The Real Cost of Prisons Weblog

Christian Science Monitor

USA > Justice
from the December 10, 2004 edition

More states roll back mandatory drug sentences
The move this week by New York, the pioneer of tough laws, reflects concern about prison overcrowding and 'fairness.'

By Alexandra Marks | Staff writer of The Christian Science Monitor

NEW YORK - New York's dramatic move this week to roll back its mandatory drug laws is symbolic of a growing movement in dozens of states to rethink how they deal with nonviolent drug offenders.

From California to New Jersey, lawmakers either are considering or have already taken steps to reduce sentences, replace prison time with drug treatment, and return some discretion to judges.

The movement is being driven by the desire to ease overcrowding in prisons and concern about the fairness of mandatory sentences. While not everyone agrees with the tilt, even some conservatives have joined the reformers, arguing that more needs to be done than just being tough on crime.

The New York move may be the most important, both for substantive and symbolic reasons. It was the first state in the nation to usher in tough mandatory-minimum drug laws more than 30 years ago.

It was also one of the first where reformers started working to overturn them, arguing the laws designed to net drug kingpins were instead snaring low-level offenders and locking them away, sometimes for life. Critics faulted them for bloating prison populations and unfairly targeting blacks and Hispanics. Conservatives countered that the get-tough laws helped bring down crime rates.

After a heated 12-year battle, the state legislature voted this week to roll back some of those mandatory sentences. In doing so, it became the 22nd state in recent years to reassess or change its drug laws. Some, like Michigan, did away with mandatory life-without-parole sentences for certain felons. Others, like New Jersey, have set up a commission to study changes.

The move by New York lawmakers is "very good news," says Julie Stewart, president of Families Against Mandatory Minimums, an advocacy group in Washington. "They have been one of the most recalcitrant of states, and their penalties are some of the harshest. The states are the real laboratories on this issue, and they seem to be moving far ahead of the federal government."

Currently, a first-time class-A felony in New York - defined as possession of four ounces or more of a hard drug - would get an offender 15 years to life. Under the new law, a person would have to possess eight ounces or more to be categorized as a class-A felon, and the mandatory sentence was reduced to eight to 20 years.

Supporters of drug reform see the New York move as a turning point in the battle to replace mandatory minimums nationwide. But some think New York lawmakers did not go far enough in either reducing the length of mandatory sentences or in

returning discretion to judges. "It's a small but encouraging step," says Alan Rothstein of the New York bar association. "But we're also hopeful the legislature will turn to this issue again in the next session and make even more substantive changes."

Many conservatives still support mandatory minimums as key deterrents to drug crime. They also see them as a way to ensure uniformity in sentencing, avoiding having some judges hand out stiff jail terms and others lenient ones. But some also now support elements of the reform movement.

"My sense is that the country is coming to the conclusion that the levels of penalty are about right, and maybe even a little too harsh," says Paul Rosenzweig of the Heritage Foundation in Washington. "I don't see people abandoning the deterrent, but trimming, assessing, and figuring out whether the marginal value of an additional three years in jail is worth it, or whether that money could be spent in more cost-effective ways."



Newsday Opinion
DOING TIME
Drug laws are still too harsh
Real reform remains elusive as prosecutors still have the power to stack the decks against the small fry

Robert Gangi is the executive director of the Correctional Association of New York.

December 9, 2004

Despite the fanfare, the Rockefeller Drug Law modifications approved this week in Albany do not amount to real reform. The amendments reduce sentences for drug offenses but leave intact the harshest aspects of these statutes and don't address the most serious problems caused by these laws.

The mandatory sentencing provisions remain on the books, meaning that judges still cannot consider significant mitigating factors - such as an individual's role in the drug transaction or history of addiction - and fashion appropriate penalties to suit the offenses before them. Mandatory sentencing schemes like the Rockefeller Drug Laws do not eliminate discretion; they remove it from the judge's hands and place it in the prosecutor's offices. Under the new system - as under the old one
- the district attorneys will maintain power to control the outcome of drug cases, and the old imbalance associated with the drug laws will persist. The deck will still be stacked.

Prison terms, especially for the highest categories of drug offenses, remain excessive. For example, under the new system, instead of 15 years to life, the most serious provision of the drug laws carries a sentence of eight to 20 years - still far too long.

Many other drug offenders, most of whom have no history of violent or predatory behavior, will still be incarcerated for inordinate periods of time, and New York's taxpayers will still foot the bill. It costs the state hundreds of millions of dollars annually to lock up people convicted of minor drug crimes.

