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Feature: Is This the Year New York's Rockefeller Drug Laws Will Be Repealed?

Submitted by Phillip Smith on (Issue #571)
Consequences of Prohibition

For more than 35 years, New York state has had the dubious distinction of having some of the country's worst drug laws, the Rockefeller drug laws passed in 1973. While pressure has mounted in the past decade to repeal those draconian laws, the reforms made to them in 2004 and 2005 have proven disappointing. But now, in what could be a perfect storm for reform, all the pieces for doing away with the Rockefeller drug laws appear to be falling into place.

June 2003 ''Countdown to Fairness'' rally against the Rockefeller drug laws, NYC (courtesy 15yearstolife.com)
New York is now governed by an African American, David Paterson, who was arrested in an act of civil disobedience against the Rockefeller drug laws and who has vowed to reform them. The Democratic leader of the state Assembly, Sheldon Silver, is on board for serious reforms. And for the first time in years, Democrats also control the state Senate. Add to that mix the budgetary crisis in which the state finds itself, and it would appear that this is the year reform or repeal could actually happen.

But it hasn't happened yet -- no bills have even been filed -- and there is opposition to real reform, mostly from district attorneys, representatives whose upstate districts depend on prisons as a jobs program, and the law enforcement establishment. Those folks may latch onto pseudo-reforms as a means of blocking real reform.

Their handbook could be the State Sentencing Commission report issued this week. That report, commissioned by Gov. Paterson last year, calls for marginal reforms in sentencing and parole, as well as limited judicial discretion, but leaves too much power in the hands of prosecutors, said reform advocates.

"The Sentencing Commission proposal was positive in that it would return some judicial discretion in limited cases," said Caitlin Dunklee, coordinator of the Rockefeller repeal coalition Drop the Rock. "But we hope and will press for more sweeping and meaningful reform of the Rockefeller laws. This report was the product of a commission composed of many prosecutors and corrections people, and it does not go far enough."

"I can't believe at this particular moment that they would put this out," said Gabriel Sayegh of the Drug Policy Alliance (DPA) New York state office. "Not only does it not include real reforms to the Rockefeller Drug Laws, but it takes a step backward," Sayegh continued. "The commission acted as though the political climate we're in is not happening. It's like they drafted this thing from a cave."

DPA wants judicial discretion and treatment programs, which are included in the Sentencing Commission report, Sayegh said. "The problem is that when you dig into the details of the recommendations, what they are actually saying is that their version of judicial discretion, expanding treatment, and expanding diversion opportunities are all crafted out of the prosecutorial perspective. Prosecutors would maintain their leading roles and their diversion criteria would eliminate half the people from even being considering for it. That's the substance of our objections to the report," Sayegh said.

While Sayegh criticized Gov. Paterson for allowing the commission to "continue with its bumbling," he also took heart from Paterson's non-response to the report's release. "Paterson was going to hold a public event around the release, but that got changed to a press conference, and then even that got cancelled," he noted. "We see that as a good sign, an indication that he will not lend his backing to this report."

Instead, Sayegh said, a much better starting point would be the report issued two weeks ago by Assembly leader Sheldon Silver, Breaking New York's Addiction to Prison: Reforming New York's Rockefeller Drug Laws. In that report, Silver laid out the "principles" of reform:

  • Ilegal drugs should remain illegal. Adults who sell drugs to children, individuals who use guns in drug deals, and drug kingpins deserve harsh punishment.

  • Mandatory minimum sentences for low-level offenders must go. Mandating that judges sentence drug users and very low level street sellers to state prison has not impacted crime or reduced addiction but, rather, has led to a massive increase in New York's prison population with a disproportionate number of Latinos and African-Americans being incarcerated.
  • Real judicial discretion means an end to mandatory minimum prison sentences for Class B felony drug offenses and second time, nonviolent drug offenders and the placing of an equal emphasis on alternatives to incarceration and treatment. Except for the most serious crimes, judges in New York already have the discretion to fashion appropriate sentences for criminal acts. Judges should have the ability to make an informed decision whether circumstances warrant imposing a state prison sentence in drug crimes just as they do in cases of many assault, larceny, property damage and any number of other crimes.
  • District Attorneys should continue to play a key role in the process, but they should not be able to veto a judge's discretion. Indeed, to the extent there are district attorney-sponsored initiatives, such as Drug Treatment Alternative to Prison (DTAP) programs that have proven success rates with the limited populations they serve, judges will have the discretion to continue them.
  • Existing maximum determinate sentences for first and second class B level felony and below offenders should be maintained so that if a judge decided circumstances warrant, those who commit the crime will do serious time.

