Pubdate: Thu, 7 Oct 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
Cited: Drug Policy Alliance http://www.drugpolicy.org
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)
Bookmark: http://www.mapinc.org/people/David+Soares

BACKER OF CHANGES IN ROCKEFELLER DRUG LAWS SAYS JUDGES SHOULD GET OFF THE 
SIDELINES

ALBANY -- A leading advocate for reform of the Rockefeller Drug Laws
yesterday urged the judiciary to play a more active role in lobbying
for new narcotics statutes.

John R. Dunne, a retired 12-term state senator, said the statewide
organization of Supreme Court justices has been too silent for too
long. He said the Association of Justices of the Supreme Court should
step forward and not hide behind restrictions on judicial political
activity to avoid taking a strong stance on the drug laws.

"Despite the fact that judges are removed from politics, they still
have significant personal contacts and influence with, not only
legislators, but community leaders," Mr. Dunne said. "I firmly believe
that if the association called upon its members to become actively
involved it would have an enormous impact."

Mr. Dunne championed the harsh drug laws while serving in the Senate
in the early 1970s. He has led an effort for several years to change
the statutes, which he now says were terribly misguided.

Mr. Dunne said in a breakfast speech at the Nelson A. Rockefeller
Institute for Government, a public policy think tank in Albany, that
Mr. Rockefeller would now reject the laws that carry his name. The
former governor's brother, Laurence Rockefeller, said as much last
year in a letter to the The New York Times.

The laws impose mandatory minimums for some drug crimes and result in
lengthy sentences for relatively minor offenses. They have been
roundly criticized. Governor George E. Pataki and lawmakers of every
stripe have repeatedly called for reform.

However, differences in opinion, largely over the relative discretion
of judges and prosecutors to divert defendants to treatment, have
repeatedly frustrated reform efforts.

Mr. Dunne yesterday said the state district attorneys' association has
blocked many reform measures. He called upon the judges to counter the
prosecutors' lobbying, especially since the logjam issue is judicial
discretion.

He argued that judges, not prosecutors, should determine the
appropriate sentence and that judges, not prosecutors, should have the
final say in whether treatment is a better solution than
incarceration. Consequently, Mr. Dunne said, judges ought to step up
and reclaim what, in his view, is a gatekeeping role that should
reside with the judiciary rather than the political branches.

"Judges must be allowed to do what they are trained to do," Mr. Dunne
said. "The final decision to divert a defendant to treatment rather
than commit them to prison should be made by the trial judge. This
discretion, however, should not be exercised without the full
consultation and the advice of the district attorney."

Mr. Dunne said Mr. Pataki, who has granted clemency to several
convicts serving lengthy Rockefeller Drug Law sentences, has assumed
the discretionary powers of the trial judge in ultimately deciding how
long some defendants remain incarcerated for narcotics crimes. He said
the judges should lobby to take back that power.

In response, the president of the Association of Justices of the
Supreme Court said in an interview that he is willing to bring the
issue before the executive committee. But he expressed some doubt over
whether the organization would take a position.

"It is something for discussion, but we are a statewide organization
that has members of many different political persuasions," said
Supreme Court Justice David R. Demarest of Canton, St. Lawrence
County. "I'm not sure I could get the association to take a position
one way or the other."

Changed Attitudes

Rockefeller Drug Law reform has been a major issue at the Capitol for
years. On several occasions, it appeared change was imminent when a
dispute over details again derailed that effort and sent frustrated
advocates and lawmakers back to the drawing board.

Mr. Dunne suggested that a stunning upset in the Albany County
district attorney Democratic primary last month may change the
political dynamics. In the past, some politicians have been reluctant
to change the drug laws out of concern they will be labeled soft on
crime.

Last month Paul A. Clyne, an entrenched law-and-order Democrat in a
heavily Democratic and conservative county, was defeated in the
primary by a 34-year-old, largely unknown and largely inexperienced
former assistant running on a drug law reform platform.

David Soares called for broader changes than Mr. Clyne and the state's
other district attorneys have been willing to accept. He trounced the
incumbent in what was primarily a one-issue campaign. If Mr. Soares
prevails in November, he will become the first district attorney in
the state elected on a drug law reform platform.

"This is 'Exhibit A' in how attitudes have changed," Mr. Dunne said.
"It seems the people are ahead of their elected officials."

By coincidence, a hearing is scheduled for today before Justice
Bernard J. Malone Jr. of Albany Supreme Court on whether Mr. Soares
received illegal campaign funds.

Several political organizations allege that the Drug Policy Alliance,
which opposes the Rockefeller Drug Laws, contributed $81,500 to the
Working Families Party, which in turn helped fund Mr. Soares' primary
campaign. State election law bars one party from attempting to
influence another party's primary. It also restricts the amount of
money an advocacy group can contribute to a candidate.

Issue of Timing

Meanwhile, the Drug Policy Alliance, a major proponent of the
legalization of marijuana for medical uses, is pointing to Mr. Soares'
2-to-1 primary victory and warning politicians that opposition to
changing the laws may cost them their jobs.

"For the first time in contemporary American history, voters have
thrown a politician out of office because he's a drug war zealot," the
George Soros-funded group says on its Web site.

Since Mr. Soares primary victory, many of the most prominent Democrats
in Albany have backed away from Mr. Clyne. Mr. Clyne remains a
candidate on the Independence line. A Republican, Roger Cusick, is
also on the ballot.

Mr. Dunne, who has watched reform efforts fail for years, said he
agrees with the Drug Policy Alliance that the time may finally be ripe
for major revisions to the drug statutes.

"Not only are the stars in alignment, but people are beginning to look
at them and see the light," he said.

Mr. Dunne, who refers to himself as a "Rockefeller Republican,"
represented Long Island in the Senate for 24 years. He is now counsel
to the Albany firm Whiteman, Osterman & Hanna.

The Rockefeller Institute, which sponsored yesterday's event, is the
public policy research arm of the state university system.
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MAP posted-by: Richard Lake