Pataki Fleshes Out Rockefeller Drug Law Reform Package 1/26/01

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In his State of the State address earlier this month, New York Republican Gov. George Pataki announced his intention of reforming the state's harsh Rockefeller drug laws, with their long, mandatory sentences for relatively small-time offenders (http://www.drcnet.org/wol/167.html#pataki).

At the end of last week, the tough-on-crime governor presented his package, the Drug Law Reform Act of 2001. In a January 17th press release touting the package as one that "balances the need to crack down on drug kingpins, armed drug felons and dealers who prey on children, with commonsense proposals to address overly-severe provisions of the Rockefeller drug laws," the governor laid out his 10-point plan:

  • Sentence reductions for Class A-1 drug offenses from the current 15-years-to-life to 10-years-to-life, with a chance to win a reduction to 8 1/3-years-to-life on appeal. This provision would be retroactive, with all A-1 drug offenders currently serving time being able to appeal. Courts could also, with prosecutorial approval, sentence a first-time Class A-1 offender as a less serious Class B offender, with a minimum 14-month sentence.
  • Determinate sentencing for repeat drug offenders. Under current law, repeat offenders face indeterminate (i.e. 15-to-life) sentences. The governor's proposal creates new mandatory minimum sentences beginning at about the same length of time as the low end of current indeterminate sentences.
  • Court-supervised residential drug treatment instead of mandatory prison sentences for Class C, D, and E nonviolent drug offenders. Judges could divert such offenders into a minimum six-month treatment program, with success rewarded by probation and failure with prison.
  • Prosecutor-sponsored programs to divert drug offenders from prison into treatment. Repeat offenders ineligible for other programs could, upon the prosecutor's consent, enter treatment for up to 18 months, with charges dismissed upon completion of the program. Those who fail go to prison.
  • "Drug Kingpin Reform" that would make persons who exercise "leadership roles" in a conspiracy with three or more persons to commit a Class A-1 drug felony eligible for the stiffest sentences, 15-years-to-life.
  • A new violent felony offense that increases penalties for drug offenders in possession of a firearm. Under current law, firearms possession warrants 1-to-3 years, but for drug offenders under the new law, a 5-year mandatory sentence.
  • A new offense singling out Internet drug sales would bump any drug sales offense up to the next class of felony if the Internet were used.
  • Enhanced penalties for using a minor in a drug transaction. The proposal would bump any drug sales offense up to the next class of felony if a minor were involved.
  • A "pre-release transitional facility" to provide transitional planning services for drug offenders returning to New York City.
  • Random quarterly drug testing for all drug-using parolees.
The Pataki plan comes as New York holds some 21,000 drug offenders behind bars, 30% of the current prison population and more than the entire prison population two decades ago. The governor's office estimates his proposals would result in 5,500 drug offenders being diverted from prison annually. (By way of comparison, the California prison system, with roughly twice the prisoners New York has, will divert 35,000 drug offenders into treatment each year under its voter-initiated "treatment not jail" reforms.)

In a battle of the press releases, State Assembly Speaker Sheldon Silver (D-Manhattan), immediately poo-poohed Pataki's proposals as "a step forward, but not dramatic change" and challenged the governor to work with the Assembly for "effective reform."

"In his State of the State address, the governor called for dramatic Rockefeller drug reform and at the time, I welcomed him to the bargaining table," said Silver. "His proposal today doesn't go as far as we need. The Assembly Majority stands ready to work with him, the Senate and Court of Appeals Chief Judge Judith Kaye to move this discussion forward."

Taking care to poke at partisan scabs, Silver noted the Assembly's Democratic majority had "long criticized" the state's harsh mandatory sentences for nonviolent drug offenders. He did not explain why the Assembly's alleged distaste for the Rockefeller laws had not heretofore been translated into action.

"I am pleased that the governor realizes that we must reform these laws now," added Assemblyman Joseph Lentol (D-Brooklyn), chair of the Assembly Codes Committee. "It appears that we are all in the same boat in recognizing that the Rockefeller drug laws have been an incredible failure that have cost taxpayers billions of dollars and have done nothing to rehabilitate or provide treatment to drug offenders."

