|Drug War Chronicle:
Were you still in the Assembly when the Rockefeller laws passed, and if
so, did you support them at the time?
Judge Jerome Marks:
No, I was no longer in the Assembly by then, but I probably would have
voted against those laws if I had been. Of course, now even some
of the Rockefeller laws' original sponsors, like then state Sen. John Dunne,
now oppose them, with Dunne being an especially prominent voice.
That is unusual -- usually an effort to change a law like that comes because
a different party has come to power. But when you enact a law, you
can't always tell how it's going to work out. I think that's why
Dunne and the others are all now very much opposed to the way this law
has worked. I think even Nelson Rockefeller would be opposed to this
law if he were alive today.
Chronicle: When did
you start having problems with the Rockefeller laws?
Marks: I was doing
civil court, but when I transferred over to the Supreme Court I started
getting these drug cases. I would have these cases in front of me
where if people had sold over two ounces of drugs or possessed over four
ounces, they were looking at 15-25 years-to-life. That's the same
sentence as murder, and it's the only nonviolent crime with that type of
sentence. Most of the time, prosecutors would make an offer for a
guilty plea, and I would pressure defense lawyers to accept the plea bargain
because the gamble was too great. Lose and you're going away for
15 years at least. Those drug convictions were easy to prove -- they
had professional witnesses, police officers who testified they made a drug
buy or watched it take place. You don't have that in murder or rape
trials, for instance. Even if you're innocent, it's easy to accept
I never had to sentence anyone
to 15-to-life because they always accepted the plea bargains, but I was
increasingly unhappy with the law. I've been a lawyer since 1940,
and I can tell you that as a prosecutor, I wasn't neutral, I was gung-ho.
It's the same thing with defense attorneys. The only one who is neutral
in this process is the judge; he's the one who should set the sentence.
I would see things like the case of Darrell Best, who was offered 1½
to 4½ years. He went to trial and got 15 years. I had
to ask myself how a prosecutor could justify sending him to prison for
15 years when he had just offered 1 ½ to 4 ½ years.
Chronicle: Were you
hearing similar concerns from other judges?
Marks: Not really.
There wasn't a lot of time for judges to talk because in the criminal division
business was very good and we were very busy. There was some concern,
but there is not much the judges can do, except in the appellate courts,
and the Court of Appeals found the law to be constitutional in 1975.
As judges, we were bound by what the appellate court ruled.
Chronicle: You retired
from the bench in 1992. How did you keep involved after that?
Marks: I had been a
lawyer for many, many years and I'd had enough. I decided to take
it easy, travel with my wife, things like that, but I got bored.
I got in touch with a referral organization, and then went out to Riker's
Island lecturing to prisoners about the dangers of drugs. I did the
same thing in high schools. In 1994, I was reading the New York Law
Journal and read about the case of Angela Thompson. She was 17, had
come up from the South after her parents separated and the grandma who
was taking care of her died. Her uncle brought her to New York.
Unfortunately, he was a drug dealer in Harlem. He had five prior
convictions, two of them felonies, he didn't want to be going away for
life, so he wanted her to sell drugs for him. This was her guardian.
He was breaking her in, and an undercover officer made five buys, only
one from Angela, but it was a tenth of an ounce over two ounces.
They offered her a three-year sentence, her uncle told her not to take
it, her trial lasted a day, she was convicted and was facing 15-to-life.
Judge Juanita Baine Newton, who also handled her uncle's case, didn't feel
like she could sentence this kid to life, and she relied on the 1975 Court
of Appeals decision saying there could be rare exceptions to the sentences.
Judge Newton sentenced her to eight years, thinking the prosecutors wouldn't
appeal because they had only sought three. Wrong.
When I read about that, I
went down to see Judge Newton and congratulate her. But a year later
the Court of Appeals said the judge had no discretion and had to resentence
Angela to another seven years. Judge Newton resentenced her, but
the judge's eyes were full of tears. Angela was pregnant when she
went to prison, and she gave birth there. Her sister was taking care
of the child. I thought this was a horrible injustice, so I drove
up to the prison and introduced myself and told her I would try to help.
I applied for clemency for Angela after she had served half her minimum
time, and I got lucky. There must be about 500 clemency petitions
each year; the governor signs two or three.
New York Times columnist
Bob Herbert used to write for the Post. He once criticized me because
I didn't sentence someone to enough time. But he came around on the
Rockefeller laws. "Bob Herbert owes you one," my wife said.
