Pubdate: Wed, 25 Jul 2001
Source: New York Law Journal (NY)
Copyright: 2001 NLP IP Company
Contact:  http://www.nylj.com/
Details: http://www.mapinc.org/media/615
Author: John Caher
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)

GOVERNOR PROPOSES PLAN TO END DRUG LAW IMPASSE

ALBANY -- In an effort to break the logjam that has stymied hopes of
Rockefeller Drug Law reform this legislative session, Governor Pataki
yesterday unveiled a new compromise plan designed to put one of his
major 2001 goals back on the front-burner.

The latest proposal would give judges more discretion in diverting
offenders to treatment, and would also partially drop a prior provision
that would have given prosecutors a virtual veto over diversion.
Although the new initiative is not nearly as revolutionary as many
advocates would prefer, or even as broad as a reform package promoted by
the Assembly Democrats, it is far more expansive than some opponents
would like.

It remains to be seen if the proposal, an obvious attempt to strike a
compromise between those favoring unfettered judicial discretion and
those advocating no judicial discretion, can clear both houses of the
Legislature. However, for the first time in several weeks there is cause
for hope at the Capitol that reform can be achieved this year.

In a press release yesterday -- the proposal, crafted largely by
Criminal Justice Director Katherine N. Lapp and Counsel to the Governor
James McGuire, has not yet been drafted as a bill -- the Governor's
office said the latest plan would:

* Allow second-time B, C, D and E drug felons with no violent history to
apply for a Court Approved Drug Abuse Treatment (CADAT) program.
Eligibility would be contingent on the defendant proving drug dependency
through clear and convincing evidence, after which a court would have
the authority to declare that the offender is a substance abuser in need
of treatment.

* Provide that the offender would be sentenced to a determinate term,
which would be served through successful completion of a nine-month
in-prison treatment protocol followed by six months in residential
treatment. Offenders who complete the program would be subject to
post-release supervision, including six months out-patient drug
treatment.

Those provisions would be incorporated in a proposal that includes:

* reduced sentences for non-violent repeat offenders;

* new drug kingpin, armed drug felony elements and Internet drug sale
elements;

* increased penalties for the use of minors in drug transactions;

* random quarterly testing for substance-abusing parolees;

* tougher penalties for repeat and large-scale marijuana traffickers;
and

* a pre-release facility to help the transition of drug felons returning
to the community.

The Administration estimates that about 2,800 offenders annually would
be eligible for CADAT. In the press release, the Administration said
that under the new proposal an eligible applicant for CADAT would be
ordered by the court to undergo substance abuse screening, and would
have to agree to be interviewed by a prosecutor regarding his or her
drug dependency. Either the prosecution or defense would have the right
to move a CADAT eligibility matter from the assigned judge to one
specially trained by the Office of Court Administration to adjudicate
drug matters.

Dependency Hearing

At a hearing, a defendant would have to show that he or she has a
history of drug dependency, and committed the underlying crime because
of that dependency and not for financial gain. The defendant would also
have to show a reasonable likelihood that drug treatment will be
successful, and that participation in CADAT would not impair public
confidence in the criminal justice system. If accepted, the offender
would serve nine months in a treatment program approved by the
Department of Corrections, followed by six months in residential
treatment and post-release supervision. Noncompliance could land the
offender in state prison to serve the remainder of the court-imposed
sentence.

"This proposal builds upon the comprehensive legislative package I
released earlier this year by expanding judicial discretion in
sentencing drug-addicted non-violent offenders while maintaining a
significant role for prosecutors to ensure that public safety is not
compromised," the Governor said in the press release.

In an interview last night, Ms. Lapp said the Governor believes the time
is ripe for reform and is eager to bring the issue to the legislative
forefront.

"Clearly, the Governor's current proposal is a movement by him to
balance greater judicial discretion while recognizing the importance of
a strong prosecutorial role in the process," Ms. Lapp said. "This deals
with offenders who need much more structured treatment as a sanction,
yet does not in any way compromise public safety."

Governor Pataki promised in his State of the State address in January to
propose major reforms of the Rockefeller Drug Laws. The bill he later
submitted would have reduced sentences in some cases and provided for
treatment diversion with the consent of the prosecutor. That plan was a
disappointment to long-time reform advocates who complained the
initiative did not go far enough, and prosecutors who claimed it went
too far. It resulted in a more ambitious Assembly proposal that is
strongly opposed by prosecutors.

