Pubdate: Thu, 12 Oct 2000 Source: Rolling Stone (US) Copyright: 2000 Straight Arrow Publishers Company, L.P. Section: Natonal Affairs Page: 55 Contact: 1290 Avenue of the Americas, New York, NY 10104-0298 Fax: (212) 767-8214 Website: http://www.rollingstone.com/ Forum: Terry Tang Bookmark: MAP's link to Rockefeller Drug Laws: http://www.mapinc.org/find?140 NEW YORK'S BUSTED DRUG LAWS Since 1973, New York State Has Spent Billions Locking Up Nonviolent Drug Offenders For Longer Jail Terms Than Robbers And Rapists Get. Isn't It Time To End These Unjust And Ineffective Laws? PAULA ALTAGRACIA, A FORTY-TWO-YEAR-OLD single mother from the Dominican Republic, was holding down two jobs, folding clothes at a laundromat and cutting nails at a beauty salon, when police arrested her one night in September I997. She was in a friend's apartment in Washington Heights doing her nails when New York police officers entered the building after receiving complaints about drug activity there. Officers later said they saw her drop a wrapped package containing cocaine into a trash can on the second-floor landing. Altagracia says that when the police arrived, she saw two or three men run down the hallway, and one of them threw the package in the trash. She said she leaned over the can and reached in to see what it was. As it turned out, the package contained an eighteen-ounce cocaine mixture. Altagracia had no prior contact with the criminal-justice system. Psychiatric examinations found her to be a docile, religious woman who suffered from depression and possible hallucinations. The prosecutors didn't claim that Altagracia was selling drugs or had any connection with drug activity other than the incident in the hallway. She repeatedly refused a plea-bargain sentence of three years to life, insisting that she was innocent. But a jury found her guilty of A-1 felony drug possession, and under New York's drug laws she faced a mandatory minimum sentence of fifteen years to life. In an almost unheard-of action this July, the trial judge in Manhattan, James Yates, refused to impose the mandatory minimum, on grounds that it would be "cruel and unusual" if applied in this case. Yates concluded that Altagracia "was unlikely to have held the drugs, if at all, for more than an incidental and temporary possession." Still, he gave six to life to a woman whom he considered an "accidental" offender. Altagracia should consider herself lucky. In the past ten years alone, more than 100,000 New Yorkers have been sent to prison for drug offenses, many for long terms that defy any sense of justice. In 1973, nearly ten years before the War on Drugs became a national obsession, New York enacted some of the toughest drug laws in the country. Congress approved mandatory minimum sentences for an array of drug offenses in 1986, with the result that people caught selling five grams of crack or 5oo grams of powder cocaine were put away for at least five years, or ten for those convicted of selling fifty grams of crack or five kilos of powder. Yet those sentences were soft compared to the drug laws championed by Gov. Nelson Rockefeller in 1973, which remain largely unchanged nearly thirty years later. In New York today, a first-time offender convicted of selling two ounces or simply possessing four ounces of a narcotic gets a minimum of fifteen years to life. Second-time offenders face mandatory minimums of four and a half to nine years for selling or possessing with intent to sell any trace amount of cocaine, heroin or other hard drugs. Thousands of low-level drug of-fenders, many caught selling ten-dollar vials of crack -- about one-seventh the weight of a packet of Equal -- are locked up longer than felons convicted of assault and other violent crimes. The laws enacted in 1973 haven't reduced the availability of drugs, but they have caused the state to spend billions of dollars processing and incarcerating drug offenders. After witnessing decades of this kind of failure, several stalwart Republican 1eaders from the 1970s have come out vigorously against the very laws they helped push through. "The lesson we learned was that harsh penalties did not deter drug sales or addiction, but they filled the prisons with nonviolent offenders who need treatment," says John Dunne, a former assistant attorney general in the Bush administration and a co-sponsor of the Rockefel1er drug laws when he was a member of the state Senate in the 1970s. The coalition of community leaders for drug-law reform led by Dunne includes H. Douglas Barclay, the Senate sponsor of the Rockefeller legislation; Warren Anderson, the Republican Senate majority leader when those laws were enacted; and other Republicans, like Richard Bartlett, who previously chaired the commission to revise the state's penal laws. These men are hardly bleeding hearts, but they and many criminal-justice experts are convinced that the mandatory sentences don't work. New York's harsh drug laws were passed at a time when -public fears about drugs were rising, particularly in the suburbs. The existing laws were thought to be too lax, a state-run program to rehabilitate addicts had largely failed, were still in their infancy, Rockefeller, who had been widely attacked by conservatives for his social liberalism and his spending on urban programs, was eager to move to the right to bolster his credentials with the national Republican Party. The polls were telling him that middle-class suburban voters wanted something done about the drug problem. Getting tough on sentences seemed a perfect quick fix for both of his political problems. The fact that a scheme of one-size-fits-all punishment was utterly unproven as a method to deter drug-related crime did not stop Rockefeller. In fact, embracing the dramatic, big-ticket solution was a hallmark of his governing style. He lobbied hard for his proposal, despite reservations among even members of his own party, calling the measures "so strong, so effective, so fully enforced that the hard-drug pusher will no 1onger risk his own life and freedom by