Source: New York Times Contact: Pubdate: Monday, January 19, 1998 Author: Christopher S. Wren CRITICS ATTACK NEW YORK'S TOUGH DRUG LAWS NEW YORK -- In the 25 years since New York enacted some of the toughest drug laws in the country, drug dealers, prosecutors and defense lawyers have increasingly found ways of working around the laws or using them in a manner never intended, softening the goal of putting away hardened drug traffickers, say many people involved in drug cases. The laws, pushed through the Legislature in 1973 by Gov. Nelson Rockefeller, have come under periodic attack by critics who say they have clogged the state's prisons without making a dent in the problem of illegal drugs. The echoes of that debate surfaced again last month, when Gov. George Pataki commuted the prison sentences of three people serving long mandatory sentences for nonviolent drug crimes. Pataki granted similar clemencies in the past, and in 1995 he called for changing the Rockefeller drug laws to allow more nonviolent offenders to avoid long jail terms. But such proposals have gone nowhere, in part because politicians are so wary of being labeled as soft on crime. The Rockefeller laws, which require sentences as high as 15 years to life, have packed the state's prisons with tens of thousands of drug felons and added hundreds of millions of dollars to annual prison expenses. But rather than imprison major drug dealers for long periods, some prosecutors and defense lawyers say, the laws have instead hit more low-level couriers and addicts selling to support their habits, because more of them are arrested. Over the years, most dealers have learned how to avoid a long stretch in prison by having an addict or even a child carry the drugs for them. As a result, the mandatory minimums have often hit amateurs like Angela Thompson, who was convicted at age 17 of selling two ounces of cocaine to an undercover police officer at the behest of her drug-dealing uncle. She served more than eight years of a 15-year minimum sentence before being granted clemency by Pataki last month. But prosecutors have also found that they can wield the laws as a powerful weapon to force low-level or middle-level dealers who are arrested to trade information implicating accomplices or higher-ups, in exchange for lesser sentences. "There is no question they've made prosecution easier," said Robert Silbering, who retired last month after working since 1991 as New York City's special narcotics prosecutor. "If you didn't have the Rockefeller drug laws, you'd probably have a greater number of drug cases going to trial, and you might have gridlock in the courts." As a result, however, those with no useful information to trade or with little savvy about manipulating the system seem to absorb the full brunt of the law. "The serf has often ended up with a far worse sentence than the boss, because the serf didn't know anybody to give up," said Charles Adler, a Manhattan defense lawyer who has pressed for alternative sentencing. He recalled defending a client caught carrying narcotics for her boyfriend, who was a professional drug dealer. The boyfriend cooperated and got lifetime probation. She got 15 years in prison. Defense lawyers have sometimes tried to avoid the laws' tough penalties by steering clients into federal court, whenever a claim can be made for federal jurisdiction, because the sentences there are relatively less draconian. Lloyd Epstein, a lawyer who practices in both federal and state courts, gave a stark example of the discrepancy between sentences in the two systems. He represented a Venezuelan courier who swallowed some cocaine-filled condoms before flying to New York. The courier became ill after leaving the airport and required emergency surgery to remove the cocaine. After recovering, the smuggler faced a minimum of 15 years in a New York prison, which Epstein plea-bargained down to six years under a less punitive category of the law covering a smaller quantity of drugs. "If he'd gotten sick inside the airport," Epstein said, "he could have gotten only 18 months under federal law." All 50 states have some form of mandatory sentences. New York's basic Rockefeller drug law compels state judges to mete out a sentence ranging from 15 years to life to anyone convicted of selling 2 ounces, or possessing 4 ounces, of an illegal drug like heroin or cocaine. The law sets shorter mandatory sentences for possession or sale of smaller amounts. In fact, statistics suggest that few defendants receive the maximum sentence because so many plead guilty to a lesser offense. During the first nine months of 1997, only 585 of the 10,062 indictments returned in drug felony cases were for felonies requiring a sentence of 15 years to life. But that number includes minor figures who insist on going to trial and are then convicted, leaving the judge with no alternative but to impose the mandatory sentence. In one such earlier case, Anthony Papa, a radio repairman, got 15 years to life for carrying 4.5 ounces of cocaine. He served more than 11 years in Sing Sing before he was granted clemency by Pataki and released last January. A second law requires long prison terms for former inmates who served a drug felony sentence and then commit another felony within 10 years. This law has locked up more people than the first law, Adler said, because a defendant who pleads guilty to a lesser crime in return for a lighter sentence becomes a convicted felon and faces mandatory prison time for the next offense. As of a year ago, almost a third of New York state's nearly 70,000 inmates were locked up for nonviolent drug crimes at an annual cost of more than $600 million. They included 8,760 drug felons incarcerated at an annual cost of more than $260 million under the first law, according to the Correctional Association of New York, an advocacy group trying to improve prison conditions. In addition, 13,075 drug offenders were incarcerated under the second-felony offender law, at an annual cost of more than $390 million. (There is some overlap between the categories.) Yet some police investigators and street researchers report that hard drugs are more widely available in New York now than 25 years ago. One reason is that a new pusher is always ready to take over the sales of an arrested pusher. "What the Rockefeller laws set out to do has simply not been accomplished," said Stephanie Herman, a drug researcher at the John Jay College of Criminal Justice. State Sen. Catherine Abate, D-Manhattan, said the Rockefeller law's greatest weakness is that it "does not distinguish between a kingpin and a drug mule." Last January, she joined state Sen. Dale Volker, a Republican, in sponsoring legislation giving judges discretion to impose a lesser sentence if the offense was confined to a single incident and unconnected to broader drug trafficking. The bill has languished since. Because locking up each inmate costs the state about $30,000 a year, critics say it would be cheaper to put nonviolent addicts into treatment programs. Efforts to change the laws have fallen victim to state politics, say some legislators and officials close to Pataki. Because Democrats who control the Assembly are more interested in modifying the law, Republicans who dominate the Senate would like to squeeze Democratic concessions on other legislation. Some upstate Republicans also do not want the laws changed because they have brought new prisons, and new jobs, to their economically depressed constituencies. But while politicians continue to debate the laws, almost everyone else has learned to live with them. Epstein, who has represented hundreds of drug defendants, said, "Dealers work around New York's laws by having a low-level employee, often an addict, hold the drugs, so the dealer can walk free." Marc Mauer, director of the Sentencing Project, a prison reform group based in Washington, said some dealers have children carry the drugs because they are not subject to mandatory minimums. One addict who is now in a drug treatment program said that when he could no longer afford to buy crack cocaine, he jumped at the chance to get his drugs for free. He took on the risky job of holding the stash of crack for a Bronx street dealer, so if the police swooped in, the dealer could avoid a long stretch in prison. "I ended up selling for them," he said. "I held it." District Attorney Richard Brown of Queens has viewed the Rockefeller drug laws from several perspectives. As a lobbyist for New York City in Albany when the laws were enacted, he warned that they would overwhelm the prisons. Later as a judge, he bridled at restrictions on his ability to impose sentences. Now as Queens district attorney, he said, the same laws make it easier to combat drug trafficking. Despite his frustration as a judge, he said, "I wonder where we'd be today if we didn't have the Rockefeller drug laws. Perhaps we'd be worse off." Even so, Brown said, "I think in the long run we would have been better off if we took the money and used it for prevention, treatment and education." Copyright 1998 The New York Times Company