Careful Orchestration

Although inside observers at the Capitol had concluded there was
virtually no chance that the harsh drug statutes would be altered this
Legislative session, the Pataki Administration this week revived the
issue in a carefully orchestrated manner.

Instead of announcing the plan generally to the public, it was revealed
exclusively to The New York Times a day early. And instead of having Ms.
Lapp, who has been the point person on Rockefeller Drug Law reform from
Day One, make the announcement, the Administration gave that task to
newly named Secretary of State Randy Daniels, a black man from Harlem
and self-described "Pataki Democrat." In the Times, Mr. Daniels,
speaking on behalf of the Administration, described the Rockefeller Drug
Laws as something "everybody universally considers to be draconian," a
concept that Ms. Lapp has previously disputed.

With his latest olive branch, the Governor is displaying a willingness
to compromise considerably, and the manner in which it was released
suggests an effort to generate momentum and crucial Democratic support
before the opposition has any opportunity to mobilize.

Assemblyman Keith Wright, a Manhattan Democrat, said the latest proposal
is a good starting point for serious negotiation, something that has not
occurred to date.

"We have had a series of conversations with the Governor and it sounds
like he now wants to talk about things," Assemblyman Wright said. "After
some politics, now it sounds like people are ready to talk. They threw
out their salvos, we threw out ours, and it looks now like people are
willing to negotiate and compromise."

Mr. Wright chuckled at the Administration's decision to put the new
Secretary of State in a lead role. "I can't think of ever when a
Secretary of State would comment on a piece of major legislation," Mr.
Wright said. Yet, if the new proposal brings the Governor and
legislative leadership to the bargaining table, Assemblyman Wright said
the political mechanics are of little import.

"I think the parties in each house, the Senate and Assembly, have to
come to the table to talk with the Governor," Mr. Wright said.
"Hopefully, that will happen without much press and much fanfare so we
can formulate a resolution. For the past 30 years, we have had some very
harsh and unjust drug laws, and hopefully as responsible legislators,
which I like to think we are," reforms can be achieved this session.

Still, there are significant hurdles to clear, particularly in the
Senate. But reform advocates and prosecutors are also leery.

Robert Carney, past president of the state District Attorneys
Association and chairman of its executive committee, said he is
disappointed with the Governor's proposal, and disputes the contention
that the Rockefeller Drug Laws have flooded prisons with addicts. He
said there are already programs to help addicts, and he expressed
concern that the proposed initiative would bleed funds from existing,
successful efforts.

"There is this false assumption out there that drug dealers are some
sort of special class of people who are being unfairly treated by
prosecutors who wield all this power at the expense of judges who would
otherwise treat the addiction," Mr. Carney said. "There seems to be a
premise that all drug dealers are addicts, and that is built into this
proposal."

Former Senator John Dunne, an author of the original Rockefeller Drug
Laws and now the leading advocate for their reform, said yesterday that
the latest development is a major breakthrough in that it is a "clear
acknowledgement [by the Governor] that his original proposal is not the
'dramatic' reform he promised in January, and a recognition that the
decision to divert to treatment should be made by a judge and not by the
district attorney."

Anita Marton, senior staff attorney at the Legal Action Center,
questioned the Governor's commitment to treatment.

"We are very pleased the Governor is looking to introduce a new proposal
that would include individuals who are charged with B-level offenses and
might be charged with sales," Ms. Marton said. "We are concerned,
however, at the shape of that proposal. This seems to be a proposal that
diverts from prison to prison, with no opportunity to divert people to
community-based treatment."

John Coppola, executive director of the Alcohol and Substance Abuse
Providers of New York, said he is "really concerned that this proposal
comes up very, very short." Mr. Coppola said it is not clear that the
proposal recognizes addiction as a public health, rather than criminal
justice, problem.

Deborah Small, director of public policy at the Lindesmith Center, said
it is significant that the Governor seems to be backing off his prior
insistence that prosecutors have a veto over diversion. She said,
however, that a major drawback is an apparent condition that in order to
be eligible for diversion a defendant would have to plead guilty to a
higher level of offense.
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