Silver said a framework for meaningful reform must include increased judicial discretion, reduced mandatory minimum sentences, expanded treatment programs, and an emphasis on crime prevention instead of prison building.

Silver's framework sounds as if he has been reading from the same page as drug reform advocates contacted by DRCNet.

"This is a good first step, but only a first step," said Anita Marton, senior attorney for the Legal Action Center (http://www.lac.org), a New York-based nonprofit law firm that advocates for people with HIV/AIDS, addictions or criminal records. "This will need to go a long way before it addresses the changes necessary for meaningful reform."

"First, we need to return discretion to judges," said Marton, "and for the first time, Pataki has a proposal that allows for discretion in some cases. But those are the C, D, and E class possessors, and most people get charged with more serious Class B possession with intent felonies. This chips away at discretion, but still leaves large populations untouched."

"Second, sentences should be reduced to be proportionate with other nonviolent crimes," Marton continued. "Here, Pataki has marginally reduced some sentences, but he is also very cleverly linking it to eliminating parole by moving to determinate sentences, and in some cases he actually exposes offenders to increased penalties. We don't think sentence reductions should be dependent on ending parole, but those sentences still need to reduced to be proportional."

"Third, we need retroactivity," Marton explained. "Pataki does propose retroactivity for those 600 people serving those 15-to-life Class A-1 sentences, but it should be much broader. Anyone who would be eligible for a lower sentence under the new proposal should be able to petition for a new sentence."

"And finally," Marton continued, "the proposal needs to provide funding for treatment and alternatives to incarceration. Our programs are at 90% of capacity now; there's not a lot of room for new offenders, and we're talking about 5,500 annually. Increases in funding for treatment and alternatives will be crucial, and there are none in his proposal."

Robert Gangi, head of the Correctional Association of New York (http://www.corrassoc.org), also sees Pataki's proposals as "an important first step."

"These proposals represent an important political development," he told DRCNet, "because the governor has identified himself as a drug war reformer, and that will open debate on the issue."

"But there are defects, and we are looking at the Democratic-controlled State Assembly to offer a counterproposal that has greater judicial discretion, a greater degree of retroactivity, and increased funding for alternatives to imprisonment," said Gangi. "We assume the Democratic proposals will reflect their statements in their initial critique of Pataki's proposals."

Gangi saw several factors that made it possible for Pataki to move. "That he has the tough on crime image made it easier," Gangi argued. "And the public is more and more disaffected with the drug war's excesses. As a result, Pataki has made a political judgment that it is safe to come forward."

But, the Legal Action Center's Marton points out, the battle is just beginning. "There is a loose coalition for reform on these issues, and we will all, in our own ways, be trying to get the grassroots drumbeat going louder," she told DRCNet.

"We're trying to work as one voice," she said, "to avoid confusing the legislature with too many advocates with too many different plans. The Campaign for Effective Criminal Justice, led by former legislator John Dunne, a Rockefeller law supporter in his time, will be leading the way in what will be a coordinated campaign."

"I'm cautiously optimistic," Marton confessed. "We'll be up in Albany a lot."

-- END --
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Issue #170, 1/26/01 Strange Days in the Land of Enchantment: Drug Reform Groups Play Key Role as Battle Over Gov. Johnson's Package Heats Up | Pataki Fleshes Out Rockefeller Drug Law Reform Package | Clinton Commutes a Few More Drug Sentences at Last Minute | Columbia: New Administration in Washington, Same Old Game? | Chapare, Bolivia Community Charges Torture and Human Rights Violations by US-funded Anti-Drug Force | New RAND Study Finds Federal Agencies Overstate Drug Treatment and Prevention Spending | Belgium Decriminalizes Marijuana for Personal Use, Users Must Grow Their Own or Buy it in the Netherlands, Says Government | New Zealand Parliament Again Reviewing Cannabis Laws | Bush on Drugs: The New President Speaks Up to CNN | Calling All Activists: Ashcroft, Hemp | The Reformer's Calendar: LA, Philly, Portland, New York, DC, SF, Minneapolis, St. Petersburg, Fort Bragg, Miami, Amsterdam, New Delhi
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