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. - --- MAP posted-by: Derek