After years of inaction, the New York state Rockefeller drug law reform logjam broke this week. In a last minute move on the legislative session's last day, both the state Assembly and Senate passed a compromise bill that would reduce sentences for some Empire State drug offenders. But drug reformers and their allies are less than satisfied because the sentencing bill failed to address what they have identified as key concerns: the return of judicial discretion in sentencing and a means of diverting drug offenders from prison into treatment.
Under the Rockefeller laws passed in the early 1970s, more than one hundred thousand New Yorkers have been imprisoned on drug charges, many with draconian 15-year-to-life sentences. The Rockefellers laws created a harsh mandatory minimum sentencing template which has since spread across the country, contributing to the immense number of people imprisoned in the United States.
The bill was the result of behind-the-scenes negotiations between Republican Gov. George Pataki, Republican Senate leaders, Democratic Assembly leaders, and drug reformers working with Real Reform 2004 (http://www.realreform2004.org), an umbrella coalition of more than 300 groups, said Michael Blain, director of public policy for the Drug Policy Alliance (http://www.drugpolicy.org), a key Real Reform organizer. "The deal came down because we did a deal for the sentencing grid in exchange for not adding any enhancements, which was a key element for us," he told DRCNet. "Governor Pataki tried to weigh in at the end and introduce a three-strikes amendment, which would sent a third-time drug possession offender to prison for life without parole. We walked out of the room at that point. The next morning they came back and said they would take that off the table."
But also off the table for this deal were any measures to restore judicial discretion or allow diversion to treatment, both of which were bitterly opposed by the state's powerful prosecutors. Under the current system, prosecutors -- not judges -- wield real power when it comes to sentencing because with mandatory sentencing schemes like the Rockefeller laws, the sentence is essentially set when the defendant is charged, assuming a jury votes to convict or the defendant agrees to a plea bargain.
Still, the bill passed in Albany and expected to be signed by Gov. Pataki this week will bring relief to thousands of people imprisoned or who will be imprisoned under New York's drug laws. The bill both reduces sentences for some drug offenders and increases the quantity thresholds required to kick in tougher sentences. Under the Rockefeller laws, Class A-1 felons faced 15-to-life; now they will face 8-to-20. Weight thresholds for heroin, cocaine, and other hard drugs have doubled from four ounces to eight ounces to trigger a Class A-1 charge and two ounces to four ounces to trigger a Class A-II charge.
The bill also provides for persons currently serving the longest sentences to ask for court hearings to seek sentence reductions in line with the new sentences. That means some people will actually walk out of prison early. But it also means thousands of lesser Class B offenders will not.
People involved in the Rockefeller reform effort had uniformly mixed feelings. "We believe that it is half a step in the right direction," said DPA's Blain, who was involved in the negotiations. "It is a phase I victory for real reform of the Rockefeller laws, which must include judicial discretion, full retroactivity, and drug treatment. While this is a first victory, it only addressed sentence reduction."
Tony Papa spent years doing Rockefeller time before he parlayed his newly-discovered artistic ability into a publicity campaign that eventually won him clemency and freedom. "I am jubilant that some change will occur freeing some prisoners who served lengthy sentences and reuniting them with their families," he told DRCNet. "But the changes are watered down reform and the struggle to change the power structure of the Rockefeller laws must continue. We have to give back to judges the discretion to arrive at a fair and balanced determination of drug sentences."
In a statement titled "False Drug War Victory in NYS," written from Brazil," Papa discussed the legislation in greater depth. "I thought this was not another 'selling of a dream' by the governor and the NYS legislature..." he wrote, but "As I continued to check the news I was appalled by what I saw." Papa quoted a statement by former federal housing secretary Andrew Cuomo, published in the 12/9 Newsday, saying Cuomo "had it right" when he said it is too late for legislators in Albany to use this week's 'half-a-loaf' reform bill as political cover. 'This is their attempt to alleviate the pressure. It's not going to work. The pressure is for Rockefeller reform and that's not what this is. This is not judicial (sentencing) discretion. This is not significantly reducing the burdensome length of punishment... This is simply not what we've been working for all these years.'"
Along with Papa, Randy Credico of the William Moses Kunstler Fund for Racial Justice (http://www.kunstler.org) has spent years working the trenches for Rockefeller Reform through groups like the New York Mothers of the Disappeared. "I'm happy for some people," he told DRCNet, "but when the dust settles, people will realize how bad a deal this was. We spent seven years and millions of dollars trying to build a pyramid and we ended up with a barn."
One downside to the bill is that it could reduce the pressure to obtain real reform, Credico worried. "This will take the air out of the push to repeal the Rockefeller laws," he said. "People will say this is the best we can do. But the people in Real Reform 2004 owe it to the people in prison to redouble their efforts, to organize and mobilize and spend money at the same rate they did last year."
Still, Credico conceded, given political reality, some sentence cuts were perhaps all that could be expected. "The fact is, a conservative governor and a conservative senator have acted, and I don't know what else you could get out of them." That's because the popular mobilization against the Rockefeller laws has not been massive enough, he said. "You need the asses of the masses on the street. A half-million anti-war protestors may not have been enough to get the attention of Washington, but a couple hundred thousand people in the street for Rockefeller repeal could get the attention of Albany."
Real Reform will be back fighting for real reform, said DPA's Blain. "We are building the political will for more reform," he said. "We've replaced three senators and one district attorney over this issue. Elected officials will begin to take notice, and now we have people thinking about drug policies." Asked if Real Reform would be back at it next year, Blain replied: "We're back at it already."