The New York legislature is supposed to have finished a budget and gone home weeks ago, but with a budget still to be passed, the legislative session remains alive and so do faint hopes for passage of a bill that would reform the state's draconian Rockefeller drug laws. But the best chance of a legislative breakthrough in years appears to be fading. And that may not be a bad thing if the result is a mediocre bill that takes the steam out of the reform movement while failing to fundamentally alter New York's drug laws, say some voices in the drug reform community.
In January, Republican Gov. George Pataki announced with great fanfare that he was ready to get behind Rockefeller law reform. Chances only improved when state Assembly Speaker Sheldon Silver (D-Manhattan) climbed on the reform bandwagon, signaling an end to Democratic skittishness on crime issues. But Pataki disappointed a broad reform-minded constituency with a bill longer on law and order -- ending parole, tougher sentences for some marijuana crimes -- than on real reform. The Assembly Democrats belatedly responded with their own bill, which went significantly further in reducing sentences and restoring sentencing discretion to judges, a key demand of the growing reform movement (http://www.drcnet.org/wol/170.html#patakibill and http://www.drcnet.org/wol/177.html#newyorkdruglaws).
The differences have a real-world impact. In a study released earlier this month, the Legal Action Center of New York City examined how the different proposals would affect the 8,000 New Yorkers sent to prison for drug offenses last year. Nearly 5,000 would have been eligible for diversion into treatment under the Assembly plan; only 343 under the governor's plan. The report also noted the clear differences on funding for drug treatment: the Assembly proposal includes $55 million for prison drug treatment, while Pataki's plan allocates no money.
But now, because of bipartisan bickering over the budget, the differences between the two bills, and a lack of leadership from Assembly Democrats, the chances of any serious reform passing this year are growing dim by most accounts. But not in Sheldon Silver's. "There are a number of pieces of legislation that must be done," the Assembly leader told the New York Times in his last public comments on the subject earlier this month. "I am as optimistic we will achieve something." Assembly Democrats vowed at the time the high-level discussion would soon get underway between Silver, Gov. Pataki and Senate majority leader Joseph Bruno (R-Saratoga Springs).
According to Robert Gangi, head of the Correctional Association of New York (http://www.corrassoc.org), a venerable prison reform group that supports repeal of the Rockefeller laws, those talks are now underway. "Negotiations are going on right now behind closed doors," he told DRCNet. "It's a very fluid situation. We think the governor wants some sort of reform enacted that will not end up being attacked by editorial writers and the reform community as window dressing. But who knows what will happen?" mused Gangi. "It could range from nothing at all, to some sort of cosmetic reform, to a substantive reform, but one which still fall short of full repeal."
Nicholas Eyle of ReconsiDer (http://www.reconsider.org), a New York state grassroots non-profit dedicated to discussing alternatives to the drug war, doubts a bill will pass this year, and all the better, he told DRCNet. "Since neither the GOP nor the Democratic bill will pass in their present versions, there will be a compromise, but that will probably happen next year," said Eyle. "They'll compromise to get something not as pleasing as the Assembly bill and come up with something meaningless -- or worse."
A watered-down Rockefeller reform law could have pernicious effects, according to Eyle. "This is a dangerous thing," he told DRCNet. "If they pass something like this, with users pushed into treatment instead of those barbaric prison sentences, that means New York will have the image of a state with benign drug laws. We in the reform movement here in New York will lose a lot of the momentum we've gained, but people will still be going to prison. We will have created a system of mandatory treatment where they'll undergo residential treatment and then special probation with drug testing. And what happens when they fail? You can bet that scheme is not going to empty out the prisons," said Eyle.
"This is a messy situation. There is a split in the reform movement here. We're expanding the reach of the law, what Thomas Szasz called the 'therapeutic state,' by mandating drug treatment. For that reason, I can't get behind either of these proposals," Eyle explained."
David Leven, deputy director of the Lindesmith Center-Drug Policy Foundation (http://www.drugpolicy.org), told DRCNet that while the group could support the Assembly bill as it now stands, the bill does not go far enough. "We are a member of Drop the Rock," said Leven, "and while we do support the general thrust of the Assembly bill, we would like to see repeal. We could live with the Assembly bill," Leven continued. "It is a modest reform bill, which, if enacted without compromise, would certainly result in many more drug offenders being diverted into treatment, as well as reducing sentences for many others. We've been extensively involved to ensure that whatever legislation is enacted gives judges the most discretion to divert drug offenders into cost-effective treatment."
The Correctional Association's Gangi agrees that even the Assembly bill has problems, but still sees it as preferable to the status quo. "Our preferred outcome is repeal," Gangi told DRCNet. "We are part of the Drop the Rock campaign (http://www.droptherock.org), which calls for repeal of the Rockefeller laws. But the Assembly bill has some good and useful things in it; it is a substantive reform proposal -- unlike the governor's, which isn't worthy of the name."
Gangi said that the he remained concerned about the extent of real judicial discretion in the Assembly bill. "The problem is that it makes so many exceptions regarding cases where judicial discretion would be allowed. Our concern is that as long as those exceptions exist, DAs will take advantage of that loophole," Gangi warned. "They'll indict people for drug offenses that fall outside of the reform proposals; in that way DAs will still be able to control the process and undermine the intent of the reform."
Eyle's concerns go deeper. "We are interested in ending the drug war paradigm, but arresting people for possession and nonviolent drug offenses and sentencing them to treatment instead of prison is no paradigm shift," he argued. "The idea remains that drug users need to be corralled and fixed. The sentence might be different, but the coercive social control remains. Yes, for someone who's looking at 10 years in the joint versus 2 years of peeing in a cup, this looks good. But as a whole, these bills do not move us in a direction we want to go."
At this moment, the bills are not moving at all. Until the budget impasse is resolved, no real movement is likely, and that may not happen until August, said Gangi.