NEW YORK'S BUSTED DRUG LAWS

Since 1973, New York State Has Spent Billions Locking Up Nonviolent Drug
Offenders For Longer Jail Terms Than Robbers And Rapists Get. Isn't It Time
To End These Unjust And Ineffective Laws?

PAULA ALTAGRACIA, A FORTY-TWO-YEAR-OLD single mother from the Dominican
Republic, was holding down two jobs, folding clothes at a laundromat and
cutting nails at a beauty salon, when police arrested her one night in
September I997. She was in a friend's apartment in Washington Heights doing
her nails when New York police officers entered the building after
receiving complaints about drug activity there. Officers later said they
saw her drop a wrapped package containing cocaine into a trash can on the
second-floor landing. Altagracia says that when the police arrived, she saw
two or three men run down the hallway, and one of them threw the package in
the trash. She said she leaned over the can and reached in to see what it
was. As it turned out, the package contained an eighteen-ounce cocaine mixture.

Altagracia had no prior contact with the criminal-justice system.
Psychiatric examinations found her to be a docile, religious woman who
suffered from depression and possible hallucinations. The prosecutors
didn't claim that Altagracia was selling drugs or had any connection with
drug activity other than the incident in the hallway. She repeatedly
refused a plea-bargain sentence of three years to life, insisting that she
was innocent. But a jury found her guilty of A-1 felony drug possession,
and under New York's drug laws she faced a mandatory minimum sentence of
fifteen years to life.

In an almost unheard-of action this July, the trial judge in Manhattan,
James Yates, refused to impose the mandatory minimum, on grounds that it
would be "cruel and unusual" if applied in this case. Yates concluded that
Altagracia "was unlikely to have held the drugs, if at all, for more than
an incidental and temporary possession." Still, he gave six to life to a
woman whom he considered an "accidental" offender. Altagracia should
consider herself lucky. In the past ten years alone, more than 100,000 New
Yorkers have been sent to prison for drug offenses, many for long terms
that defy any sense of justice.

In 1973, nearly ten years before the War on Drugs became a national
obsession, New York enacted some of the toughest drug laws in the country.
Congress approved mandatory minimum sentences for an array of drug offenses
in 1986, with the result that people caught selling five grams of crack or
5oo grams of powder cocaine were put away for at least five years, or ten
for those convicted of selling fifty grams of crack or five kilos of powder.

Yet those sentences were soft compared to the drug laws championed by Gov.
Nelson Rockefeller in 1973, which remain largely unchanged nearly thirty
years later.

In New York today, a first-time offender convicted of selling two ounces or
simply possessing four ounces of a narcotic gets a minimum of fifteen years
to life. Second-time offenders face mandatory minimums of four and a half
to nine years for selling or possessing with intent to sell any trace
amount of cocaine, heroin or other hard drugs. Thousands of low-level drug
of-fenders, many caught selling ten-dollar vials of crack -- about
one-seventh the weight of a packet of Equal -- are locked up longer than
felons convicted of assault and other violent crimes.

The laws enacted in 1973 haven't reduced the availability of drugs, but
they have caused the state to spend billions of dollars processing and
incarcerating drug offenders. After witnessing decades of this kind of
failure, several stalwart Republican 1eaders from the 1970s have come out
vigorously against the very laws they helped push through. "The lesson we
learned was that harsh penalties did not deter drug sales or addiction, but
they filled the prisons with nonviolent offenders who need treatment," says
John Dunne, a former assistant attorney general in the Bush administration
and a co-sponsor of the Rockefel1er drug laws when he was a member of the
state Senate in the 1970s.

The coalition of community leaders for drug-law reform led by Dunne
includes H. Douglas Barclay, the Senate sponsor of the Rockefeller
legislation; Warren Anderson, the Republican Senate majority leader when
those laws were enacted; and other Republicans, like Richard Bartlett, who
previously chaired the commission to revise the state's penal laws. These
men are hardly bleeding hearts, but they and many criminal-justice experts
are convinced that the mandatory sentences don't work.

New York's harsh drug laws were passed at a time when -public fears about
drugs were rising, particularly in the suburbs. The existing laws were
thought to be too lax, a state-run program to rehabilitate addicts had
largely failed, were still in their infancy, Rockefeller, who had been
widely attacked by conservatives for his social liberalism and his spending
on urban programs, was eager to move to the right to bolster his
credentials with the national Republican Party. The polls were telling him
that middle-class suburban voters wanted something done about the drug
problem. Getting tough on sentences seemed a perfect quick fix for both of
his political problems. The fact that a scheme of one-size-fits-all
punishment was utterly unproven as a method to deter drug-related crime did
not stop Rockefeller. In fact, embracing the dramatic, big-ticket solution
was a hallmark of his governing style. He lobbied hard for his proposal,
despite reservations among even members of his own party, calling the
measures "so strong, so effective, so fully enforced that the hard-drug
pusher will no 1onger risk his own life and freedom by jeopardizing the
lives of others." He batted aside the opposition as being weak-minded, and
in the end there were no alternative plans on the table to defeat the
Rockefeller proposal.

