pillars” for further-reaching reforms: restoring judicial discretion, expanding treatment and alternatives to prison, reducing sentences — and retro-activity — letting prisoners apply for the sentences they would have gotten under the revised laws.

By those standards, the new law does improve treatment services. It’s expected to provide up to $80 million more for rehab and alternatives-to-incarceration programs, such as the one run by the Kings County District Attorney’s office. New York has a harm-reduction system well positioned to take advantage of this, notes Gabriel Sayegh of the Drug Policy Alliance, as there are well-established programs for drug rehab, needle exchange, methadone maintenance and overdose prevention.

Most activists agree, however, that the bill falls short on judicial discretion and retro-activity. It also does not change the practice of determining penalties by the weight of the drugs seized rather than by the defendant’s role in the deal.

“It’s unfair. You’re caught with a little amount of drugs and you serve a long, long term in prison,” says former prisoner Ashley O’Donoghue. “It should be retroactive so the people who are still there can get a sentence that’s more suitable for what they did.”

O’Donoghue, now 26, was arrested in 2003 when two white college students he’d been dealing grams of cocaine to were nabbed and set him up for a two-and-a-half ounce sale, well above his usual range. Facing 15 years to life, he pleaded guilty to a B felony and served five years of a 7-to-21-year sentence.

“We’re not saying people should not go to prison,” says Robert Gangi of the Correctional Association of New York, the prison-reform group behind Drop the Rock. “We’re saying the judge should decide.”

Comedian Randy Credico, a longtime drug-law activist who attended the March an honest politician,” said the changes are inadequate because retroactive resentencing is not “automatic.” Less than half the 1,000 prisoners eligible to apply for shorter sentences under the 2004 law actually got them.

Nicholas Eyle of Reconsider, a Syracuse based anti-prohibition group, is also not enthusiastic. “I don’t want to sound like I don’t support the change, but I’m not that excited,” he says. “I’m not a fan of mandatory treatment.” Though rehab is preferable to prison, he says, most people arrested on drug charges are not addicts.

“If you want to save money and reduce crime,” Eyle says, “end prohibition. If you question the fundamentals, you have to conclude that prohibition doesn’t work.”

Many activists believe that upstate Republicans oppose reducing drug sentences because prisons are one of the few sources of steady jobs in the region. When the Rockefeller laws passed, New York had 18 prisons. From 1973 to 1999, it built 51 new ones.

Eyle disputes that notion. Though some rural legislators have complained that closing prisons would cost jobs in their districts, he says they’re not a “strong enough lobby” to preserve the drug laws.

For others, economics abetted change. At $45,000 per inmate, Speaker Silver said in a statement, it costs New York more than $500 million each year to imprison drug offenders. The minimal changes enacted in 2004 have saved the state $100 million, he added.

Nonetheless, some politicians in New York State see the issue as one of principle. “My Assembly colleagues and I continue in our pledge not to give up our fight for greater reform of New York State’s ineffective and imprudent drug laws,” Assembly Corrections Committee Chair Jeffrion Aubry (D-Queens), a longtime advocate of repealing the Rockefeller laws, said in a statement after the deal was announced. “While today’s agreement brings us closer to our goal, we recognize the need to do more.”