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March 1, 2009 -- New York Times (NY)

Legislation to Overhaul Rockefeller Drug Laws Moves Ahead Swiftly

By Jeremy W. Peters

Return to Drug War News: Don't Miss Archive

On a fall afternoon in 2002, the New York City police broke up a protest in front of Gov. George E. Pataki's office in Midtown Manhattan and hauled a dozen demonstrators away.

The protesters were demanding that Mr. Pataki repeal the state's 30-year-old drug sentencing laws, widely regarded as the nation's most unforgiving. One of those placed in plastic handcuffs and carted off to a police station was a state senator named David A. Paterson.

Now, with Mr. Paterson in the governor's mansion and Democrats in control of both houses of the State Legislature, an aggressive effort is under way to finally dismantle what remains of the stringent 1970s-era drug laws, which imposed stiff mandatory sentences as a way to combat the heroin epidemic then gripping New York City.

The Assembly is expected to pass legislation on Tuesday that would once again give judges the discretion to send those found guilty of having smaller amounts of illegal drugs to substance-abuse treatment instead of prison and allow thousands of inmates convicted of nonviolent drug offenses to apply to have their sentences reduced or commuted.

Meanwhile, the governor's office is preparing legislation that it plans to present to Senate leaders on Monday that would also give judges discretion in sentencing, according to a senior administration official involved in drafting the bills. But for now, the governor is not taking a position on whether sentences should be reduced for some prisoners.

For its part, the Senate is expected to take up legislation in the coming weeks that would also be aimed at strengthening judges' roles in sentencing.

"Returning discretion to judges is really the heart of where we want to go," said Jeffrion L. Aubry, an assemblyman who represents Queens and has led efforts to overturn the statutes, known as the Rockefeller drug laws because Gov. Nelson A. Rockefeller made them a centerpiece of his agenda.

"When we take away those mandatory minimums and restore judicial discretion, that's when you can say Rockefeller is no longer there," Mr. Aubry said.

The State Legislature has already eliminated the stiffest provisions of the laws, doing away in 2004 with life sentences for drug crimes and reducing other penalties for the most serious offenses.

But now Democratic leaders see an opportunity to take aim at the judicial underpinnings of the laws by untying the hands of judges, who are often bound to mandatory minimum sentences even for less serious drug crimes.

As lawmakers debate changing the drug laws in the weeks ahead, restoring judicial discretion will be one of the thorniest issues in the discussions. The Assembly speaker, Sheldon Silver, said he thinks any plan that does not give judges authority to send drug offenders to treatment is doomed to fail.

"I think any bill that doesn't provide that diversion option is really not something that's significant reform, plain and simple," Mr. Silver said in an interview. "There is nothing else at this point that would be meaningful in terms of reform."

But the idea of restoring full judicial discretion is troubling to many prosecutors, who in a vast majority of drug crimes must give consent before a suspect is ordered to a treatment program.

"The district attorney's input would be taken out of the equation," said Bridget G. Brennan, the special narcotics prosecutor for New York City. "When I look at cases, I want to have the discretion as gatekeeper, to make sure that somebody I put back out in the community is not going to pose a public safety threat. A district attorney has a much clearer picture of a community's concerns."

But under the plans favored by the governor, the Assembly and the Senate, prosecutors would lose that veto power.

Senate Republicans, who hold 30 out of the 62 seats in the chamber and could block a bill that they deem too lenient by recruiting just one Democrat, are concerned about any drug laws that would allow offenders to use treatment as a get-out-of-jail-free option.

"We can give judges more latitude, but we have to make sure there's someplace for drug felons to go, and that they don't just walk out," said Senator Dale Volker, who represents a district outside Buffalo and who led the Senate committee that oversaw the changes to the Rockefeller laws in 2004.

"There are a lot of questions to be answered," Mr. Volker said. "How will these people stay in treatment? Will they just end up back on the street?"

The lack of what those involved in criminal justice considered successful treatment programs led Rockefeller to seek life sentences for the most serious drug offenses. Though Rockefeller initially helped build one of the most extensive state treatment programs in the nation, he became exasperated as drug felons slipped through the cracks and New York's drug epidemic only grew worse.

"By 1973, Rocky was disgusted and frustrated," said Pamala Griset, an associate professor of criminal justice and legal studies at the University of Central Florida. "So what he proposed was a 180-degree turnaround from the rehabilitative sentencing structure he first favored."

Beyond undoing the last of the Rockefeller-era laws, those supporting the reforms being shaped in Albany say, New York should establish a treatment program that serves as a national model different from the one the state created 35 years ago, when the laws became the impetus for a nationwide movement toward extended mandatory drug sentences.

"This is an opportunity to reduce the number of people who are in prison for nonviolent drug offenses," said Senator Eric T. Schneiderman, a Democrat who represents Upper Manhattan and the Bronx and is sponsoring legislation to repeal parts of the state's drug sentencing code. "And frankly, it is an opportunity to shift the framework of drug policy in America from a model centered on incarceration."

One possibility, favored by the governor, would be to include Rockefeller drug law reform in the budget negotiations, which under state law must be completed by April 1.

Regardless of when it happens, advocates of overhauling the drug laws say this is an opportunity that should not be squandered.

"I've been hanging around there at the Capitol trying to make changes to these laws all my life," said the Rev. Peter Young, who directs a statewide drug rehabilitation program. "Now we have the best shot of any year I've seen."

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