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. 
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MAP posted-by: Richard Lake