jeopardizing the lives of others." He batted aside the opposition as being weak-minded, and in the end there were no alternative plans on the table to defeat the Rockefeller proposal. Looking back, Douglas Barclay says, "The public wanted to solve the drug problem, and you didn't want to be criticized for not trying or not being tough enough. It seemed Like a logical thing to do at the time, because some people thought that the judges were coddling drug dealers. But I don't think anybody thought we'd send so many people to prison." DONNA CHARLES IS JUST ONE statistic among the 22,149 drug offenders now 1ocked up in New York prisons. She has been inside since 1978, serving a seventeen-year sentence for her first and only run-in with the law. In 1986, she was a single mother working two jobs, desperate for money to rent an apartment so that she could be reunited with her two small kids, who had been farmed out to relatives. An acquaintance's boyfriend offered her $1,500 to carry a package of cocaine from New York to Memphis, and she was arrested on her way to catch a plane at La Guardia Airport. The man who made the deal fled the jurisdiction. The prosecutors offered Charles a plea bargain of three years to 1ife, a pretty good indication they knew she was a mule and not a drug kingpin. She chose instead to go to trial, was found guilty and was sentenced to seventeen years, two years more than the minimum. Her kids spent their childhoods without their mother. The only unusual twist in this story is that the judge who sentenced Donna Charles, Ann Dufficy, has become an ardent advocate for her petition for clemency. "Donna is a remarkable person," says Dufficy, who has retired from the bench. "She's been rehabilitated, she's not a danger to society. But the law gives judges no discretion." In her letter to Gov. George Pataki requesting mercy on Charles' behalf, Dufficy wrote that "no person could be more deserving of executive clemency than Donna Charles." Pataki denied Charles' petition in 1998, and she had to wait until this year to reapply. Charles is not alone in having her life and her children's lives nearly destroyed by a draconian sentence. Nearly every Christmas time, New York governors have made a practice of showing mercy to a few hapless souls, usually first-time offenders, who got slammed with a mandatory minimum that was absurdly out of proportion to their crime. But that and still leaves thousands of others most treatment techniques imprisoned by a system rife with injustice. The Rockefeller laws do not allow a judge to consider a person's role in the crime, his past history or potentia1 for rehabilitation. Like federal drug laws, they turn on the weight of the drugs found at the time of arrest. No distinction is made between the pure drug and any additives in the mixture. The crazy result is that a street dealer who is selling cocaine that has been cut ten times is punished as heavily as the big dealers who import the pure stuff. Of course, most major dealers are smart enough to use other people as couriers. Even when the big fish are caught, it's likely they will be able to get a plea bargain from prosecutors by implicating colleagues, while lower-level, 1ess-culpable defendants rarely have useful information to share, or they make the mistake of going to trial, like Donna Charles and Paula Altagracia. Instead of having any real impact on drug trafficking, the laws have resulted mostly in the prosecution and imprisonment of people who are the easiest to catch -- mules and street-level user-sellers. Most studies, according to John DiIulio Jr., a criminal-justice expert and professor at the University of Pennsylvania, show that when a 1ow-level offender is incarcerated, another person simply takes his place. This pattern of enforcement against street-level operators has created staggering racial disparities in imprisonment, The reason is no mystery. Drug transactions in minority neighborhoods are apt to happen on the street, making small-time dea1ers easy targets for arrest. Middle-class people are less likely to work as mules, and drugs in affluent, whiter parts of town are more often sold in private establishments and homes, which are also a lot tougher for undercover cops to penetrate. Data from the Correctional Association of New York, a criminal-justice advocacy group, show that near1y ninety-five percent of the drug offenders in New York prisons are black or Latino, though blacks and Latinos make up less than a third combined of the state's population, and federal surveys indicate that more than seventy percent of illegal-drug users are white. "This result may not have been intended," says Robert Gangi, executive director of the association. "But the laws have clearly resulted in institutionalized racism." FROM THE BEGINNING, THE ROCKEFELLER proposal was criticized by the Democrats as wasteful and inhumane, Civil-liberties groups, court administrators and even district attorneys opposed to mandatory minimums because they took discretion away from judges. But none of the critics fully anticipated how these laws would alter every aspect of New York's criminal-justice system. Rising numbers of drug arrests have overwhelmed the courts, which have not expanded sufficiently to meet the burden, In 1980, there were 27,407 drug arrests in New York. By 1999, the number had risen to 145,694. The state's total prison population has soared from 12,500 in 1973 to more than 71,400 this year. The drug-inmate population in 1980 was less than 2,000; now it is more than 22,000. In the past twenty years, the state has spent nearly $4 billion building new prison cells, in large part to hold drug offenders. The annual cost of incarcerating an inmate is about $32,000. The state now spends roughly $650 million a year to house drug inmates alone. These extraordinary costs might be justified if there were evidence that they enhance public safety. But in fact the great majority of drug offenders -- nearly eighty percent of those sent to prison in recent years -- have never been