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.
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.