Pubdate: Mon, 21 Jun 2010
Source: New York Times (NY)
Page: A23
Copyright: 2010 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Nicholas Confessore
Cited: Drug Policy Alliance http://www.drugpolicy.org/
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)
Bookmark: http://www.mapinc.org/find?214 (Drug Policy Alliance)

LITMUS TEST IN PRIMARY: OVERHAULED DRUG LAWS

For many Democrats in Albany, it was a landmark achievement: the 
long-sought overhaul of New York's strict Rockefeller-era drug laws, 
repealing mandatory minimum sentences for drug offenders that critics 
said disproportionately and unfairly fell on blacks and Latinos.

But that legislative victory last year has emerged as a litmus test 
in the increasingly bitter five-way Democratic primary battle for 
attorney general.

One candidate, Kathleen A. Rice, the Nassau County district attorney, 
who many believe is the favored candidate of Attorney General Andrew 
M. Cuomo, the Democratic candidate for governor, says she has always 
supported the drug law overhaul. Two other candidates, Assemblyman 
Richard L. Brodsky of Westchester County and State Senator Eric T. 
Schneiderman, who represents parts of Manhattan and the Bronx, have 
assailed her in recent weeks, saying that Ms. Rice had opposed the 
overhaul last year and had changed her views only recently, after she 
decided to run for higher office.

Two weeks ago, Mr. Schneiderman, who sponsored the Senate version of 
the legislation, even challenged Ms. Rice to debate the issue with 
him, one on one. Ms. Rice has not yet agreed.

"Given that we have an honest difference of opinion," Mr. 
Schneiderman said in an interview, "on our state's most defining 
criminal justice issue, I believe the public would be well served by 
an honest and respectful debate on our divergent positions and records."

The five candidates will meet on Monday for a moderated forum in Manhattan.

The attacks against Ms. Rice may be calculated to fuel perceptions 
that she is too conservative to be the Democratic nominee; she did 
not register as a Democrat until 2005, shortly before her first run 
for district attorney, while other candidates have been at pains to 
describe themselves as lifelong Democrats.

But underscoring the debate over changing the drug laws is a battle 
by the Democratic candidates -- all five of whom are white -- for the 
allegiance of black voters in what is expected to be a low-turnout primary.

"The reforms resonate powerfully in the African-American community," 
said David S. Birdsell, dean of the School of Public Affairs at 
Baruch College. "It is also a signature piece of progressive 
legislation for an increasingly large part of the Democratic primary 
base. It's a litmus test for progressive voters and an appeal to a 
group that was disproportionately harmed by the old laws."

In candidate forums and interviews, on her campaign Web site and 
through a campaign spokesman, Ms. Rice has described herself as a 
strong supporter of changing the Rockefeller-era laws, which bound 
judges to sentence even nonviolent, first-time drug offenders to prison.

"Had I been in the Legislature, I would have absolutely voted for the 
reforms," Ms. Rice said in an interview. "There was no distinction 
under the Rockefeller laws for those who were for-profit drug dealers 
and those who were just addicted."

Yet there is little evidence that Ms. Rice voiced support for the 
revision at the time it was being debated in Albany last year. 
Instead, like nearly every other district attorney in the state, she 
expressed concerns about one of its most significant provisions: 
giving judges the authority to send many of those charged with drug 
crimes to treatment programs instead of prison.

That change deprived district attorneys of the enormous -- and, 
critics argued, unfair -- leverage they exerted in drug cases. Under 
the old law, district attorneys decided who would have access to 
treatment programs. Defendants who contested the charges against them 
at trial risked significant jail time with no hope that a judge could 
order treatment as an alternative.

Mr. Brodsky said, "She was O.K. on diversion, but she's been bad on 
judicial discretion from the get-go."

"The problem here," he added, "is that she's not willing to speak 
candidly about it."

In a March 2009 letter to a Republican state senator from Long 
Island, Ms. Rice said she believed that the state's drug laws needed 
changing but found "deeply concerning" the legislation's provisions 
to restore judicial discretion to sentencing.

"There is nobody more familiar with a defendant's background and the 
details of their current case than the district attorney's office," 
Ms. Rice wrote. "Exclusion of the most informed party from such an 
important process is ill-conceived and will result in fewer drug 
treatment success stories and more nonaddicted criminals on our streets."

The senator, Charles J. Fuschillo Jr., read the letter during a 
Senate debate over the bill, and cited it as a reason he voted 
against the legislation.

Ms. Rice's critics also point to a statement issued in April 2009, 
after the law was passed, by the state association of district 
attorneys. Ms. Rice was on the association's board.

The statement, made on behalf of the group by its president, Daniel 
M. Donovan Jr., the Staten Island district attorney, criticized the 
overhaul as "a serious threat to public safety in our state."

A spokesman for Mr. Donovan, now a Republican candidate for attorney 
general, said that his office had circulated the letter to individual 
district attorneys before it was released, the association's usual 
practice, and that Ms. Rice's office had voiced no objection to the language.

And as recently as November, in an interview with The Westbury Times, 
a local newspaper in Nassau County, Ms. Rice said she would "reserve 
judgment" on the new law to see how it worked in practice and said 
she remained concerned that the law gave too much discretion to judges.

In an interview, Ms. Rice said that she had been worried about 
district attorneys' losing their voice in sentencing decisions. She 
also said she had supported giving judges sentencing discretion, 
despite the concerns she had raised at the time.

"I understand that that's a cornerstone of the reform," Ms. Rice 
said. "But I think it would be inappropriate for me not to at least 
express my concern that I have. I agree that judges should have 
discretion. I also feel that D.A.'s should have a voice, because they 
represent the communities."

But some advocates for the overhaul said they believed Ms. Rice was 
being disingenuous.

"To me, her statement is ridiculous," said Gabriel Sayegh, state 
director of the Drug Policy Alliance, a national group that urges 
relaxation of certain drug sentencing laws. "To say that the 
prosecutors were being cut out of the process is a specious claim, 
and it has everything to do with who will be the ultimate decision 
maker in the courtroom -- the judge or the prosecutor."

Ms. Rice also cited a program she instituted early in her tenure to 
divert nonviolent drug offenders into treatment programs. That 
program, like similar ones in Brooklyn and elsewhere, won praise from 
some advocates for drug law reform, including Robert Gangi, the 
executive director of the Correctional Association of New York.

But in an interview, Mr. Gangi said Ms. Rice's position on judicial 
discretion was inconsistent.

"If you support the discretion, then you support reform without the 
conditions or caveats that she seems to be applying," he said. "The 
central principle was to return discretion to judges in drug cases. 
If you're hedging your bets on that, you're trying to talk the talk 
but not walk the walk." 
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MAP posted-by: Richard Lake