Pubdate: Fri, 8 Dec 2000
Source: New York Law Journal (NY)
Copyright: 2000 New York Law Publishing Company
Section: Behind The News Page: 1
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Author: John Caher
Cited: The Lindesmith Center Drug Policy Foundation  http://www.drugpolicy.org/
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)

EXPERTS DEBATE ROLE PLAYED BY ROCKEFELLER DRUG LAWS IN DRUG DIVERSION PLANS

In a freewheeling discussion on New York's approach to the narcotics
problem, panelists at a Committee for Modern Courts forum yesterday
disagreed on whether the harsh Rockefeller Drug Laws have a role in
the treatment based carrot-and-stick paradigm that seems to be developing.

While participants unanimously agreed that major reforms are
necessary, and generally agreed that the state needs some sort of a
club to hold over the heads of non-violent drug offenders diverted to
treatment programs, they disagreed over just how big that club should
be.

The Rockefeller Drug Laws, which include some of the most punitive
provisions in the nation, were enacted out of frustration in 1973.
Although Governor Nelson Rockefeller expressed deep reservations over
whether increasing penalties would decrease narcotics use and
trafficking, he told the Legislature he did not know what else to do.
In response, the Legislature enacted laws that, for example, impose a
mandatory minimum of 15 years to life on a defendant with no criminal
past who is found guilty of a single two-ounce cocaine sale.
Second-degree murder carries the same mandatory minimum.

By most accounts, the Rockefeller Drug Laws have failed miserably.
Reform advocates say there is scant evidence that they deter drug
crimes, no indication that they reduce recidivism and substantial
proof that they have crowded the prisons with narcotics offenders. New
York is now sending approximately 10,000 people, nearly all of them
black or Hispanic, to prison annually for drug crimes, at an annual
cost of roughly $ 29,000 per prisoner.

"The Rockefeller Drug Laws are unjust, unfair, immoral and a blight on
our democracy," said Deborah Small, of The Lindesmith Center Drug
Policy Foundation. Ms. Small was on a panel with John R. Dunne, a
former state Senator who sponsored the Rockefeller Drug Laws and is
now a tireless advocate for repealing them; Carey R. Dunne, chief
counsel to the State Commission on Drugs and the Courts; and Fulton
County Judge Richard C. Giardino, who runs a designated drug court in
a rural county outside Albany. (The two Mr. Dunnes are not related.)
The discussion was moderated by Albany attorney Keith St. John, a
director of the Committee for Modern Courts, minority counsel to the
state Senate and private practitioner.

Reform Efforts

In recent years, there has been a concerted effort to reform the
Rockefeller Drug Laws, or at least restore some degree of judicial
discretion. Six months ago, Chief Judge Judith S. Kaye announced a
bold plan to offer treatment in lieu of prison to carefully screened,
non-violent, drug-addicted criminals. Her initiative is projected to
save the state hundreds of millions of dollars while reducing the jail
and prison populations by 10,000 over three years.

But the Chief Judge can do only so much, and while lawmakers of all
stripes say they support reform of the Rockefeller Drug Laws, the
devil is in the details. Next year, however, could be pivotal since it
is an off-election year for both the Legislature and the Governor, and
the fear of being viewed as soft on crime is not as deep as it is
during election years. Still, former Senator Dunne said progress is
unlikely absent solid grass-roots support.

"Without strong public support, this very difficult dialogue is not
going to be translated into reality in bringing about a greater degree
of justice," the former senator said.

Carey Dunne, who helped draft a comprehensive report on the drug laws
at the request of Chief Judge Kaye, said there is an indisputable link
between addiction and non-drug crimes, adding that the link is not
broken by incarcerating addicts.

"It is perfectly clear not only that people in prison do not remain
drug free, but that when released they routinely go back to drugs and
crime," Mr. Dunne said. "There is a desperate need... to cut that
vicious cycle."

He said there needs to be an entirely different mind set, a different
way of thinking about drugs and drug-related crimes, just as there has
been a shift in the perception of drunk driving and domestic violence
cases.

Failure Punished

He said, however, that while treatment diversion is highly effective,
there must be a judicially monitored consequence for failure.

"One of the key components or key elements of a successful program...
is sanctions and rewards, the carrots and the sticks that are used to
reward success and punish slippage," Mr. Dunne said. "All the studies
that have been done have concluded that the more effective programs
are those that have immediate, graduated sanctions."

Judge Giardino agreed that punishment for violating treatment
requirements or drug court orders must be swift.

"You can't punish your kid next month for something he did yesterday,"
Judge Giardino said. "It doesn't work."

Ms. Small, however, said the treatment alternative is often a
get-out-of-jail-free ticket for white offenders. She said
approximately 95 percent of drug felons in New York prisons are black
or Hispanic, even though they make up roughly one-third of the
population that sells or uses drugs.

"Most people assume that the reason 95 percent of the drug offenders
are black or brown is because 95 percent of the drug users and sellers
are black or brown," Ms. Small said. "The fact is that every survey
the government has ever done to ascertain drug abuse, drug selling,
drug activity [shows] that that tendency is pretty much equal to
people's proportion in the population."

Ms. Small said the carrot-and-stick approach is unfair to minorities
because they are not offered the carrot of treatment until they have
been clubbed with the stick of law enforcement. On the other hand,
white drug abusers do not end up in the criminal justice system in
proportion to their societal representation. She said that under the
existing system, minorities are set up for failure, while whites often
are diverted to treatment before they are indicted.

"To say that we have to have a system that gives us a stick to coerce
people into treatment when we haven't made it available to them on
request is unfair, and then to particularly target drug users of color
[as people] who need that stick when we don't apply that same standard
to others is even more unfair," Ms. Small said.
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MAP posted-by: Richard Lake