Pubdate: Thu, 09 Dec 2004
Source: New York Law Journal (NY)
Copyright: 2004 ALM Properties, Inc.
Contact: http://www.law.com/jsp/nylj/sendFeedback.jsp?content=a&id=contact
Website: http://www.nylj.com/
Details: http://www.mapinc.org/media/615
Author: John Caher

ELECTION FEARS SEEN BEHIND DRUG LAW SHIFT

ALBANY -- In the final analysis, fear of the electoral consequences of
inaction led to this week's reform of the Rockefeller Drug Laws.

That is the assessment of several players and observers on hand when
both houses of the Legislature and Governor George E. Pataki, after
years of standoff, finally came together on a drug law reform bill.

In September, a generally unknown candidate for Albany County district
attorney, David Soares, defeated an entrenched incumbent on a drug
reform platform. Earlier this week, Manhattan District Attorney Robert
Morgenthau, facing a re-election primary in which the Rockefeller Drug
Laws figured to be a major issue, reached out to Assembly Speaker
Sheldon Silver and urged the Manhattan Democrat to sign on to a reform
bill.

Former Senator John Dunne, who championed the Rockefeller Drug Laws
when he served in the upper chamber and is now a vocal proponent of
reform, said the Albany upset of Albany District Attorney Paul A.
Clyne and public comments this week by Mr. Morgenthau apparently
turned up the heat under the long-simmering issue.

"The Soares victory in Albany was a wake-up call to a lot of district
attorneys," Mr. Dunne said. "They have to run every four years, and
this is an issue that is not going away."

But after spending years debating whether, and eventually how, to
revise the harsh drug statutes named after Governor Nelson
Rockefeller, advocates are debating whether the measure approved
Tuesday amounts to true reform or simply political cover. The bill,
delivered late to the desks of lawmakers, passed the
Democratic-controlled Assembly 96-41 and the Republican-dominated
Senate 63-6.

"It is a slight modification that leaves intact all the problems
caused by the drug laws over the years," said Robert Gangi, executive
director of the Correctional Association of New York. "We are
certainly not ready to pop the champagne cork."

Assemblyman Jeffrion Aubry, D- Queens, who sponsored the bill that
ultimately passed the Legislature, said the new provisions do not
address all of his concerns. But he said the bill is the best that
could be negotiated at this point.

Michael Bain, director of public policy at the Drug Policy Alliance
Network, said this week's action is "only the beginning of ending the
unjust" Rockefeller Drug Laws.

Paul Samuels, director and president of the Legal Action Center, said
the legislation is an "important first step," but "until New York
State gives judges discretion to send non-violent, addicted offenders
to treatment instead of prison, we still have a long way to go toward
full reform."

Even a joint press release issued by the Assembly Democrats and Senate
Republicans described the measure as "partial Rockefeller Drug Law
reform."

That leaves a question of where the debate goes from here, and many
advocates fear it will go nowhere in the immediate future because the
most difficult issues -- especially judicial versus prosecutorial
discretion -- remain largely unresolved.

Minor Changes

Despite the reform, some mandatory sentencing provisions are intact
and judges still lack the degree of discretion advocates say is
necessary. The measure does not address drug kingpins, and prosecutors
are eager to get stronger weapons against those who run narcotics
enterprises.

The measure passed Tuesday will:

   Reduce from 15 years to life to 8 to 20 years the prison sentence
for non violent, A-I felony offenders. Offenders will become eligible
for residential treatment after serving 3.7 years.

   Eliminate the maximum sentence of life for A-I and A-II
felons.

   Reduce sentences for most nonviolent first offenders and nonviolent
repeat offenders.

   Increase penalties for some drug offenders with prior violent felony
convictions.

   Expand access to the state's Comprehensive Alcohol and Substance
Abuse Treatment Program, an in-prison counseling program.

   Permit retroactive sentencing for convicts serving 15 to 25 years to
life for drug crimes. Offenders denied re-sentencing would have the
right to appeal to the Appellate Division.

   Increase the weight thresholds for A-I and A-II heroin and cocaine
possession. Under the pending law, which would take effect 30 days
after it is signed by the governor, possession of eight ounces of
cocaine or heroin would be required for an A-I conviction and four
ounces for an A-II conviction. Now, the thresholds are four ounces and
two ounces, respectively.

Drug Kingpins

Bridget G. Brennan, New York City's special narcotics prosecutor, said
the reform bill appropriately addresses the harshest sentencing
provisions of the Rockefeller Drug Laws, but unwisely neglects to
address drug kingpins.

Ms. Brennan, whose office handles up to one-fourth of the felony drug
indictments in the state, said there is nothing in the law to deal
with drug dealers who handle huge quantities of narcotics.

"It is a relief to finally have some A-I reform, but if we don't have
a kingpin statute to differentiate between significant drug
traffickers and less significant drug traffickers, we will have lost
something with the loss of the lifetime sentences," Mr. Brennan said.
"New York is a hub for international narcotics trafficking and we
don't have a kingpin statute."

Mr. Gangi and several others suggested the impetus for reform was more
political than principled, but most are pleased with the progress,
whatever the motivation.

"My assessment is that it was motivated by the shifting political
landscape, represented by David Soares victory in Albany -- marking
the first time an elected official has gone down to defeat because of
their support of the drug laws," Mr. Gangi said. "The political
handwriting was on the wall."

Former Senator Dunne said he is both pleased and optimistic by this
week's turn of events.

"I think what the Legislature did ... was very constructive," said Mr.
Dunne, now of Whiteman, Osterman & Hanna in Albany. "It is a good
start and I hope the leadership will follow through on what it
acknowledges is a first step. Frankly, that bill contained a lot more
than I thought the Legislature would ultimately agree upon."

The legislation marks the most significant change in New York drug
laws since Richard Nixon was in the White House.

"Thirty years under the Rockefeller statutes have left us with men and
women hopelessly mired in addiction, prisons filled with non-violent
offenders, destroyed families and the failure to bring about, as
promised, the destruction of drug 'kingpins' and the elimination of
the drug trade," State Bar Association President Kenneth G. Standard
of Epstein, Becker & Green said in a statement.
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