Partial reforms like those achieved in 2004 and 2005 are not going to cut it, said Caitlan Dunklee. "The reforms in 2004 and 2005 failed across the board... the only positive thing about them was that a few hundred people got to go home to their families, but they failed to address the underlying inequities of the Rockefeller drug laws. Specifically, they failed to return any discretion to judges, perpetuating the one size fits all justice that has led to huge levels of incarceration in New York."

The 2004 and 2005 reforms can be judged by their fruits. According to a Drop the Rock 2008 fact sheet, 5,657 people were sent to prison in 2004 for nonviolent drug offenses. That number increased to 5,835 in 2005, 6,039 in 2006, and 6,148 in 2007. About 40% of drug offenders behind bars in New York, some 5,300 people, are doing time simply for drug possession. And more than half of all drug offenders behind bars are doing time for the lowest level drug felonies, which involve only tiny amount of drugs. For example, it takes only a half-gram of cocaine to be charged with a Class D possession felony. More than 1,200 people are currently locked up for that offense.

So, is 2009 the year that real reform (or outright repeal) of the Rockefeller drug laws will happen? DPA thinks so, and held a conference two weeks ago to help make it happen. New Directions for New York: A Public Health and Safety Approach to Drug Policy brought together numerous drug policy stakeholders in an effort to break the grasp of the criminal justice template on drug policy.

"This was the first time in state history where we had stakeholders ranging from the Medical Society of New York to needle exchange providers to people who actively use injection drugs and do outreach to reduce HIV to academics, prosecutors, and elected officials," said Sayegh. Although New York has good drug policy programs -- harm reduction offices, overdose prevention strategies in place -- the overall discussion is still framed too much by the criminal justice perspective, Sayegh said.

"There is an apparatus in place to lead the charge for more progressive drug policies, but the discussion is framed by the Rockefeller laws," he said. "At this conference, stakeholders who are focused on the Rockefeller laws met with groups who focus on treatment, harm reduction, and medical research. We used the four-pillars approach pioneered by Vancouver, which for many people was a new concept. This allowed them to look at drug policy and reform from a new conceptual perspective, and that's part of what will bring about change."

Sayegh is guardedly optimistic about the prospects for reform this year. "In the past, we hadn't been able to move forward because the prosecutors controlled the language and logic of the debate," he noted. "But now, we can provide the legislature with new language and a new framework, the logic of public health, not criminal justice. This will make the legislature much more willing to move on reform proposals. Who doesn't like public health?"

"I'm very optimistic," said Drop the Rock's Dunklee. "I think we'll see a progressive piece of legislation get passed this year that will include meaningful restoration of judicial discretion in drug cases. Hopefully, it will also include an expansion of funding for alternative to incarceration programs like job training and drug treatment."

Not everyone was so sanguine. "I'm optimistic that something will happen, but I don't think its going to be as profound as everyone would like," said Randy Credico of the William Moses Kunstler Fund for Racial Justice, which has been part of the Rockefeller repeal effort for years. "That's because there is no street movement anymore, not a lot of grassroots pressure.

While mobilizations in 2004 and 2005 put tens of thousands of people on the street calling for reform, the minor reforms achieved then took the steam out of the mass movement, Credico argued. "Some people thought incremental change would work then," he said, "but we said it's better to get no loaf than half a loaf. That way, the pressure would remain and build. But we got half a loaf, and four years later, all these guys are still in jail and all the air has gone out of the movement."

"And it's not just the Rockefeller drug laws -- we need to completely overhaul the criminal justice system, from sentencing to the appointment of judges to judge-shopping by prosecutors to racial profiling to banning stop and frisk searches. People need to focus on the overall criminal justice system, or just as many people will be going to prison as we have now."

Drop the Rock's Dunklee begged to differ with Credico over the state of the mass movement for reform. "Drop the Rock is the statewide campaign for repeal, and we haven't gone away," she said. "There is a movement. The 25,000 signatures we've gathered on our petition for repeal is a sign of that. Last year, we took more than 300 people up to Albany, and we will do it again this year."

