Pubdate: Thu 13 May 1999 Source: New York Law Journal (NY) Copyright: 1999 NLP IP Company Contact: 345 Park Avenue South, New York, NY 10010 Fax: (212) 696-4287 Feedback: http://www.nylj.com/contact.html Website: http://www.nylj.com/ Author: Gary Spencer PAST SUPPORTERS URGE DRUG LAW REFORM ALBANY -- A quarter of a century after they helped to enact the Rockefeller drug laws, a group of former government leaders is proposing a new plan to reform the strict mandatory sentencing statutes they now view as an expensive failure. The plan, which former State Senator John R. Dunne said he will soon begin circulating among lawmakers, would give trial judges much greater discretion over sentencing and plea bargaining for nonviolent drug offenders. It stops short of repealing mandatory drug sentencing provisions of the Rockefeller drug laws or the Second Felony Offender Law, which many reformers have sought. But it goes much farther than bills proposed by Governor Pataki and Chief Judge Judith S. Kaye in giving trial court judges the authority "to tailor dispositions to the specific circumstances of each case," Mr. Dunne, who is of counsel to Whiteman Osterman & Hanna in Albany, said. Trial judges could impose prison terms well below the statutory minimums for the highest-level drug felonies. And for low-level drug crimes, judges would have more power to divert offenders to drug treatment as an alternative to prison. The bill is backed by the Campaign for Effective Criminal Justice, a group of political, judicial and religious figures that Mr. Dunne organized last year to lobby for reform. Members include former Majority Leader Warren M. Anderson, a Binghamton Republican who headed the State Senate when the drug laws were enacted in 1973; former Senator H. Douglas Barclay of Syracuse, who sponsored the measures; and two former Court of Appeals judges, Richard D. Simons and Stewart F. Hancock Jr., whose Court reluctantly, but repeatedly enforced the mandatory sentencing laws. Mr. Dunne, who later served as Assistant Attorney General for Civil Rights under President Bush, co-sponsored the Senate bills in 1973. Political Protection The group was meant to provide some political cover for current lawmakers that would enable them to scale back the drug laws without appearing to be soft on crime. When it launched its campaign, the group said the statutes "have handcuffed our judges, filled our prisons to dangerously overcrowded conditions and denied sufficient drug treatment alternatives to nonviolent addicted offenders who need help." Its bill is designed to correct those problems and the timing of its release is intended to shift the debate toward more comprehensive reform of the drug laws than the Governor proposed last week, Mr. Dunne said. A leading reform advocate, Correctional Association Executive Director Robert Gangi, still prefers the bill sponsored by Assemblyman Jeffrion L. Aubry, D-Queens, which would repeal the mandatory sentencing laws outright. But he said, "The common wisdom might be that this has more political viability than the Aubry proposal." "It represents real reform because it encompasses two fundamental improvements: it is the only proposal besides Aubry's that returns sentencing discretion to trial judges, and it ties all that to expanded use of drug treatment," Mr. Gangi said. The Governor's bill, modeled on a plan proposed by Judge Kaye, would allow the Appellate Division to review class A-I drug felony sentences and to reduce the mandatory minimum term of 15-years-to-life to 10-years-to-life. It would be limited to defendants convicted of drug possession, not sale. For low-level drug offenders, the Governor's bill would ease the Second Felony Offender Law by allowing trial judges to divert nonviolent offenders to drug treatment programs, but only with the consent of the district attorney. Judicial Discretion The bill proposed by Mr. Dunne's group would give trial judges, rather than the Appellate Division, the power to deviate from the mandatory minimums for all class A felony drug crimes based on the nature and circumstances of the crime and the history and character of the defendant. For A-I felonies, judges could impose a term as short as three-years-to-life. For A-II felonies, they could impose probation. Inmates who are already serving life terms for class A drug felonies could seek review of their sentences by the original trial court and receive the same reductions. "When the judge imposed the life sentence his hands were tied," Mr. Dunne said. Giving trial judges, rather than the Appellate Division, "a chance to revisit the sentencing emphasizes our focus on the trial court's discretion." For lower-level drug crimes, the bill would allow judges to defer prosecution for up to two years when the defendant is an addict and agrees to enter a drug treatment program. Prosecutors would be consulted, but their consent would not be required. Reformers have complained the prosecutorial consent requirement in the Governor's bill would hamstring the diversion program. Access to Treatment Under Mr. Dunne's bill, offenders who successfully complete drug treatment would be eligible for dismissal or reduction of the original charges. But prosecutors would have to consent to any reduction. "The district attorney should not be the gatekeeper on access to diversion and treatment," Mr. Dunne said. "The district attorney's legitimate role is in the disposition of charges, so they would retain an absolute right to veto any plea or disposition" below the original charge. Prosecutors would be given the right to appeal a drug sentence as unduly lenient, balancing the existing right of defendants to appeal sentences as unjustly harsh. Other provisions of the bill would: Double the drug-weight thresholds for all drug crimes, and downgrade the "attempt" to commit a drug crime to one felony class below the substantive crime. Eliminate plea restrictions and allow judges in A or B felony cases to accept pleas to lesser crimes which do not mandate imprisonment. Eliminate lifetime probation, but require as a condition of probation that an offender enroll in drug treatment. - --- MAP posted-by: Ken Russell