Pubdate: Sat, 04 Dec 1999
Source: New York Times (NY)
Copyright: 1999 The New York Times Company
Contact:  http://www.nytimes.com/
Forum: http://www10.nytimes.com/comment/
Author: David Rohde

OFFICIALS PUSH TO PUNISH REPEAT PETTY CRIMINALS

Mayor Rudolph W. Giuliani and Gov. George E. Pataki each proposed laws
Friday that would sharply increase the penalties faced by people who
repeatedly commit misdemeanor crimes, like trespassing, turnstile-jumping
and selling small amounts of marijuana.

The proposals were revealed three days after a petty criminal with a long
record was arrested in the brick attack of a woman in Midtown Manhattan.
Though aides to the mayor and the governor denied that their plans were in
direct response to the attack, they repeatedly cited the case of the petty
criminal, Paris Drake, 32, in discussing their proposals. Drake has a
17-year criminal history of cycling in and out of jail after mostly
misdemeanor convictions.

Both proposals would mandate that after a person is convicted of a certain
number of misdemeanors in a specified time period, any subsequent
misdemeanor conviction in the same period would be treated as a felony
conviction, which is far more serious.

Today, conviction for a misdemeanor typically brings only probation or a
jail sentence of days, weeks or months. People convicted of felonies,
however, can be sentenced to years in prison, face at least five years'
probation, are given a permanent criminal record and typically lose their
right to vote and hold professional licenses.

Under Mayor Giuliani's proposal, a fifth misdemeanor conviction in three
years would be treated as a felony. Under Governor Pataki's plan, which is
tougher, the fourth misdemeanor conviction in 10 years would be treated as
a felony.

Such a law would be constitutional, said Katherine N. Lapp, Governor
Pataki's criminal justice commissioner, and is an extension of existing
policy in other areas. New York and other states currently have laws that
make a second conviction for misdemeanor drunken driving, for example, a
felony. Several legal experts said that, if enacted, the policy could be
the first of its kind in the country to make the repeated commission of any
misdemeanor a felony.

The proposals would have to be passed by the State Legislature to become
law. Aides for the Senate majority leader, Joseph L. Bruno, and the
Assembly speaker, Sheldon Silver, said that they had no comment.

Steven M. Fishner, the mayor's criminal justice coordinator, said, "It is
for people like Paris Drake, for offenders who sell marijuana repeatedly in
city parks, and for others who make a career of committing crimes and
skating just under the mandatory sentences for felonies."

Stephen Gillers, a New York University law professor, said that focusing on
serious offenders made sense, but that the proposals should be narrowed to
exclude less serious misdemeanors for acts like spray-painting, writing bad
checks and telling fortunes.

Other legal experts criticized the proposals as knee-jerk reactions to a
high-profile crime. They also said that it was not clear whether Drake even
committed it.

James P. Cohen, a Fordham University law professor, said the proposal would
result in vast numbers of defendants refusing to accept plea bargains for
misdemeanors and instead demanding trials. The city's already overburdened
criminal court system, which currently grants plea bargains in 99 percent
of misdemeanor cases, would collapse and the new policy would fail to deter
crime itself, he said.

"I don't see it as a deterrent except in a tiny number of cases," he said.
"The net effect of doing it, beyond some good public relations, will not be
much, and it's going to make a worse system."

Ms. Lapp said the criminal justice system needed stronger tools to deal
with persistent repeat misdemeanor offenders.

"If the defendants refuse to plea," she said, "then we'll make sure the
courts have the resources they need to try these people."

Fishner said the mayor's proposal was an outgrowth of a law proposed by
Giuliani and Pataki two years ago that would have made a person's fifth
conviction for misdemeanor marijuana sales a felony conviction. That
proposal was an effort against marijuana sellers in Washington Square Park
and other parks. The Legislature has not approved that bill.

In a separate proposal Friday, Police Commissioner Howard Safir called for
people who sell fake drugs to face the same legal penalties as people who
sell real drugs. Citing the example of Drake, a street hustler who
sometimes sold to young people from New Jersey "cocaine" that was actually
detergent, Safir said fake drug sales resulted in street violence. "I've
seen a lot of bodies as a result of these people," he said.

When asked whether a person who tricks someone into buying 10 ounces of
detergent should face the same penalty as a person who sells 10 ounces of
cocaine under the state's strict Rockefeller drugs laws, Safir said they
should not. But he said selling fake drugs should be made a low-level felony.

Professor Cohen questioned how much violence resulted from the sale of fake
drugs and accused city officials of overreacting to the Drake case. "The
notion of punishing the clown who is trying to put over on someone that
soap or detergent is crack, the same as someone who really sells crack, is
nutty," he said.
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