Still, Dunklee conceded, the partial reforms of 2004 and 2005 did take a lot of air out of the movement. "The media spun that like they were real reforms, and that did weaken the movement," she said. "But in terms of movement building, we still find it easy to organize around this issue because people are so pissed off. I think there is still a lot of energy there."

That energy will be needed in the coming months. While New York's budget mess will occupy legislators for the next few weeks, they will eventually turn to the Rockefeller law reforms. No bills have been filed yet, but they are expected shortly. And hearings are set for May. This year's battle to repeal the Rockefeller drug laws is just getting underway.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.

Comments

newageblues (not verified)

need jobs guarding them. How can these people look at themselves in the mirror? All these supposedly conservative folks who throw their principles out the windows and depend on government handouts in the form of bogus jobs guarding prisoners who committed bogus crimes.
They've convinced themselves that using cannabis is a real crime, as bad as drunk driving, and growing your own weed (felony) is as bad a crime as drunk driving murder.

Fri, 02/06/2009 - 4:06am Permalink
Anonymous (not verified)

Period.
Sylvia Ma. Valls
Valle de Bravo, Mexico
(where I moved when Ronald Reagan was elected to the presidency of the USofA... Decided I did not want to grow old in a country that could elect such a bad actor to play such a part... )
Illegal drugs should NOT remain illegal... for the sake of sanity, our well-being and our overall HEALTH, MENTAL, PYHYSICAL, SPIRITUAL...

Fri, 02/06/2009 - 1:42pm Permalink
Anonymous (not verified)

Those of us who use cannabis as a mild medication or to recreate see only madness in the drug war. In the sixtees and seventies before the insanity of conservative politics gripped our nation people could gather in small groups to smoke peacefully. We enjoyed each others company smoking a joint or two. We laughed and listened to music. We shared a sense of communion. The euphoria was conducive to a deep spiritual connection to our environment and the world around us. If you got caught with a small amount of weed the cops would often dump it out on the gound and tell you to hit the road. Slowly but surely the insidious and outrageous propaganda about pot began to take hold .It was fueled by the wave of hypocritcal conservatism that sought harsh punishment for anyone who disagreed with their version of the world. The mentality that says "money is God" arrived with a vengence. It's a belief that the only reason you are alive is to consume and exploit the earth and other people for personal enrichment. It is a sickness that's always been around like the flu. It comes in waves. It's literaly a disease. It's a mental disorder based on fear, parenoia and lack of self worth. It says he who dies with the most toys wins. These people couldn't possibly be more wrong or bigger loosers! They're the same people who created this prison industrial complex. It's an iron fisted iron clad way to exploit the poor and the defenseless. It's shrowed from public view by a vast system of judicial and government secrecy. Hundreds of billions of dollars are spent "secretly in plain sight" to develop prison complexes; legal money trees for defense lawyers prosecutors bailbondsmen prison guards and construction compaies like McCarthy and all the rest. They have militarised the police. That industry of tactical cloathing, swat weapons, survielence equipment, is costing us billions of tax dollars. In a world where we need police to arrest and prosecute the Burnie Madoff's Wall Street thugs and Ben Ladins we can ill afford to be squandering this kind of money. The drug war has widened the devisions between racial groups and destroyed the lives of millions of decent loving people. It has far reaching affects on our society that haven't even been contemplated by simple minded conservatives. They have forced their view on us for too long. The time to cast them out and reform our society has come. It is essential to the survival of our democracy.

Sat, 02/07/2009 - 9:14am Permalink
Moonrider (not verified)

In reply to by Anonymous (not verified)

"First kill all the lawyers."

There is some truth to that outcry. We have allowed the lawyers to take over our lawmaking bodies and so the laws reflect their desire to make life so complicated for individuals and businesses that they and their brethren who are not in politics will always have sufficient work.

We need to stop electing lawyers to offices other than AG positions. They get into congress or state legislatures and then write all these laws and regulations in legalese so J&J6P don't have a clue what it really means. Next election find out which candidates are lawyers and refuse to vote for them, whether they are new candidates or incumbents. Get the lawyers OUT of our lawmaking bodies so that our laws will be simple and direct rather than convoluted and incomprehensible.

