On July 15, 2003, Governor George Pataki unveiled a new proposal to amend the Rockefeller drug laws. On one issue, reduced sentences for newly convicted offenders, the Governor’s new bill would enact positive changes. Regrettably, the bill ignores or, worse, addresses in inadequate and even harmful ways, the other major components which must form the core of any comprehensive drug reform law.

The legislature can and must do better. For the past two years, the Assembly has passed legislation to comprehensively reform the Rockefeller drug laws (A.7078, Aubry). This legislation would:

• provide for judicial discretion in sentencing drug defendants;
• enhance drug treatment programs to help eliminate drug addiction;
• significantly reduce prospective sentences;
• provide meaningful sentencing relief to currently incarcerated offenders; and
• provide for tough targeted penalties against drug kingpins, violent drug dealers and drug dealers who prey on children.

The Assembly looks forward to working with the Governor and Senate to enact meaningful drug law reform and build on the positive aspects of the Governor’s new proposal. To accelerate this process, we believe the Senate and the Assembly should meet in a joint public conference committee on drug law reform at the earliest opportunity.

Room for Specific Improvements in the Governor’s Proposal

Judicial Discretion

A Rockefeller drug law reform bill must return significant discretion to judges, allowing judges to order tough and effective community-based drug treatment to appropriate non-violent offenders as an alternative to a mandatory state prison term. A 1997 Rand Corporation study found that dollar for dollar, drug treatment is fifteen times more effective at reducing crimes committed by drug offenders than mandatory minimum prison sentences. Yet under current law, judges have no discretion to order community-based drug treatment to first-time Class B felony offenders or any drug offender with a prior felony conviction.

More than 90% of the drug offenders in New York State prisons today are African-American or Hispanic, a figure which bears no correlation to the rate at which New Yorkers in these racial and ethnic groups commit drug crimes. These intolerable racial and ethnic disparities will not end unless judges are given appropriate discretion to tailor sentences to the facts and circumstances of each case. The Governor’s bill does not contain any provisions addressing this judicial discretion issue.

Enhanced Drug Treatment

Effective drug treatment requires resources. Diverting offenders from prison to drug treatment programs would save money and effectively rehabilitate many offenders. The resources which meaningful drug law reform would save in prison costs must be allocated, at least in part, to providing effective community-based drug treatment. Drug addicted offenders who are simply placed in prison and then released without effective drug treatment stand a significant chance of returning to drug use, committing new crimes and then returning to prison again. The cycle of addiction and crime can be broken only by eliminating addiction. But eliminating addiction requires hard work and the services of trained, professional drug treatment providers.

The Governor’s bill does not contain any provisions providing additional resources for drug treatment programs, thereby perpetuating the vicious circle of drug crimes and possible violence.

Significant Sentencing Reductions

New York’s draconian Rockefeller drug laws have resulted in unfairly long prison sentences for many non-violent drug offenders. They have also cost state taxpayers billions of dollars in prison costs to warehouse low-level non-violent addicts who would be better placed in long term drug treatment. Among many other onerous provisions, New York law currently requires a mandatory sentence of 15-25 years to life in prison for the possession of four ounces or the sale or attempted sale of two ounces of narcotics. These sentences must be reduced to appropriate levels to provide fundamental fairness to defendants charged with drug crimes.

The Governor’s bill contains many sentencing reductions which address this issue. These sentencing reductions arose from the collaborative work of the Governor, the Senate and the Assembly and should be enacted.

The sentencing provisions contained in the Governor’s bill must be improved, however, in several key respects. As drafted, the bill would provide no sentencing option, short of state prison, for first time Class B felony offenders, even those who possess a minuscule quantity of narcotics and have never before been convicted of a crime. Judges should be given other options in such cases. Moreover, the sentencing reductions in the bill are offset to a degree by new restrictions on eligibility for work-release, community-based drug treatment and participation in the “Shock Incarceration” program. These restrictions would undermine drug treatment programs which form an important part of the state’s efforts to combat drug abuse and have no place in a comprehensive reform bill.

Justice for Currently Incarcerated Drug Offenders

There are approximately 18,000 drug offenders in state prison today. The Governor’s bill would authorize approximately 500 of these offenders, those convicted of Class A-1 felonies without disqualifying criminal histories (roughly 3% of the drug offender population) to petition courts for sentencing relief. Moreover, even with respect to this relatively small group, difficult barriers towards meaningful judicial review of sentences would remain.

The bill does not clearly specify a right to appointed counsel when the offender seeking reconsideration of sentence is indigent. These defendants might thus be forced to litigate difficult resentencing motions of enormous consequence against experienced district attorneys without the assistance of a lawyer. Persons who were offered new sentences which do not actually reduce their prison time, moreover, could only appeal those trial court decisions to a higher court based on a legal standard which would likely mean that few appeals would ever succeed.

The thousands of non-violent drug offenders currently incarcerated in New York state prisons under the Rockefeller drug laws deserve justice and a chance to participate in the positive changes which any drug law reform bill would enact. We can and must do more to provide that opportunity.

Tougher Penalties to Fit the Crimes

The fundamental problem with the Rockefeller drug laws is not that they are too lenient. Under current law, the possession of a single grain of a narcotic (i.e., a quantity equal in size and weight to one grain of sand) with the intent to sell it subjects an offender to a prison term of up to 25 years regardless of whether or not any additional aggravating circumstances exist.

Penalties should be increased for violent drug dealers who use guns, drug dealers who prey on children and "drug kingpins" who run major drug trafficking organizations. To the extent the Rockefeller drug laws are made even harsher than they are today, however, these increased penalties should be carefully targeted to those egregious cases where longer sentences are warranted.

The Governor’s bill would encourage judges to impose "three strikes and you’re out" sentences of 8-20 years or 15-30 years on low-level drug addicts with multiple prior convictions. It would impose a new mandatory 3, 5 or 7 year additional sentence on drug offenders who were co-defendants with offenders who had access to guns, even if the co-defendant being punished had no knowledge that any gun was in the vicinity. It could allow several persons jointly engaged in a single drug sale to all be defined as "drug kingpins" subject to 30 year sentences. It would significantly increase penalties for drug transactions involving the Internet, treating them as much more serious crimes than transactions conducted over the telephone or in person.

New penalties should focus on violent and predatory conduct but not sweep up, in a wider net, less culpable offenders for whom tough and appropriate sanctions already exist. The Governor and the legislature should go back to the drafting table and craft such penalties. Otherwise, we may be back in several years, trying to undo new injustices which Governor Pataki, rather than Governor Rockefeller, has created.

The Work Left to be Done

While progress is being made towards reforming the ineffective Rockefeller Drug Laws, much more needs to be done. The Senate and Assembly should meet in a joint public conference committee to resolve differences in their approaches to the Rockefeller drug laws as soon as possible. We must also work, at the same time, with the Governor, embracing the positive changes he has proposed and coming to a final resolution on a comprehensive reform law.

More than two years ago, Governor Pataki promised New Yorkers "dramatic" reform of the Rockefeller drug laws. The unfortunate reality, however, is that the Governor has repeatedly proposed only tentative and incomplete steps – and missteps – toward that goal. Now is the time for the promise of comprehensive reform to be fully redeemed. We stand ready to work with the Governor and our Senate colleagues to make that happen.