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January 8, 2006 - New York Times (NY)

Reform The Reforms

By Leslie Crocker Snyder, former New York State Court of Claims judge and candidate for Manhattan district attorney in the 2005 Democratic primary.

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ABOUT a year ago, the New York State Legislature made a number of revisions to the Rockefeller drug laws. The most significant changes involved reducing sentences for nonviolent drug offenders, raising the amount of drugs required for top-level possession charges and allowing defendants serving a life term to apply for a reduced sentence. The primary goal was to grant low-level drug dealers relief from overly harsh sentences.

These measures were a step in the right direction, but unfortunately they fail to take into account drug kingpins. As the new legislative session begins this month, the priority should be to retain severe sentencing for major drug dealers while providing more alternatives to incarceration and more treatment options for low-level addicts and small-time dealers.

To do this, we must provide judges with greater discretion in determining which defendants should be placed in alternative sentencing and treatment programs. We must pass legislation that provides for more such programs. And we must enact a kingpin statute to ensure that major and violent drug predators are sentenced appropriately and cannot have their sentences reduced.

I was the judge who presided over many of New York City's most serious drug cases in the 1980's and 90's. In a number of these cases, judges, after a resentencing hearing mandated by the changes to the Rockefeller drug laws, have recently reduced these sentences - inappropriately so.

For example, I sentenced a violent drug dealer to more than 33 years in prison. He had sold crack and heroin on the Lower East Side of Manhattan for years and threatened to send the two lead detectives' children back to them "in a box." He recently had his sentence reduced by a judge who apparently based his decision on the defendant's somewhat positive prison record. If I had not been retired from the bench, I would have heard his request for resentencing and been highly unlikely to have granted it.

On the other hand, many defendants should never have been sentenced under the original draconian Rockefeller drug laws. For example, as in many cases, I once placed a defendant, who was charged with possession of cocaine and faced a sentence of 25 years to life, in a rehabilitation program because it was his first and only offense and the prosecutor consented. In the program, he took classes and received counseling and job training for two years, followed by another two years of supervision. Since then, he has become a productive, law-abiding member of society.

Under the current laws, the prosecutor's consent is still required in many cases before a defendant can be placed in a rehabilitation program. But judicial discretion in sentencing is critical. Judges, not prosecutors, must be allowed to determine which defendants are eligible for alternatives to incarceration. Why judges? Because they are not advocates but neutral arbiters who seek to impose an appropriate penalty in each individual case.

There must be adequate, meaningful treatment programs from which a court can choose. Many defendants in serious drug cases must be required to plead guilty before being placed in such a program. The administrators of the program must report regularly to the court. And it is essential that the court continue to monitor the defendant, and that the program provides support.

If the defendant completes the program successfully, the court should have the discretion to reduce or dismiss the charges in some cases. This is the ultimate incentive for treatment and rehabilitation.

Programs like Abraham House provide counseling, job training, education and re-entry support in addition to substance abuse treatment. Of those who have completed that program, less than 1 percent have returned to jail. And the best part of all this is that by sending fewer people to jail, we can use the money saved to finance similar programs, giving hope to those who need it.

But we cannot forget the other side of the drug industry -- the violent kingpins. A kingpin statute is a necessary component of any drug-law reform. Sentences for kingpins shouldn't be reduced except in rare instances. And if the original sentencing judge is unavailable to consider a resentencing application, perhaps a panel of three judges where the majority rules would be appropriate.

In most criminal justice legislation, too often politics prevents the Senate and the Assembly from agreeing to meaningful reform. To make passage of drug reform legislation more likely and to monitor its effects, I propose a "sunset" clause, which would require periodic assessments of these reforms and a review in three to five years to evaluate their effectiveness and to determine if the legislation should be renewed.

In our system there is a place for tough sentencing, a place for leniency and a place for rehabilitation. We have reached one of our goals in the reduction of the sentences for some drug offenders, although not always the appropriate ones. But breaking the cycle of recidivism and violence will continue to be a challenge.

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