The main criterion for guilt remains the amount of drugs in a person's possession, not the person's actual role in the drug transaction. Drug kingpins are rarely foolish enough to carry narcotics; they employ other people, often in dire economic circumstances, who agree to do it. Couriers are the ones who get caught literally holding the bag and face long prison sentences. As a main weapon in the "war on drugs," this statute will continue to result in law enforcement agencies concentrating on minor offenders - mainly from poor communities of color
- who are most easily arrested, prosecuted and penalized, rather than on
middle- and high-level criminals who are the drug trade's true masterminds.

Another problem is that the legislature did not include any additional resources for drug treatment and other alternatives to incarceration. Drug treatment is a well-documented success. Fully funded rehabilitation programs not only cost less than imprisonment, they are also much more effective in helping individuals recover from addiction and in reducing the crime associated with the drug trade.

The prevailing wisdom is that Albany was finally willing to move on this issue because of political considerations: an insurgent candidate who ran on a platform promoting drug-law repeal recently defeated the sitting district attorney in Albany County, representing the first time any elected official has been voted from office because of his support for the drug laws. The Republicans in the State Senate - often seen, fairly or not, as obstacles to meaningful change - lost three seats in November, with another hanging in the balance. All observers assume, rightly or wrongly, that New York's next governor will be the progressive Democrat Eliot Spitzer, who will most probably be a strong proponent of real reform. Republican Senate Majority Leader Joseph Bruno likely saw an advantage in supporting this measure: He could at least claim that he and his colleagues took some action.

So, the concerns here are not only substantive; they are also political. If this legislation turns out to be the first small step on the path toward meaningful reform, then it will have been a positive measure. If, in fact, these modifications wind up undercutting the momentum for real change that has been building, then it will be viewed mostly in a negative light. The final history on this issue has yet to be written, and all of us will help shape the ultimate outcome. Copyright C 2004, Newsday, Inc. __________________________________________________________
Newsday Opinion
THEY CALL THIS REFORM?
Albany leaves itself more work to do after tweaking outdated drug laws


December 9, 2004

Given the history of paralysis in Albany, the impulse is to cheer anytime the legislature rouses itself into action, including this week when it approved changes in the antiquated Rockefeller drug laws.

Give credit where credit is due: Ratcheting back the worst excesses in sentences for drug crimes is progress. But reform it's not. Albany danced around the margin, leaving the hard heart of the wasteful Rockefeller drug laws intact.

Even after Gov. George Pataki signs this week's changes into law, prison will still be mandatory for non-violent drug offenders. Judges will still have no authority to sentence anyone to drug treatment as an alternative to incarceration and almost no discretion to tailor appropriate punishments for individual offenders and circumstances.

Albany has much to do before it can lay claim to real reform. Obstructionists will insist that it's mission accomplished after this week's action, a position that should not be allowed to blunt the momentum for further change.

The state's inflexible grid of mandatory drug sentences may have appeared to make sense 30 years ago when the state and fearful citizens were in the grip of an epidemic of drug abuse and violent crime. Since then it has become clear that drug treatment is less costly than long-term imprisonment and often more effective in moving non-violent drug abusers away from a life of crime, which protects the public.

The legislature responded to at least a portion of that reality this week. It voted to shorten mandatory sentences for drug crimes, increase the weight of drugs needed to trigger the law's automatic penalties and to allow some inmates quicker entry into drug treatment programs operated behind bars. The bill that both the Senate and Assembly approved will also allow about 400 offenders doing the most time under the Rockefeller laws to apply for resentencing in line with the bill's reduced penalties.

Prison sentences will still be stiff: 8 to 20 years for the worst, first offenses, for instance, instead of the current 15 years to life. The legislature provided no new money for drug treatment. But it ensured that non-violent drug offenders will no longer face the prospect of life behind bars.

Albany took a step this week toward more rational sentencing for drug crimes, and every journey begins with one step. Copyright C 2004, Newsday, Inc.

____________________________________________
The New York Times
December 9, 2004
Changes Made to Drug Laws Don't Satisfy Advocates
By LESLIE EATON and AL BAKER
By finally tackling New York State's three-decades-old drug sentencing laws - considered among the most severe in the nation - the State Legislature has raised a lot of hopes and plenty of questions among prisoners, their families, and their lawyers. It has also raised fears among advocates for prison reform, who contend that the changes enacted to the Rockefeller drug laws on Tuesday are relatively modest, but may nevertheless reduce public pressure for a more comprehensive overhaul in the way New York treats drug offenders. Indeed, to some advocates, the new bill is not even half a loaf, but more like a heel of bread, which will leave many prisoners and their families with dashed hopes.