And join DownsizeDC:
http://www.downsizedc.org/etp, use their help to contact your "representatives" in congress and urge them to pass the OSTA, WTL, and RTB acts, as well as the mj legalization/decrimn bills. This organization is trying to build an army of downsizers to get congress back under control of the people.
and Govit, too:
http://www.govit.com/Default.aspx
This one is new to me but looks to be both fun and helpful.

I'm pro-choice on EVERYTHING!

Sat, 02/07/2009 - 5:29pm Permalink
Anonymous (not verified)

To the folks at Kelogg. Your company has made a poor decision that is going to generate a great deal of unfavorable publicity. The other companies that Michael Phelps contracted with made the right decision to overlook what amounts to a ridiculous tempest in a tea pot. This amazing man is the most decorated Olympian in U.S. history and has represented this country in the very best tradition of sportsmanship. He is an adult who momentarily blew off a little steam at an activity enjoyed and practiced by millions of Americans. These people despite the disgraceful propaganda are mostly decent hard working morally strong Americans. They are intelligent caring successful people from all walks of life. I cannot continue buying products from a company that is so fickle in it's support of such a great athlete and great American hero. Apparently your so worried about your image that you have to bail at the slightest hint of controversy. Bad show!
Apparently it doesn't bother you that you are the purveyors of one of the leading causes of diabetes, tooth decay and obesity. I speak of course of your multitude of products laden the the hilt with sugar and preservatives and marketed directly to young children. You should be ashamed and should rethink your decision to support Michael Phelps. Those who live in glass houses shouldn't throw stones

Sat, 02/07/2009 - 9:21am Permalink
Anonymous (not verified)

Q. So how's m.p. any different then the assholes that hunt us down for profit?
A. He's not! Worse he's apologetic for doing nothing wrong... for profit!

Q. What if m.p. was photographed hammering down an alcoholic drug?
A. That's all in good cheer... of course! Because getting 'buzzed' on the man-made alcoholic drug is not the same as getting high on the natural drug marijuana.... yeah right!

It's all really about 'consumption capitalism' and the mighty dollar... not common sense!

And boycott and fuck kellogs too.... they're just jealous marijuana is the #1 cash crop in amerika... not corn!

Phelps sounds more like an apologetic bitch then a man worthy of being a roll model... unless your'e looking for a roll-over model that doesn't question authority... while in the pursuit of profits!

Atleast he's not as pathetic as many others, including our drug using - and law abusing politicians - who whine about their weakness on Friday, pray for forgiveness on Sunday, then check themselves into reehab on Monday. That's how real christians - just do it!

Sat, 02/07/2009 - 3:14pm Permalink
Anonymous (not verified)

Our health care and the drug war are the first things that have to go , there are millions of people that will try and do anything to get out of the daily pain they are in . They have complete control over all of us that are injured. If you had to pay the prices these thieves are charging you`d think a drug dealer was your best friend. Thank god I have the means to pay for my Insurance.

Mon, 02/09/2009 - 1:22am Permalink
Anonymous (not verified)

