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March 14, 2006 - Newsday (NY)

State Drug Reform Law Needs To Reform ... Itself

By Anthony Papa, the author of "15 To Life: How I Painted My Way to Freedom."

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Just more than a year ago, Albany launched a partial reform of New York's drug laws through the Drug Law Reform Act of 2004.

The State Legislature boasted that the new changes would lower most drug sentences, allow for the application of retroactive resentencing, increase time off for good behavior for drug offenders and expand prison-based drug treatment. In theory, the implemented changes were to affect about 1,000 prisoners. But these changes weren't effective.

I once served 12 years in prison for a first-time, nonviolent drug offense, and I've been working for meaningful reform of these laws for the past nine years. I have worked the political spectrum of the issue, meeting with the governor and legislative leaders. I have broken bread with the family members and the prisoners who have been affected by these draconian laws. I know this issue inside-out and recognize what needs to be done to remedy the problem.

According to the Drug Policy Alliance, an advocacy organization based in New York, almost 70 percent of the people eligible for relief under the new drug reform act are still in prison. One of the main reasons is that the act gives judges a wide range of sentencing options for those who apply for resentencing. Judges could reduce the sentence of a first-time offender who has already served a lengthy term to as little as eight to 20 years.

But prosecutors almost always argue for the maximum sentence, relying on facts about acts done many years earlier and ignoring the record of rehabilitation while in prison. This omission impedes the process tremendously.

The most controversial sticking point of Rockefeller reform is judicial discretion in drug sentencing. Under the 2004 law, judges have very limited power to place a drug offender into treatment. Instead, the power is held by the prosecutor, who also decides what charges are made and how the plea process is applied.

Reform advocates argue that this is unfair. Such power should not be controlled by the one party who measures success by conviction rates. Referral to treatment, by the way, is not considered a win by the prosecutors. Instead, discretion should be made available to the judge, who is the one objective person involved in the case.

Legislation intended to lead to further reform of the drug laws is expected to be introduced in the Assembly next month. But chances of its passage this year are regarded as slim.

Drug treatment has not been expanded in state prisons. While I was incarcerated in Sing Sing under a 15-to-life sentence, I saw that the majority of prisoners around me were there because of small-time drug crimes. Many had drug habits. Proper drug treatment programs were not available then and are not available now.

Under the 2004 reforms, the State Legislature did not fund community-based treatment. This is a cost-effective way to reduce drug abuse. Without proper funding, increased numbers of people will be forced to compete for limited treatment slots. The cycle of addiction will continue, along with crime and recidivism.

The legislature also failed to address the application of resentencing eligibility for 4,800 B-level felons who comprise the largest group of drug-war prisoners. New York drug laws define offenses according to the weight of the narcotics involved in individual cases. Thus, an A-1 felony -- the most serious -- involves the largest quantities. An A-2 felony involves somewhat less.

The sale of a small amount of drugs can be equated with a B-level crime such as armed robbery or rape, carrying a sentence of up to nine years for a first offense. Establishing a quantity requirement for the B-level sale of a narcotic drug, as is the case for other drugs, would remove many of the lowest-level street sales from the category of B felonies.

This change would reduce the prison population, making the cells now occupied by small-time drug offenders available for violent offenders, without an additional financial burden.

The governor and the legislature should be applauded for taking the initial step in reforming the Rockefeller drug laws. But the partial reforms are not reaching the people they were intended to help.

We must continue to challenge the legislature and the district attorneys to apply these changes effectively and, more important, compel further meaningful reform.

Copyright 2006 Newsday Inc.

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