A Response to Reforming Rockefeller Drug Laws In the early 1970s, then-Governor Nelson Rockefeller led an effort to enact mandatory

sentencing laws for drug offenses to deter the proliferation of drugs.1 This effort culminated in the enactment of one of the nations toughest sentencing schemes for drug offenders, which established mandatory incarceration periods based on the measured weight of the drug possessed or sold.2 inception.3 The new laws required, among other things, a sentence of 15-years-to-life for a conviction (even for a first-time conviction) for selling one ounce or possessing two ounces of a controlled substance, required incarceration for all Class A, B and C drug felonies, eliminated the ability of judges to impose non-prison sentences for repeat felony offenders and, in place of this discretion, imposed mandatory minimum sentences.4 Class A drug felonies were The so-called Rockefeller Drug Laws (RDL) was criticized almost from their

categorized into three different characterizations (A-I, A-II and A-III), reflecting the amount of drugs sold or possessed.5 Today, criticism still surrounds the RDL despite the myriad amendments that have been enacted over the years.6 Indeed, referring to the current statutes as Rockefeller Laws is a
1 2

Edward J. Maggio, New Yorks Rockefeller Drug Laws, Then and Now, 78 N.Y. ST. B.J. 30 (2006). Id. at 30-31; see also N.Y. Penal Law art. 220. 3 Maggio, supra note 1 at 31; Laws of 1973, ch. 276, 9, 10, 25. 4 Laws of 1973, ch. 277, 9; see Pamala L. Griset, DETERMINATE SENTENCING: THE PROMISE AND THE REALITY OF RETRIBUTIVE JUSTICE, 66-67 (1991). 5 New York State Commission on Sentencing Reform, THE FUTURE OF SENTENCING IN NEW YORK STATE: RECOMMENDATIONS FOR REFORM, 69 (2009) [hereinafter Sentencing Commission]. 6 The RDL were amended in the late 1970s (possession of less than 7/8ths of an ounce of marihuana was decriminalized and the weight of drugs required to necessitate the 15-year-to-life sentence was increased), 1988 (lowering the threshold weight of drugs for cocaine possession), 2001 (the Felony Drug Law Reform Act was passed), 2003 (legislation enacted enabled 80% of the drug offenders sentenced annually to be eligible for shorter sentences, allowed 446 inmates currently serving 15-to-life sentences to petition for a reduction, and shortened sentences for any non-violent offender), 2004 (a bill was enacted that abolished the 15-year-to-life sentences for the highest level of drug offenders in favor of determinate terms ranging from 8 to 20 years and the bill doubled the weight of drugs required to trigger prison sentences), 2005 (various reforms to the sentencing process illustrated in the text). See, e.g., John F. Galliher & Steven E. Murphy, The Process of Marijuana Decriminalization in the United States: 1973-1978 (1986); Penal Law 220.06[5]; J. Fellner, Failing the State, A Critique of Felony Drug Reform Act of 2001Proposed by Governor Pataki, Hum. Rights Watch J. (2001); Bureau of Statistical Services of the New

misnomer,7 as they are beyond substantive recognition. In Being Smart on Crime: Real Reform of the Rockefeller Drug Laws, Andrew Dructor, relying heavily on the New York Civil Liberties Union, espouses the usual arguments in support of more reform: economic derivatives, racial disparity, lack of a deterrent effect and the need for treatment, particularly in cases of socalled non-violent offenders. Each of these justifications simply fails to persuade, especially in the face of well-reasoned arguments for the status quo. I hope to dispel the myths underlying the movement to reform these laws as well as to convince the Legislature to keep the RDL as they are. 21st Century Reforms Since the passage of the RDL, legislative efforts have ameliorated the more rigid elements of the laws. For example, the Legislature enacted the Drug Law Reform Act (DLRA) in 2004.8 The DLRA eradicated life sentences for Class A felony drug offenders and doubled the weights needed to trigger certain Class A felony drug possession crimes.9 In addition, all drug sentences were made determinate, shorter sentences were imposed and plea restrictions were relaxed.10

