Pubdate: Fri, 20 May 2005
Source: Times Union (Albany, NY)
Copyright: 2005 Capital Newspapers Division of The Hearst Corporation
Contact:  http://www.timesunion.com/
Details: http://www.mapinc.org/media/452
Author: Elizabeth Benjamin, Capitol bureau
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)

SOME STAY IN PRISON AFTER DRUG LAW REVISED

Reforms Fail to Address Inmates Also Convicted of Lesser Charges

ALBANY -- Lafayette Lewis remains behind bars five weeks after a judge 
cleared the path for his release by invoking powers granted under the 
revamped Rockefeller Drug Laws.

Lewis, who has served 13 years for a first-time narcotics offense, is still 
at the Elmira Correctional Facility even though Albany County Judge Thomas 
Breslin reduced his sentence to nearly mirror his time served.

A conviction on a lesser drug charge is blocking Lewis' freedom.

Changes to the 1973 laws signed by Gov. George Pataki last December let 
judges resentence nonviolent felons convicted of the highest level, Class 
A-1, drug offenses. But judges can't reduce sentences for lower-level crimes.

When the changes were approved, critics said they did not go far enough to 
help the bulk of drug offenders serving time for Class B through E-level 
offenses. It is now becoming clear that the failure of the new law to 
address all but the stiffest of drug penalties is hurting even those few 
the limited measure was designed to assist.

"One would expect the A-1 sentence to be longer, so that would be the one 
to worry about," said Albany attorney Lewis Oliver, who appeared in court 
on Lewis' behalf. "That's probably why the so-called reform legislation 
overlooked this problem."

Lewis, a Niagara Falls native, and two other men were pulled over for 
speeding on the Thruway in September 1990. The officer found more than 4 
ounces of cocaine in the car that Lewis insists wasn't his. Nevertheless, 
he was convicted in 1991 of first-degree criminal possession of a 
controlled substance -- an A-1 level crime with a sentence of 25-years-to-life.

On April 13, Breslin cut Lewis' sentence to 13 years, eight months and 16 
days, making him immediately eligible for parole.

With credit for good time, it seems Lewis, 37, should be free. But he's 
also serving a concurrent 12 -to-25-year sentence for second-degree 
conspiracy to sell drugs, a Class B felony, stemming from the same 1990 
incident. Breslin couldn't reduce that sentence.

Lewis' fate now rests with the parole board; his hearing is scheduled for 
Monday.

Lewis is not alone in his frustration of freedom deferred. Of the 446 Class 
A-1 offenders in the prison system when Pataki signed the new law, 66 have 
been resentenced, but only 21 were released as of April 30, according to 
the state Department of Corrections.

Not all the affected inmates share Lewis' exact circumstances.

Last month, Willie Rodriguez' relatives traveled from Atlanta and Manhattan 
to Albany to watch what they thought would be his resentencing and release. 
But Rodriguez, who has spent more than two decades in prison for a 
first-time drug offense, had two convictions -- an A-1 and an A-2 -- 
stemming from the same incident -- a situation unbeknownst to his family 
and his lawyer.

Rodriguez' resentencing was delayed until his attorney could submit new 
paperwork. His A-1, 25-year-to-life conviction was reduced Thursday to 18 
years. But, under the new laws, the judge couldn't touch the A-2 
conviction. Now Rodriguez, too, goes before the parole board.

The state Legislature's 2004 drug law agreement did away with life in 
prison and reduced sentences for A-1 offenders, but only allowed Class A-2 
and B offenders to reduce their sentences through so-called "merit time," 
achieved by earning a general equivalency diploma, for example, or 
completing drug rehabilitation programs.

According to the Department of Corrections, there were 14,844 drug 
offenders in the state prison system as of March 14. They break down as 
follows: 403 A-1s; 1,646 A-2s; 4,876 Bs; 3,720 Cs; 3,555 Ds and 644 Es.

The Democrat-led state Assembly is likely to soon pass a bill seen as the 
next step in drug law reform. It would allow some lower-level, Class B, C, 
D and E, drug offenders to be diverted into substance abuse treatment 
facilities rather than prison and also largely return sentencing discretion 
to judges.

Under the current laws, judges are required to impose specific sentences 
based on the weight of drugs an offender is convicted of selling or 
possessing. With the exception of district attorney-controlled alternative 
incarceration programs, judges have few options outside prison for those 
offenders whose addictions may have driven them to commit their crimes.

The measure's sponsor, Assemblyman Jeffrion Aubry, D-Queens, said his goal 
is to "stake out a strong position and put it in the Senate's lap." It's 
unlikely further reform will be achieved this year, he said, but that is 
likely to change in 2006 when every statewide office and all 212 
legislative seats are up for re-election.

"Whatever happens in 2005 is just a warm-up," Aubry said. "The individuals 
planning for 2006 are saying to the Senate, 'What you do now determines 
what we do next year.' "

When the Senate voted in 2004 to modify the drug laws, Senate Majority 
Leader Joseph Bruno, R-Brunswick, said "There is more to be done, and we're 
going to get there."

But revisiting this issue doesn't appear to be among the Senate's top 
priorities. Tougher penalties for some drug crimes have been proposed; 
further sentencing reform has not.

"We're willing to entertain various proposals, but it's four weeks before 
the end of the session, and some major three-way discussions would have to 
take place for there to be any movement," said Craig J. Miller, spokesman 
for Sen. Dale Volker, R-Depew, chair of the Senate Codes Committee.

Part of the problem is the political pressure that spurred state lawmakers 
to act in 2004 has now dissipated. The changes came three months after the 
surprise Democratic primary defeat of then-incumbent Albany County District 
Attorney Paul Clyne by his former employee, David Soares, who made drug law 
reform central to his campaign. Soares' win worried some of the state's 
district attorneys, who have been among the most vociferous opponents of 
reform.

Talk of reform in a political context this year has been confined to New 
York City, where it is playing a role in the contest for Manhattan district 
attorney. Leslie Crocker Snyder has raised the issue in her primary 
challenge to the eight-term incumbent, Robert Morgenthau, who -- until 
recently -- said little about the need to change the state's harsh drug laws.

Next year will be a much different story. With every statewide elected post 
up for grabs, the Senate Republicans, who lost three seats last fall and 
came within 18 votes of losing a fourth, might be more amenable to 
reconsidering their position.

"We're still hopeful that something will happen this year because there is 
widespread awareness that the changes made last year were not real reform," 
said Robert Gangi, executive direct of the Correctional Association of New 
York, a prison watchdog group that has long sought full repeal of the 
Rockefeller Drug Laws. "At the same time, if nothing does happen this year, 
because it's getting late, next year the heat will be on."
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MAP posted-by: Richard Lake