Looking back, Douglas Barclay says, "The public wanted to solve the drug
problem, and you didn't want to be criticized for not trying or not being
tough enough. It seemed Like a logical thing to do at the time, because
some people thought that the judges were coddling drug dealers. But I don't
think anybody thought we'd send so many people to prison."

DONNA CHARLES IS JUST ONE statistic among the 22,149 drug offenders now
1ocked up in New York prisons. She has been inside since 1978, serving a
seventeen-year sentence for her first and only run-in with the law. In
1986, she was a single mother working two jobs, desperate for money to rent
an apartment so that she could be reunited with her two small kids, who had
been farmed out to relatives. An acquaintance's boyfriend offered her
$1,500 to carry a package of cocaine from New York to Memphis, and she was
arrested on her way to catch a plane at La Guardia Airport.

The man who made the deal fled the jurisdiction. The prosecutors offered
Charles a plea bargain of three years to 1ife, a pretty good indication
they knew she was a mule and not a drug kingpin. She chose instead to go to
trial, was found guilty and was sentenced to seventeen years, two years
more than the minimum. Her kids spent their childhoods without their
mother. The only unusual twist in this story is that the judge who
sentenced Donna Charles, Ann Dufficy, has become an ardent advocate for her
petition for clemency.

"Donna is a remarkable person," says Dufficy, who has retired from the
bench. "She's been rehabilitated, she's not a danger to society. But the
law gives judges no discretion." In her letter to Gov. George Pataki
requesting mercy on Charles' behalf, Dufficy wrote that "no person could be
more deserving of executive clemency than Donna Charles." Pataki denied
Charles' petition in 1998, and she had to wait until this year to reapply.

Charles is not alone in having her life and her children's lives nearly
destroyed by a draconian sentence. Nearly every Christmas time, New York
governors have made a practice of showing mercy to a few hapless souls,
usually first-time offenders, who got slammed with a mandatory minimum that
was absurdly out of proportion to their crime. But that and still leaves
thousands of others most treatment techniques imprisoned by a system rife
with injustice.

The Rockefeller laws do not allow a judge to consider a person's role in
the crime, his past history or potentia1 for rehabilitation. Like federal
drug laws, they turn on the weight of the drugs found at the time of
arrest. No distinction is made between the pure drug and any additives in
the mixture. The crazy result is that a street dealer who is selling
cocaine that has been cut ten times is punished as heavily as the big
dealers who import the pure stuff.

Of course, most major dealers are smart enough to use other people as
couriers. Even when the big fish are caught, it's likely they will be able
to get a plea bargain from prosecutors by implicating colleagues, while
lower-level, 1ess-culpable defendants rarely have useful information to
share, or they make the mistake of going to trial, like Donna Charles and
Paula Altagracia. Instead of having any real impact on drug trafficking,
the laws have resulted mostly in the prosecution and imprisonment of people
who are the easiest to catch -- mules and street-level user-sellers. Most
studies, according to John DiIulio Jr., a criminal-justice expert and
professor at the University of Pennsylvania, show that when a 1ow-level
offender is incarcerated, another person simply takes his place.

This pattern of enforcement against street-level operators has created
staggering racial disparities in imprisonment, The reason is no mystery.
Drug transactions in minority neighborhoods are apt to happen on the
street, making small-time dea1ers easy targets for arrest. Middle-class
people are less likely to work as mules, and drugs in affluent, whiter
parts of town are more often sold in private establishments and homes,
which are also a lot tougher for undercover cops to penetrate. Data from
the Correctional Association of New York, a criminal-justice advocacy
group, show that near1y ninety-five percent of the drug offenders in New
York prisons are black or Latino, though blacks and Latinos make up less
than a third combined of the state's population, and federal surveys
indicate that more than seventy percent of illegal-drug users are white.
"This result may not have been intended," says Robert Gangi, executive
director of the association. "But the laws have clearly resulted in
institutionalized racism."

FROM THE BEGINNING, THE ROCKEFELLER proposal was criticized by the
Democrats as wasteful and inhumane, Civil-liberties groups, court
administrators and even district attorneys opposed to mandatory minimums
because they took discretion away from judges. But none of the critics
fully anticipated how these laws would alter every aspect of New York's
criminal-justice system.

Rising numbers of drug arrests have overwhelmed the courts, which have not
expanded sufficiently to meet the burden, In 1980, there were 27,407 drug
arrests in New York. By 1999, the number had risen to 145,694. The state's
total prison population has soared from 12,500 in 1973 to more than 71,400
this year. The drug-inmate population in 1980 was less than 2,000; now it
is more than 22,000. In the past twenty years, the state has spent nearly
$4 billion building new prison cells, in large part to hold drug offenders.

The annual cost of incarcerating an inmate is about $32,000. The state now
spends roughly $650 million a year to house drug inmates alone. These
extraordinary costs might be justified if there were evidence that they
enhance public safety. But in fact the great majority of drug offenders --
nearly eighty percent of those sent to prison in recent years -- have never
been convicted of a violent felony. About sixty percent of them were
convicted of the lowest levels of felonies -- Class C, D or E -- which
involve minute amounts of drugs. About a third have no prior felony records.