convicted of a violent felony. About sixty percent of them were convicted of the lowest levels of felonies -- Class C, D or E -- which involve minute amounts of drugs. About a third have no prior felony records. Drug offenders now make up nearly half of all felons sent to prison, compared to just eleven percent in 1980. Violent felons, on the other hand, have declined from fifty-seven percent of total new commitments to prison in 1980 to a mere twenty-eight percent in 1998, The drug 1aws have perversely turned state prisons that used to house primarily violent criminals into expensive warehouses for nonviolent drug addicts. Barclay, like his fellow reformers, believes fiscal prudence, if not compassion for inmate addicts, might motivate politicians to replace mandatory minimums with more treatment. The state corrections department estimates that at least two-thirds of inmates have substance-abuse problems. Other groups, like the National Center on Addiction and Substance Abuse at Columbia University, give estimates closer to eighty percent, A 1997 RAND study found that drug treatment for this population is ten to fifteen times more effective in reducing serious crime than mandatory minimum sentences. The savings of drug reform would be substantial, since a year of residential drug treatment costs about $18,000 and outpatient treatment only $5,000, or only a sixth of the cost of incarceration. Unfortunately, Rockefeller's purely punitive approach halted experimentation with treatment-based alternatives for two decades. Even now, the New York system offers very few options that give some low-level defendants the opportunity to go through treatment in lieu of prison. ON EVERY LEVEL -- COST, CRIME-fighting effectiveness and impact on minority communities -- the Rockefeller drug laws have been disastrous. Yet few politicians in New York have the guts to challenge the status quo, for fear they will be considered soft t on crime. Senate candidate Rick Lazio is so apprehensive that his campaign staff refuses to make any comment about the subject. The other Senate candidate, Hillary Clinton, is less fearful but is willing only to say through her spokeswoman that she supports "moving in the direction of giving judges more discretion." Early in his tenure, Gov. Pataki questioned the usefulness of the extraordinarily long sentences, but he has offered no meaningful change to the laws, The state Legislature, a sleepy enclave that is completely captive to the secretive machinations of two men -- the Democratic Assembly Speaker, Sheldon Silver, and Republican Senate Majority Leader Joseph Bruno - -- has done nothing. Last year, Bruno surprised everyone when he said he believed there was a need to revise the drug laws. But he offered no new legislation. Democrats, who have historically been opposed to the Rockefeller laws, should have cheered and pressed Bruno to make a deal. Instead, Silver declined to touch the subject, afraid that merely discussing reform would leave them vulnerable to thirty-second attack ads by the Republicans in this year's elections. Pete Grannis, an outspoken Assembly Democrat, is appalled by the inaction. The only thing standing in the way of reform is "political cowardice," he says, "It's nothing more complicated than that. The issue makes people in a few marginal seats uncomfortable because they might have to defend any change to the laws." Jeffrion Aubry, chairman of the Assembly corrections committee and sponsor of a bill to end mandatory minimums, thinks voter awareness of the harm of the drug laws will eventually force nervous legislators to act. But even with public support, he says, "Somebody's got to suck it up and do something," Albany politicians are also afraid of opposition from district attorneys who like having the hammer of mandatory minimums to coerce guilty pleas and cooperation from defendants. Yet even Gen. Barry McCaffrey, the director of the White House's drug-control-policy office, has loudly criticized the Rockefeller drug laws. "We cannot arrest our way out of the problem of chronic drug abuse and drug-driven crime," he said in a speech in Albany last year. He's been trying to persuade politicians around the country that treatment is a better solution to addiction-driven crime because long sentences may actually breed more criminality. "Our prisons have become akin to graduate schools of crime," he said, pointing out that sending drug abusers away gives them idle years to learn even more dangerous behavior. Drug treatment, by contrast, has been shown in numerous projects around the country to cut recidivism rates significantly and lower the incidence of continued substance abuse. Successful treatment could also help reduce welfare and health-care costs among drug abusers, and could even reduce the number of children placed in foster care because of their parents' imprisonment. An independent commission created by Judith Kaye, the chief judge of New York, to review the impact of the drug laws on the court system this summer recommended expanded use of treatment a1ternatives to incarceration for low-level drug offenders. That proposal, if carried out statewide, might begin to cut relapses among addict offenders who regularly cycle through the courts and prisons. But the commission failed utterly to come to grips with the need to repeal the mandatory minimums that are driving the whole system. The deepened racial divide and the extraordinary human suffering created by laws that ignore principles of proportionality can't fully be measured. But in the past couple of years, even conservatives have started to acknowledge this social and moral calamity. But actually repealing the laws will require common sense and backbone on the part of New York's timid political leaders. "When something doesn't work, you've got to start thinking about another way," says Barclay. It's ironic that as today's politicians drag their feet, the earliest supporters of these laws are leading the charge to stop the unconscionable waste. - --- MAP posted-by: Richard Lake