ASSEMBLY GIVES DRUG LAWS THE RIGHT CURE

AS A REPUBLICAN state senator in 1973 who supported enactment of
the Rockefeller Drug Laws, I welcome the State Assembly's recently
released reform proposal. It balances public safety and humane
treatment of drug offenders in a manner that reflects current
realities of drug addiction and drug trafficking.

The experience of the past 28 years has conclusively demonstrated the
failure of these laws to achieve their objectives. They have not
reduced drug trafficking; they have not eliminated drug kingpins; and
they have not deterred drug use.

But they have handcuffed our judges, required tens of thousands of
low-level drug users and sellers to serve mandatory prison sentences,
wasted billions of taxpayer dollars, and have denied non-dangerous
drug abusers access to cost-effective drug treatment
alternatives.

Although earlier this year Gov. George Pataki took the first step to
propose reform, his bill does not encompass the dramatic and
comprehensive changes he had promised. Rather, it proposes only the
most modest of reforms. A comparison of proposed legislation is
instructive and leads to the unassailable conclusion that only the
Assembly proposal contains the elements of true revision.

The two key elements of any reform must be restoration of discretion
to judges to decide the appropriate sanction for drug offenders and
the availability of effective drug treatment programs for addicted
offenders who need help.

Except in the most serious drug cases, judges must have final
authority to divert appropriate drug offenders to treatment. A return
of this discretion is pivotal. Judges are in the best position to make
objective, neutral decisions that ought to be individualized based on
the offender's background, criminal history, and the likelihood that
the offender will benefit from a drug treatment or other alternative
program.

Unfortunately, the governor's proposal authorizes restoration of
judicial discretion in only the very lowest drug possession
categories. Contrary to basic principles of jurisprudence, judges
would still not be able to divert drug-addicted, non-violent offenders
to treatment in any case involving a second felony sale, no matter how
small the amount of drugs-except with the consent of the prosecutor.

This usurpation of judicial power must be corrected. The Assembly bill
would restore far greater discretion to judges in the vast majority of
cases to decide whether to impose a prison or alternative sentence on
drug offenders, including repeat offenders and low-level sellers, many
of whom sell drugs to support their own addiction.

Access to drug treatment and rehabilitation is the second essential
element of reform. If the courts are to be empowered to divert
offenders to alternatives to incarceration, there must be adequate
funding to provide expanded treatment programs to accommodate
appropriate offenders. The Assembly proposal would allocate $100
million to expand proven effective treatment programs in both prison
and community based facilities. The governor's current budget proposal
makes no similar appropriation.

Other more reasonable and humane elements of the Assembly proposal
would reduce the lowest minimum sentences in a meaningful number of
cases rather than, as Pataki proposes, affecting fewer than 1 percent
of drug offenders entering prison under current law.

The Assembly bill would require at least a five year minimum prison
term (although, the minimum sentence could be as long as 15 years, as
is the case now). And, the measure also would reduce the lowest
minimum sentences for lesser offenses, thus giving judges more
discretion to set minimum terms based on the facts and circumstances
of each case.

Since it would be unfair to deny currently incarcerated offenders the
right to at least apply for a sentence reduction, retroactivity is
another important element of reform.

The Assembly bill would, generally, make sentences retroactive for all
classifications of offenders, allowing those currently incarcerated to
apply to the sentencing judge for a prison-term reduction. However,
the alternative proposal would only make re-sentencing an option for
less than 3 percent of the current prison population and only in very
limited circumstances.

In the last decade, some prosecutors have initiated experimental
programs to divert carefully screened addicted offenders to treatment,
rather than to prison. Despite their general success, the one vocal
group in opposition to meaningful reform is the New York State
District Attorneys Association. Their opposition stems from an
unwillingness to give up their veto power over the deferral process.

Yet, under any reform proposal, prosecutors will continue to have the
same ability to charge and indict defendants as they do now and to
plea bargain as now. The police, too, will have the same ability to
make arrests as they do now. What is at stake for the prosecutors is
losing the veto power over sentencing discretion that my legislative
colleagues and I mistakenly gave to them in 1973. While the public
safety depends in great measure on the work of investigators and
prosecutors, they should not have unilateral authority to control the
ultimate sentencing process.

Our drug sentencing laws have indefensibly abrogated the historic and
proper role of judges, as neutral arbiters, to balance appropriate
factors to ensure justice. Judicial discretion must be restored in the
interest of justice, fairness, and public safety. The Assembly bill
leads in that direction.