Drug offenders now make up nearly half of all felons sent to prison,
compared to just eleven percent in 1980. Violent felons, on the other hand,
have declined from fifty-seven percent of total new commitments to prison
in 1980 to a mere twenty-eight percent in 1998, The drug 1aws have
perversely turned state prisons that used to house primarily violent
criminals into expensive warehouses for nonviolent drug addicts.

Barclay, like his fellow reformers, believes fiscal prudence, if not
compassion for inmate addicts, might motivate politicians to replace
mandatory minimums with more treatment. The state corrections department
estimates that at least two-thirds of inmates have substance-abuse
problems. Other groups, like the National Center on Addiction and Substance
Abuse at Columbia University, give estimates closer to eighty percent, A
1997 RAND study found that drug treatment for this population is ten to
fifteen times more effective in reducing serious crime than mandatory
minimum sentences.

The savings of drug reform would be substantial, since a year of
residential drug treatment costs about $18,000 and outpatient treatment
only $5,000, or only a sixth of the cost of incarceration. Unfortunately,
Rockefeller's purely punitive approach halted experimentation with
treatment-based alternatives for two decades. Even now, the New York system
offers very few options that give some low-level defendants the opportunity
to go through treatment in lieu of prison.

ON EVERY LEVEL -- COST, CRIME-fighting effectiveness and impact on minority
communities -- the Rockefeller drug laws have been disastrous. Yet few
politicians in New York have the guts to challenge the status quo, for fear
they will be considered soft t on crime. Senate candidate Rick Lazio is so
apprehensive that his campaign staff refuses to make any comment about the
subject. The other Senate candidate, Hillary Clinton, is less fearful but
is willing only to say through her spokeswoman that she supports "moving in
the direction of giving judges more discretion."

Early in his tenure, Gov. Pataki questioned the usefulness of the
extraordinarily long sentences, but he has offered no meaningful change to
the laws, The state Legislature, a sleepy enclave that is completely
captive to the secretive machinations of two men -- the Democratic Assembly
Speaker, Sheldon Silver, and Republican Senate Majority Leader Joseph Bruno
- -- has done nothing.

Last year, Bruno surprised everyone when he said he believed there was a
need to revise the drug laws. But he offered no new legislation. Democrats,
who have historically been opposed to the Rockefeller laws, should have
cheered and pressed Bruno to make a deal. Instead, Silver declined to touch
the subject, afraid that merely discussing reform would leave them
vulnerable to thirty-second attack ads by the Republicans in this year's
elections.

Pete Grannis, an outspoken Assembly Democrat, is appalled by the inaction.
The only thing standing in the way of reform is "political cowardice," he
says, "It's nothing more complicated than that. The issue makes people in a
few marginal seats uncomfortable because they might have to defend any
change to the laws." Jeffrion Aubry, chairman of the Assembly corrections
committee and sponsor of a bill to end mandatory minimums, thinks voter
awareness of the harm of the drug laws will eventually force nervous
legislators to act. But even with public support, he says, "Somebody's got
to suck it up and do something,"

Albany politicians are also afraid of opposition from district attorneys
who like having the hammer of mandatory minimums to coerce guilty pleas and
cooperation from defendants. Yet even Gen. Barry McCaffrey, the director of
the White House's drug-control-policy office, has loudly criticized the
Rockefeller drug laws. "We cannot arrest our way out of the problem of
chronic drug abuse and drug-driven crime," he said in a speech in Albany
last year. He's been trying to persuade politicians around the country that
treatment is a better solution to addiction-driven crime because long
sentences may actually breed more criminality. "Our prisons have become
akin to graduate schools of crime," he said, pointing out that sending drug
abusers away gives them idle years to learn even more dangerous behavior.

Drug treatment, by contrast, has been shown in numerous projects around the
country to cut recidivism rates significantly and lower the incidence of
continued substance abuse. Successful treatment could also help reduce
welfare and health-care costs among drug abusers, and could even reduce the
number of children placed in foster care because of their parents'
imprisonment.

An independent commission created by Judith Kaye, the chief judge of New
York, to review the impact of the drug laws on the court system this summer
recommended expanded use of treatment a1ternatives to incarceration for
low-level drug offenders. That proposal, if carried out statewide, might
begin to cut relapses among addict offenders who regularly cycle through
the courts and prisons. But the commission failed utterly to come to grips
with the need to repeal the mandatory minimums that are driving the whole
system.

The deepened racial divide and the extraordinary human suffering created by
laws that ignore principles of proportionality can't fully be measured. But
in the past couple of years, even conservatives have started to acknowledge
this social and moral calamity. But actually repealing the laws will
require common sense and backbone on the part of New York's timid political
leaders. "When something doesn't work, you've got to start thinking about
another way," says Barclay. It's ironic that as today's politicians drag
their feet, the earliest supporters of these laws are leading the charge to
stop the unconscionable waste.