York State Division of Criminal Justice Services, (2004) available at http://www.criminaljustice.state.ny.us/crimnet/ojsa/dispos/nys_drug.htm; Michelle ODonnell, Pataki Signs Bill Softening Drug Laws, N.Y. Times, Aug. 31, 2005 at B6; Barry Kamins, 2005 Legislation Affecting the Practice of Criminal Law, 78 N.Y. ST. B.J. 20, 22-23 (Jan. 2006); Maggio, supra note 1 at 30, 32; Madison Gray, A Brief History of New Yorks Rockefeller Drug Laws, TIME, April 2, 2009. 7 Gray, supra note 4. 8 Laws of 2004, ch. 738; see Maggio, supra note 1 at 33. 9 Sentencing Commission, supra note 5, at 70. 10 See id. at 70-71 (For example, the minimum sentence for an A-I felony drug offender with no prior felony convictions dropped from an indeterminate term of 15 years to life, to a determinate term of eight years. For firsttime Class B felony drug offenders, a determinate term of 1 to 9 years replaced the prior indeterminate range of 1 to 3 years (minimum) up to 81/3 to 25 years (maximum).).

In 2005, more changes were enacted. For Class A-II felonies, a merit time allowance was put into place and judges were given more discretionary power in imposing determinate sentences.11 These changes have had a significant effect on drug sentencing policies in New York.12 For example, 252 Class A-I felony drug offenders have been resentenced pursuant to the DLRA and released from custody fifty months prior to their previously calculated earliest release dates.13 232 Class A-II felony drug offenders were resentenced and released thirteen months prior to their previously calculated earliest release dates.14 Upon further examination, the new amendments have enabled a high number of drug offenders to receive determinate sentences. In 2005, only 38% of new drug commitments were offenders with a determinate sentence, but that number has increased to 91% in 2007.15 Notably, for first-felony drug offenders, the average sentence is only 23.6 months; for second-felony drug offenders, the average sentence is only 33.2 months.16 Recently, the New York State Legislature reached a compromise to authoriz[e] judges to sentence certain lower-level, first felony drug offenders and lower-level, second-time, nonviolent drug felons to probation, local jail time, or both.17 The compromise also provides for a statutorily authorized diversion treatment program.18 But for the NYCLU, Dructor and other opponents of the RDL, this just isnt enough.
11

Maggio, supra note 1, at 33-34 (For a first offense, the range is between three and 10 years, while second felony offenders with prior non-violent convictions have a six-to-14-year range. Second felony offenders with a prior violent offense face an eight-to-17-year range.). 12 Sentencing Commission, supra note 5, at 74. 377 Class A-I felony drug offenders have been resentenced under the DLRA. See id. at 74 n.215. 13 Id. at 74. 14 Id. 15 Id. at 74 n.217. 16 Id. 17 Press Release, Sheldon Silver, Silver, Assembly Hail Progress in Ten-Year Battle to Reform Rockefeller Drug Laws (Mar. 27, 2009) (http://assembly.state.ny.us/Press/20090327a/). 18 Id.

Non-violent Offenders Proponents of changing the current sentencing scheme tend to overly promote this notion of fundamental unfairness to so-called non-violent offenders. First of all, referring to drug offenders as non-violent is misleading. All drug offenders are non-violent because a drug crime is a non-violent crime. At first glance, allowing judicial discretion in sentencing for nonviolent offenders seems reasonable. But, upon further reflection, a non-violent offender is, by extension, a violent offender and because of the propensity a drug offender has to commit violence, avoiding incarceration only increases that risk. For example, lets examine the use of cocaine in New York. Colombian and Mexican drug trafficking organizations are the primary distributors of wholesale amounts of cocaine in New York.19 Cocaine is trafficked into New York City and then distributed to a larger group of sellers across the state.20 Cocaine is a source of violence, especially when new dealers challenge more established dealers over territory.21 It is beyond dispute that an individuals drug habit provides a source of income to dealers. Dealers, in turn, fight so-called turf wars. To say that a persons drug addiction is an innocuous crime, as in one that only harms the user, is to ignore reality. Be that as it may, to be classified as a non-violent felony drug offender, the drug offender must not have been adjudicated for a violent felony offense, as defined in Penal Law Section 70.02(1).22 There is little doubt that an association between drugs and violent crimes exist. This