But he evened the score by writing three or four columns about Angela's
case and the Rockefeller laws. He helped generate a lot of publicity,
and Angela won clemency after eight years.
After that, I had two more
successful clemency petitions, but the next two after that were turned
down. One of these was a woman who did 12 years. Another was
that rare case of someone who was probably actually innocent -- most of
these drug defendants are not. Sometimes they get off because of
Fourth Amendment violations because the cops know they're guilty, but arrest
them without probable cause. But this was a guy who had two priors
for his own drug problem, did his time, then got married. He went
with his wife to Albany, and she was involved in the traffic. He
got 20 years-to-life.
Chronicle: Why isn't
this a bigger deal?
Marks: There are legislators
in the Assembly who want to see the laws reformed, Rep. Aubrey has a bill,
and the governor has indicated he would like to change the law, to reduce
the penalties. Things were moving until September 11, when that suddenly
became more important than anything. There is public support -- a
New York Times poll last year saw 80% in favor of reforming the Rockefeller
laws -- but the problem is, it's just not a priority. Earlier, the
legislature was afraid of appearing soft on crime, but now the public is
more educated than the legislators. Now, it's not a priority because
voting for it will not help a lot of legislators. Of our prisoners,
80-90% are from New York City, and about 95% of them are either Black or
Latino. If you're an average person upstate or in the suburbs and
you're dark-skinned, this doesn't affect you. This is not a priority
because it doesn't happen to the average person. The average person
is concerned about health care, schools, taxes, not inner city prisoners.
Voting for reform doesn't gain any votes for the legislator from the suburbs
or upstate. And don't forget that upstate we have a lot of prisons,
which have proven very helpful in providing jobs.
Chronicle: The legislature
says it wants reform. The governor says he wants reform. This
has been going on for several years, yet nothing happens. What can
break the impasse?
We have a $5 billion budget deficit this year, and we're not alone.
States around the country are changing mandatory minimum laws, especially
on drug cases. It costs the state of New York $32,000 a year to keep
a man in prison. In Michigan, they will save $60 million by having
repealed their mandatory minimums. We could really save some money
here, and that is becoming a powerful argument. The fact that we
could save millions is why I think change is now possible.
Chronicle: Some proponents
of change are advocating nothing less than repeal of the Rockefeller laws.
Others would settle for sentencing reforms. What do you think can
Marks: I would like
to see judicial discretion restored. If judges had discretion, most
first-time offenders would receive probation, certainly the three I won
clemency for would have. There is a tremendous spread in sentencing
here. I must have talked to 20 or 30 inmates doing 15-to-life, most
of whom would have, should have received probation, especially those with
no prior record. 99% of those in prison under the drug laws are addicts
or low-level, small sellers. There are very few big-time drug dealers,
and I don't have much sympathy for them. Only prosecutors support
the current law, because it leaves discretion in their hands. They
say mandatory minimums are needed because judges are not consistent in
their sentences, but that's usually a difference of a few months, not like
the difference between the 1½ years you get if you plea and the
15-to-life you get if you don't. Talk about sentencing disparities!
Also, by offering pleas with only a few years, prosecutors get some defendants
to become squealers and give them information on more people selling drugs.
I have never seen a law as bad as this. The punishment just doesn't
fit the crime. And it doesn't make sense.
But I don't think even the
restoration of judicial discretion is likely this year, let alone repeal.
If we get action, it won't go as far as I would like, but I'm willing to
take what I can get. We might be able to get some sentencing reductions.
Chronicle: What about
legalizing the drug trade as a solution?
Marks: I'm equivocal.
I could consider legalization, but it would have to include lots of programs
for people who are addicted. No programs, no legalization.
I was a great admirer of our criminal justice system as a young man, and
I still am, but not as much. Back then we were concerned with rehabilitating
people, but now we are more concerned with incarcerating them. We
need more programs to help people. Many inmates need adult education;
when I went to Riker's Island only 20% had high-school diplomas.
They come from poverty, they have families with drug or alcohol problems,
they don't have educations, but they could be helped. I've seen lots
of them in front of me. They have street smarts -- if you could tie
that in with a real education, they'd have it made. When Nelson Rockefeller
was elected, we had prisons that tried to help the addicts, but they closed
them up. We didn't know as much about treatment as we do now.
We need more treatment. We've been going in the wrong direction,
and I just hope it changes. It's not a sin to be poor, but we need
to help these people, not just incarcerate them.