IN OREGON MILLS ARE CLOSING DOWN JOBS ARE BEING LOST AS LOCAL STATE AND FEDERAL CULT LEADERS PROHIBIT THE MEDICAL MARIJUANA PROGRAM FROM GROWING ENOUGH LARGE MEDICAL CANNABIS PLANTS TO MAKE LUMBER AND FIBERBOARD. EVEN THOUGH LUMBER AND FIBERBOARD MADE FROM MEDICAL CANNABIS PLANTS PROVIDE AN EQUAL TO THREE TIMES MORE WOOD PRODUCTS AS WELL AS STRONGER LONGER LASTING ALL AROUND SUPERIOR PRODUCTS EVERY YEAR. YES EVERY YEAR! ANNUALLY COMPARED TO TREES WHICH TAKE ALOT OF YEARS BETWEEN SUSTAINABLE HARVESTS. LOCAL STATE AND FEDERAL INSIDER TRAITORS NEED TO STOP TAKING ORDERS FROM HEARST MAGAZINES,DUPONT,MONSANTO,ETC,AND THE REST OF WALL STREET INSIDER TRAITORS AND ALLOW ORGANIC FARMERS TO GROW ENOUGH HUGE MEDICAL MARIJUANA PLANTS TO HAVE A SUPPLY FOR PATIENTS WHILE USING THE LEFTOVER STEMS TO MAKE LUMBER AND FIBERBOARD. THATS NOT TO MUCH TO ASK. JUST GIVE US OUR JOBS THAT ROCKEFELLER STARTED STEALING IN 1903 WHEN HE BRIBED LOCAL STATE AND FEDERAL POLICE AND POLITRICKTIONS TO PROHIBIT AND VIOLENTLY ATTACK LOCAL ORGANIC FARMERS AND MERCHANTS AS A WAY TO KEEP LOCAL ECONOMIES FROM PARTICIPATING IN THE GLOBAL ECONOMY. EVERYONE KNOWS ALCOHOL AND CANNABIS PROHIBITION ARE NOT TO STOP PEOPLE FROM IMBIBING/SAMPLING .ALCOHOL AND CANNABIS/DRUG PROHIBITION ARE HERE TO KEEP LOCAL ORGANIC FARMS FROM COMPETING WITH GIANT PETROCHEMICAL BASED CORPORATIONS AND TIMBER LAND OWNERS LIKE RANDOLPH HEARST,CHEVRON,EXXON,ETC,ETC. IN OTHER WORDS WHEN THE COPS SIDE WITH GLOBAL SYNTHETIC PRODUCT CORPORATIONS AND MAKE LOCAL ORGANIC CROPS ILLEGAL TO GROW FOR ALL THE FOOD,CLOTHING,SHELTER,MEDICINES,AND FUEL PRODUCTS FOR A DECENT SUPPLY,THE VIOLENCE INSERTED BY AUTHORITY FIGURES VIA PROHIBITIONS RAISES THE STOCK MARKET MONETARY VALUE WHILE GIVING THE POLICE WHO ENJOY BEING BULLYING DICTATORS COMPLETE TERRORIST GOVERNMENT LIKE POWER . EVERYONE KNOWS THE WHOLE PROHIBITION IS THE VEHICLE FOR BULLIES TO HAVE LEGAL ,PHYSICAL,AND MENTAL POWER OVER THE COMMON PERSON WHILE INSIDER TRADING THE STOCK MARKET FOR ARTIFICIAL PROFIT VIA FRAUDULENT LEGAL SYSTEM INSTALLMENT. SO GIVE US OUR JOBS BACK ! OH YEAH HEY ROCKEFELLERS! LOCAL GRANGE CO-OPS ARE NOT TERRORISTS ITS YOU ROCKEFELLERS WHO ARE TERRORISTS FOR ATTACKING LOCAL GRANGES AND ORGANIC FARMERS BY BRIBING THE FEDS TO LABEL LOCAL SUSTAINABLE FOLKS AS TERRORIST FOR GROWING CROPS WHICH INTERFERE WITHE YOUR SYNTHETIC WALL STREET TRAITOR RUN DICTATORSHIP SINCE 1903.

Tue, 02/10/2009 - 4:16pm Permalink
Anonymous (not verified)

A friend of mine got busted for growing her own weed and is currently waiting for the verdict while the pot dries. She is a grandmother with several severe health conditions for which she was using cannabis. Recently she has gotten her photo on the front page of the local newspaper with a fairly sympathetic article written, including her appropriate answers to questions by her interviewer to bolster her case for medicinal use. Though I've not had any contact with her I'm not surprised by this turn of events. I should say that this is in Ohio where possession has been decriminalized for some time, but growing, especially the large amount she has grown, is, I suppose, another matter from the law's point of view. I've been told they are going to weigh the total amount: big, woody stems and all! (WTF) Anyway, I think she has a good chance of staying out of prison, but I don't know enough to say that with much certitude.
The poster above says: no one is in prison for growing their own weed! I find this difficult to believe, especially in states where it isn't decriminalized. Like New York. Could somebody please set the record straight here?

Wed, 02/11/2009 - 6:58pm Permalink
Anonymous (not verified)

I believe that prisoners with a drug-dependency problem should receive the adequate treatment, a path to rehabilitation. If the prison system fails to provide this treatment to the prisoners, both for the system and the community get affected, since the prisoner would return to his/her community unrehabilitated and unprepared for life on the outside... this is certainly counterproductive. Human Rights Watch just published a very interesting article about New York inmates with substance-use problems and the way the system is dealing with them.
http://www.hrw.org/es/news/2009/03/24/new-york-stop-sending-prison-drug-users-box
The problem is very real, and it is urgent that authorities and government do something about it.

Wed, 03/25/2009 - 12:34pm Permalink

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