19

See U.S. Drug Enforcement Administration, Fact Sheet: New York, (2008) available at http://www.usdoj.gov/dea/pubs/state_factsheets/newyork.html [hereinafter NYDEA]. 20 Id. 21 Id. 22 See Penal Law 70.02(1).

association has been established in a psychopharmacological, economic compulsive and systemic sense.23 Psychopharmacological violence suggests that some drug offenders may exhibit violent behavior as a result of their ingestion of controlled substances.24 Such violence can erupt in the home, at the workplace, in a bar, or even on the streets. In many cases, this sort of violence is not reported. Economic compulsivity caused violence refers to a situation where a drug user engages in economically motivated violent crime, such as robbery, to support his or her costly drug habit. 25 In 1991, a joint survey was conducted where both Federal and State inmates were asked whether they committed an offense to obtain money to support drug use.26 Seventeen percent of State inmates and ten percent of Federal inmates reported committing their offense to get money to buy drugs.27 For those convicted of robbery, 27% of both Federal and State inmates admitted that they committed robbery to buy drugs.28 In 1997, nineteen percent of State inmates and sixteen percent of Federal inmates said they committed their current offense to obtain money for drugs.29 Systemic violence refers to violence within the system of drug distribution, as in the drug enterprise itself.30 Some examples of such violence include (1) disputes over territory, (2) violence committed to enforce in-house codes, (3) robberies of drug dealers followed by retaliation by his/her boss, (4) silencing informers, (5) punishment for selling phony or
23

See Paul J. Goldstein, The Drugs/Violence Nexus: A Tripartite Conceptual Framework, 14 J. of Drug Issues 493 (1985) available at http://www.drugpolicy.org/docUploads/nexus.pdf. 24 Id. 25 Id. 26 Drug Policy Information Clearinghouse, Drug-Related Crime, available at http://www.whitehousedrugpolicy.gov/publications/pdf/ncj181056.pdf (Mar. 2000) [hereinafter Drug-Related Crime]. 27 Id. 28 Id. 29 Id. 30 Goldstein, supra note 23.

adulterated drugs, and (6) disputes over drugs.31 The risk of a drug offender becoming a victim or a perpetrator of systemic violence only increases as their drug-using careers progress.32 Drug use has a strong numerical correlation to violent crime. Incarcerated offenders were often under the influence of drugs when they committed their offenses.33 In fact, nearly a quarter of Federal prisoners and nearly thirty percent of State prisoners who committed violent felonies (murder, sexual assault, robbery, etc.) reported being under the influence of drugs at the time of their offense.34 The notion that first-time felony drug offenders should avoid jail time and receive treatment ignores these realities. Simply because, at the time of his or her arrest, the drug offender has not committed a violent felony provides little comfort to society given the propensity of drug users to commit violent crime. Take the recent activity by the Mexican cartel in Arizona as an example of the dangerous association of drugs and violence. Fueled by the insatiable demand for drugs, intruders broke into the home of a young family, while the mother was bathing their three-year old son.35 The father was pistol-whipped around the home as the attackers demanded money.36 Sergeant

Azuelos comment is illustrative of how violent drug users/distributors can be: [a]t least they didnt put the gun in the babys mouth like weve seen before.37 In Albany, New York, we recently discovered the causal connection between drugs and the potential for violence. On January 29, 2008, Jovan Underdue, fired bullets into the heads of

31 32

Id. Id. 33 Drug-Related Crime, supra note 26. 34 Id. 35 Randal C Archibold, Mexican Drug Cartel Violence Spills Over, Alarming U.S., N.Y. TIMES, Mar. 22, 2009. 36 Id. 37 Id.