"The important message to get out is that the laws are virtually as harsh as ever," said Robert Gangi, executive director of the Correctional Association of New York, a prison watchdog group. For example, he noted, judges must still sentence drug offenders to prison, rather than to alternatives like drug treatment. But if New York still has some of the longest mandatory drug sentences in the country, "I think they should be," said Senator Dale M. Volker, a Republican from western New York who was in office in 1973 when Gov. Nelson A. Rockefeller pushed for laws to fight a growing heroin scourge. Chauncey G. Parker, director of criminal justice services for the state, said that people arrested for felony level drug offenses have an average of three previous felony arrests and four prior misdemeanor arrests.

The new legislation, which Gov. George E. Pataki has pledged to sign, will reduce minimum sentences for drug offenses. For example, first-time offenders convicted of a Class A-1 drug felony, who under current law must receive a minimum sentence of 15 years to life in prison, would instead generally face terms of less than eight years. In cases of drug possession, rather than sales, the new law also doubles the amount of heroin, cocaine and some narcotics that automatically turn cases into top-level felonies.

But the most heralded change will affect prisoners who were sentenced to especially long sentences, as much as 25 years behind bars, and will now be able to petition the courts to have their lengthy sentences reduced to the new, lower levels. According to data from the New York State Department of Correctional Services, that change could affect 446 prisoners. That is only a sliver of the 15,600 felons imprisoned on drug charges. So many families who were cheering the Legislature's efforts are now deeply disappointed, said Randy Credico, director of the Kunstler Fund for Racial Justice and an organizer of the group Mothers of the New York Disappeared. He is faced with calling many of the group's members, he said, and tell them their children "are not coming home." One of those mothers is Cheri O'Donoghue, who said that her son, Ashley, 21, pleaded guilty to a lesser drug charge upstate to avoid a possible life term in prison under the old law; in March, he was sentenced to serve 7 to 21 years and is now in Clinton Correctional Facility near the Canadian border and far from his home in Manhattan. He is not eligible for the new reduction program. "If you are going to reform the laws after all this time, and they are so harsh to begin with, then why not really reform them and reform them in a way that makes sense for someone like Ashley's situation, which is a lot of people?" she asked. "He is young and he really wants to come home and he is in shock." Many families do not know whether their child or spouse or parent qualifies for the sentencing reduction program.

But they hope. In the Bronx, Jane L. Gooden has been waiting more than seven years for her youngest son, Timothy Merritt, to be released from prison. She said he was living with friends upstate when drugs were found in the apartment where he was staying; according to court records, in 1997 he pleaded guilty to one count of criminal possession of a controlled substance in Columbia County. It is hard for her to travel to Ulster County to visit him at the Eastern Correctional Facility, said Ms. Gooden, who is 61. "I've been sick since he's been gone," she said, adding that her husband died recently. "So I lost one - but I'm gaining one."

Public defenders, who are likely to handle the vast majority of the resentencing efforts, are still trying to figure out how the process will work. While some cases will be straightforward, in others "a lot of advocacy will be involved," said Alfred A. O'Conner, a lawyer with the New York State Defenders Association. The Legislature promised the prisoners lawyers, but did not authorize any money for the effort, he noted. Still, he added, "it's a chore that we welcome." Ronald L. Kuby, the defense lawyer who has a daily radio program on WABC with Curtis Sliwa, said that his phones had already started ringing with inquiries from clients, ex-clients and family members. "They want to know how does this affect them, what can we do?" he said. "I assume my experience is being duplicated and replicated" in lawyers' offices across the state. So far, he added, he does have one likely candidate, Roberto Oms, a Miami construction worker with no criminal record who came to New York with some friends who were drug dealers - and four kilos of heroin. Indicted in 1999, he went to trial, arguing that he was "just along for the ride," Mr. Kuby said. The judge disagreed and sentenced him to 15 years to life. But the judge, Rosalind Richter, noted that she had adjourned the sentencing "a number of times to see if the Legislature had any willingness, along with the governor, to come to some thoughts about reducing the mandatory sentences under what is known as the Rockefeller drug laws." And if they did so, she was willing to hear from Mr. Oms's lawyers, she said, according to a transcript Mr. Kuby supplied.

Many judges have long pressed for a change in the Rockefeller drug laws, including Chief Judge Judith S. Kaye of the Court of Appeals, the state's highest court, who has been advocating for a rethinking of the laws since 1999. "We do feel it is a major step forward," said Jonathan Lippman, chief administrative judge of the courts. But, he added, "We hope they continue to look at the whole issue of the Rockefeller drug laws." Some defense lawyers wish the new law had gone further, but prefer to focus on the hundreds of people who could be freed soon, or at least sooner. One is Lisa Schreibersdorf, executive director of Brooklyn Defender Services, who said she had one client in his 60's who has already spent 19 years in prison. "Instead of having his old age in jail," she said, "he's got a chance to come home."