Governor Pataki’s Rockefeller Drug Law Proposal Good First Step but not Real Reform, Critics Say

The Lindesmith Center-Drug Policy Foundation (TLC-DPF), the leading drug policy reform organization in the United States, commends New York Governor George Pataki for joining the growing number of public officials who are willing to call into question the needlessly punitive drug sentencing policies of the past and promote legislation that recognizes the effectiveness of drug treatment over incarceration. Enacted in 1973, the Rockefeller Drug Laws and Second Felony Offender Laws mandate sentences for drug offenses that are among the most punitive in the nation. For example, the harshest provisions mandate judges impose sentences of 15 years to life for anyone convicted of possessing 4 ounces or selling 2 ounces of any narcotic. The penalties apply without regard to the circumstances of the offense or the individual’s character or background. Yesterday Governor Pataki unveiled his proposal for reforming New York’s draconian Rockefeller Drug Laws.

“The Governor details fundamental elements that should be part of a reform package and makes some promising statements about the need for diversion into treatment,” said Deborah Small, Director of Public Policy and Community Outreach at The Lindesmith Center – Drug Policy Foundation, “However, there are a number of ways that the plan must be enhanced for it to truly be considered reform.”

TLC-DPF thinks that this proposal represents a good first step towards substantive reform in that it addresses, if only to a limited extent, some of the key elements of the law that need revision, specifically reduction in sentences and restoration of judicial discretion. Nonetheless, TLC-DPF finds substantial flaws in the proposal for Rockefeller Drug Law reform outlined today by New York Governor George Pataki, specifically in the following areas:

Relief for Incarcerated Drug Offenders

Admirably the Governor’s proposal acknowledges the need to provide relief to the hundreds of individuals serving excessively long sentences under the harshest provisions of the laws. Unfortunately, his proposed reduction is only with respect to the minimum sentence and does not limit the current maximum sentence of life imprisonment. For instance, an A-1 offender, who would have received a sentence of 15 years to life under the Rockefeller Drug Laws, would get 10 years to life imprisonment under Pataki’s plan, with the possibility of a reduction to 81/2 years only on appeal. His proposal does not address the relatively low threshold for categorizing offenders as A-1 felons, leaving in place the current weight-based classification which has resulted in many drug offenders receiving excessive sentences for minimal involvement in a drug transaction. Additionally, a huge proportion of those already serving unduly harsh mandatory minimums will not be covered under this proposal. Only A-1 offenders can apply to have their sentences reconsidered under the plan. A-1 offenders account for a little over 600 (less than 3%) of the 21,000 prisoners in New York State on drug charges. Sentencing reform should be retroactive for all categories of felony drug offenders so that inmates currently incarcerated under these laws can petition the courts for reduction of their sentences. Restoring Judicial Discretion to Fashion Appropriate Sentences.

Restoring Judicial Discretion to Fashion Appropriate Sentences

An essential element of any proposal to reform the Rockefeller Drug Laws is the restoration of discretion to judges to mete just punishment after considering the nature of the offense and the character or motivation of the offender. In order for this to occur, judges must have the ability to tailor criminal sanctions to reflect the relevant factors in each case. These include the offender’s conduct, prior criminal history, role in the crime, assistance provided to the authorities, work history and family circumstances. Except for drug kingpins, sentences for felony drug sale and possession should be substantially reduced so as to be proportionate with sentences for other non-violent crimes. Governor Pataki’s proposal retains mandatory minimum sentencing for the vast majority of drug offenders – those sentenced under the Second Felony Offender Laws, enacted the same year as the Rockefeller Drug Laws. The proposal tinkers with the current scheme by reducing the minimum sentence for certain repeat offenders (those with prior non-violent felony convictions), while increasing sentences for other categories of repeat offenders (those with any prior violent felony conviction). Sentences should be proportionate to the crime and culpability of the offender.

Drug Treatment Diversion for Addicted Offenders

Drug Treatment is a more cost efficient and human response to addiction than incarceration. Trial judges should have discretion to sentence non-violent addicted offenders to court-supervised community-based treatment where appropriate. Under Governor Pataki’s proposal judicial discretion to divert non-violent addicted offenders into treatment is limited to second-time felony drug possession offenders only. Prosecutors would retain most of the sentencing leverage, especially cases involving Class B defendants, where almost all charges for sales are categorized. The court’s ability to divert addicted offenders into drug treatment should be based on the individual’s circumstances; not the charged proffered by the prosecution. Additionally, it is clear that alcohol and substance abuse treatment, as well as alternative to incarceration programs should be expanded to accommodate increased diversion from incarceration of appropriate offenders. The Governor’s stated commitment to increasing treatment opportunities for non-violent drug offenders is noticeably absent from the budget proposal issued by his office yesterday. There is no budgetary allowance for an expansion of treatment. In fact, funds for OASAS the principal agency that licenses and monitors drug treatment programs are reduced under Governor Pataki’s 2001 budget. Instead of providing money for expanding drug treatment, the Governor’s budget sets aside over $1 million to increase the number of parolees subject to quarterly drug testing. The purpose for the increased drug testing is not clear.

“The Governor’s proposal is a positive one in the sense that it allows for increasing alternatives to incarceration for low level, non-violent drug offenders. It is a floor upon which more comprehensive discussions on reform can be based,” said Deborah Small. “Until a Rockefeller Drug Law reform plan is broad enough to restore substantive judicial discretion and provide relief for the majority of prisoners serving sentences that are disproportionate to their crimes, it will not constitute real reform.”

Drug Kingpin Reform

The current definition of “drug kingpin” is in substantial need of reform. A definition that relies primarily on the weight of drugs involved in a transaction is not consistent with the current realities of drug trafficking organizations. The current standard of two ounces for sales and four ounces for possession has resulted in the prosecution of hundreds of defendants as “drug kingpins” who were only marginally involved in drug operations or were unwitting drug couriers or “mules”. New York would be better served by utilizing the definition of “drug kingpin” applied in federal drug prosecutions, that is based on evidence of a continuing criminal conspiracy to violate narcotics laws, involving numerous participants, over which the defendant exerts “substantial control” and derives “substantial profits.”

Prosecutor-Sponsored Prison Diversion Program for Substance Abusing Offenders

Governor Pataki’s proposal provides that repeat drug offenders ineligible for court-ordered diversion would be eligible for an 18-month residential treatment program sponsored by county district attorneys (currently known as SHOCK incarceration). Upon successful completion (as determined by the prosecutor) the defendant would be eligible to have the charges dismissed. However, if the offender fails to successfully complete the program, a mandatory sentence would be imposed and the defendant would receive no credit for time served in treatment.

As stated previously, a major flaw in the Pataki proposal is that it would retain prosecutorial discretion to determine whether an addicted offender can be diverted to treatment in all cases in which the offender was charged with a sales offense. One can argue that the language of the provision could have the unintended consequence of encouraging prosecutors to charge more defendants with sales offenses in order to retain their power to determine final disposition.

Additionally, the provision indirectly creates a disincentive to participate in drug treatment for those most in need of it – long term and/or hard-core addicts – by punishing failure with a sentence of imprisonment that does not provide credit for time served in mandatory drug treatment.

New Drug Offense Targeting Internet Sales

We are not aware that there has been any significant increase in illegal drug trafficking via the internet. To the extent Internet drug sales are a significant problem, this is an area in which federal law enforcement would exercise appropriate jurisdiction not state law enforcement.