Bobby Jones, Victor Anderson and Kenyon Hankins after drinking French vodka and smoking pot.38 In a confession, Underdue claimed that he just lost control.39 While drug use is not conclusive evidence that a drug offender will commit a violent crime, the relationship between drugs and those who commit violent crime establish sufficient nexus to cast into doubt the argument that penalties are too stiff for those classified as nonviolent offenders. Race Opponents of the RDL often cite the racial disparity of incarcerated drug offenders in support of its position. The position that the RDL are racist, as though the law itself only applies to minorities is untenable. The problem does not lie with the law itself, but with its enforcement and other factors. Too often, law enforcement efforts focus almost entirely on inner city communities of color.40 Generally, more violence is involved in the drug trade in low-income, inner city communities and is therefore more visible and more disruptive, which necessitates a greater demand for police response.41 Much of the drug activity among white people takes place behind the closed doors of offices and living rooms whereas most of the drug trade in low-income black and Latino neighborhoods is carried out on the streets where it is much easier to make arrests.42 Another factor, at least with respect to incarceration rates, is the ability of white middle and upper-class people who involve themselves in the drug trade often have the resources and
38

Robert Gavin, Triple Murder Trial of Jovan Underdue Begins in Albany, TIMES UNION, March 30, 2009 available at http://blogs.timesunion.com/crime/?p=718. 39 Id. 40 Policy Paper Urging New York State Leaders to Repeal the Rockefeller Drug Laws, Correctional Association Policy Paper, 3 (2008) available at http://www.correctionalassociation.org/publications/download/ppp/Say_No_to_35_Years_of_Injustice.pdf. 41 Id. 42 Id.

political influence to resist law enforcement attempts to punish them through high-priced attorneys and other means.43 This argument also flies in the face of a recent study conducted by the Sentencing Project which shows that the number of African-Americans in state prisons for drug offenses has declined, while the number of whites in state prisons has substantially increased.44 Between 1999 and 2005, the number of African-Americans incarcerated for drug offenses declined by 21.6%, while the number of whites incarcerated for drug offenses increased by 42.6%.45 But, are all our other criminal laws racist as well? As of March of 2006, 78% of incarcerated inmates were either African-American or Hispanic compared to only 19.9% of whites.46 As a final thrust, Dructor makes a point to discuss the effect incarceration has on families. In doing so, he ignores the effective drug use has on family life. In 1994, of the childabuse fatalities among children previously known to the authorities in New York City, over three quarters involved some degree of parental drug involvement, and a similarly large percentage of the citys, if not the states, overall child welfare caseload involved drug cases.47 In the Legislatures view, the correlation between drug abuse and child neglect is such that proof of drug abuse is prima facie evidence of child neglect.48 Accordingly, the Legislature allows a court to make a finding of neglect based solely on a [parents] misusing a drug or drugs.49 To

43 44

Id. Marc Mauer, The Changing Racial Dynamics of the War on Drugs, The Sentencing Project, 5 (2009) available at http://sentencingproject.org/Admin/Documents/publications/dp_raceanddrugs.pdf. 45 Id. 46 The Nelson A. Rockefeller Institute of Government, 2007 NEW YORK STATE STATISTICAL YEARBOOK, 329 (2007). 47 Besharov, Practice Commentary to Family Court Act 1012, McKinney's Cons. Laws of N.Y. Book 29A, at 351; see also In re Maximo M., 186 Misc.2d 266, 274 n.14 (N.Y. Fam. Ct. 2000). 48 In re Maximo M., 186 Misc.2d at 274. 49 Id.

argue that incarceration penetrates the family shell ignores the practical effect of drug use in the family home. Deterrence and Treatment Opponents of the RDL point out that there is not deterrent effect of imprisonment. While the truth of that statement can be debated, citing an alleged lack of deterrence ignores one of the core principles of incarceration: punishment. Drug offenders should be punished for breaking the law. Incarcerating drug offenders ensures that, during the incarceration period, they will not be on the street peddling or buying drugs. With respect to treatment, I completely support voluntary treatment programs being made available to incarcerated drug offenders.50 But they should be punished for their crimes, not just treated. I have many doubts about the effectiveness of mandatory drug treatment programs particularly when it will only lead to large number of un-rehabilitated addicts hitting the streets because the few addicts that actually wanted to get clean will always be severely outnumbered by those simply looking to avoid jail time. In sum, the RDL serve a purpose: to punish those who willfully break the law. To lessen sentences and release convicted drug offenders will only enable these drug offenders to continue peddling and using drugs. While I agree that some treatment programs should be made

available, the solution to New Yorks drug problem is not to release those who are incapable of straying from their drug lifestyles.

50

The New York State Commission on Sentencing Reform has set forth a number of proposals for treatment. See Sentencing Commission, supra note 5, at 94-133.