TREATMENT OR JAIL? LAWMAKERS CAN'T AGREE ON CHANGE TO DRUG LAWS

Troy, N.Y.-David Lee Butler left an untouched pitcher of draught beer
sitting on the bar of a local tavern while he drove to a neighbor's house,
picked up less than half an ounce of crack and unwittingly sold it to an
undercover police officer for $50.

It was the middle of the afternoon on June 8, 2000. Buying drugs was second
nature to Butler, who had fed his own daily rock cocaine habit for more
than 17 years. But the 48-year-old Troy native said he had never sold drugs
before and insisted the transaction was only a favor on behalf of a
neighbor who twice asked him to deliver drugs.

Prosecutors disagreed. Charged under the state's Rockefeller-era drug laws,
Butler now faces as much as 25 years in prison if he is convicted and
cannot be sent instead into a drug treatment program.

Butler's case represents a principal reason why lawmakers in Albany cannot
come to an agreement on how to change New York's drug laws, despite years
of consensus that the punishments, established in 1973, are too harsh.

In the Legislature, there is wide agreement to relax the rules for the more
serious drug sellers as well as for casual users. But lawmakers remain
passionately divided over whether accused low-level narcotics dealers like
Butler warrant drug treatment or prison time-and whether prosecutors or
judges should make that call.

Butler falls into the B felony category, which last year accounted for 38
percent of all drug arrests around the state and 81 percent of all felony
drug arrests. Peddling, passing along or just being caught with any amount
of narcotics puts a drug offender into this category if prosecutors believe
there was an intent to sell the drugs.

Street values of B felony narcotics sales can run anywhere from $10 to
$1,300. These defendants must serve prison time under current law unless a
prosecutor chooses to send them to treatment, something that happens
infrequently. Just last year, 2,347 such felons were sent to prisons in New
York.

"The Bs are the main battleground," Chemung County public defender Richard
Rich said of the debate over the drug laws. "People don't like the thought
of a drug dealer getting what they consider to be a break." At issue is the
murky question of who the majority of small scale narcotics sellers are:
addicts plying the trade to finance their own habits or profit seekers for
whom rehabilitation efforts would be irrelevant.

Underlying the dispute over small time dealers is a long-standing turf
battle between judges and prosecutors. The passage of the Rockefeller laws
automatically linked sentences to the weight of the drug involved, handing
punishment decisions to prosecutors bringing the charges.

Since that time, critics have demanded to return discretion over sentencing
back to judges, arguing that under the current system, all the power is
concentrated with the defendant's main adversary.

Judges agree, saying prosecutors are often too concerned with maintaining
their tough-on-crime postures. "We very often have to make the tough
decisions and hard decisions, while other people are running for
re-election," said Abraham Gerges, president of New York State's Supreme
Court Judges' Association.

Prosecutors, who also tend to be generally more skeptical that drug
peddlers will benefit from treatment, say they have intimate knowledge of a
defendant's criminal background, which judges might not ever know.

"This is about the reality that we know what police know, and therefore we
have information about what that person has been up to," said Schenectady
District Attorney Robert Carney, president of the association of the
state's prosecutors.

It is these issues that Gov. George Pataki and the Democrat-led Assembly
have been unable to resolve. Pataki's proposal gives judges authority to
replace a mandatory prison sentence with probation and drug treatment, but
only for those drug users who are not accused of dealing. These lowest
level offenses-C, D and E felonies-make up about 6 percent of all drug
arrests in New York State.

The Assembly's legislation, filed last week, grants judges the authority to
independently divert first-time and repeat sellers as well as users. Both
the Assembly and the Republican-controlled Senate, which has backed the
governor's plan, also allocate more money for drug treatment.

Additionally, Pataki's and the Assembly's plans diverge over the length of
prison terms. Pataki wants B felons with previous convictions but no
history of violence to receive no less than 4 years in prison. The Assembly
would reduce the minimum sentence to as little as 2 1/2 to 5 years. The
maximum sentence under either plan could be as much as 25 years, the same
as under the current Rockefeller laws.

The New York State District Attorney's Association opposes reducing these
sentences, as well as any provision that gives trial judges more discretion.

They are willing to let appellate judges review some sentences, but
advocates of overhauling the laws say that does not go far enough.

"We're not trying to take away from them what have been their traditional
weapons," said John Dunne, a former Republican state senator from Garden
City who initially helped write the Rockefeller laws but now leads the
overhaul effort. "We're not suggesting some new revolutionary concept here,
just restore it to the status quo before these laws were passed." David
Butler's rap sheet extends to the same year the Rockefeller initiatives
were written into New York State law. Butler was first convicted of
possession in 1973 after he was caught with Demerol. He said he was given
the drug by someone he served with in the Navy, who also turned him on to LSD.

Butler received 6 months' probation at the time.

In the following years, Butler was sporadically employed, working
alternately for his brother's cleaning service and performing contracting
work around the Troy area, which is on the east bank of the Hudson River
across from Albany.

Butler said he began using heroin, along the way earning five convictions
for possessing drugs as well as shooting up a friend. He went through a
court-ordered 30-day drug treatment program, but did not kick his habit. A
conviction for stealing musical equipment got him a 1 1/2-to-3-year jail
sentence. Butler said he received some drug treatment while incarcerated.

In 1986, Butler said, he settled into a crack cocaine habit. He began using
it, he said, to silence voices in his head feeding him nonsensical song
lyrics and suggestions he jump off the bridge between Rensselaer and
downtown Albany that he walked across for his daily drug runs.

"I could handle the voices when I was on crack," Butler said. "I was so
high I wouldn't have heard them mostly, and when I did, I thought it was
OK." The weekend before he was arrested, Butler said he had made plans to
go to the Albany veterans' hospital, where he had voluntarily spent a week
in 1998 getting himself cleaned up. "I went to my mother's house to eat
dinner and I let everybody know I was going to the hospital that Monday,
and that's the night I got arrested." Butler's attorney, Sandra McCarthy,
said he shows signs of paranoid schizophrenia but has not been diagnosed.
With proper treatment for both his mental illness and drug addiction, he
could turn a corner, she said. "He's an addict and he needs rehab. He keeps
going back because he needs this stuff. For him it's like putting somebody
in jail because they're a diabetic." But the assistant district attorney
prosecuting the case, Mark Loughlan, wrote in Butler's indictment that he
"has been known for years by [the] Rensselaer Police Department as a drug
dealer," adding, "Whatever ties the defendant may have maintained [to the
community] did not prove sufficient to convince him not to sell cocaine."
Rensselaer County District Attorney Kenneth Bruno would not comment on the
specifics of Butler's case because it is pending. But speaking generally,
he said: "It never ceases to amaze me, the things that people come up with
in order to avoid responsibility for their crimes. The defendant and their
lawyer trick the judge into saying that they're someone that they're not."
Prosecutors say that when they believe street-level dealers don't deserve
jail time, they have been willing to send them to treatment programs
instead, often with considerable success. Since the Kings County District
Attorney's office started the state's first Drug Treatment Alternative to
Prison program in 1990, prosecutors have diverted 31 percent of the 4,031
drug felony offenders it considered eligible for the program. The program
reports that those graduates are half as likely as those sent to prison to
end up back behind bars.

"What we do is we carefully screen the facts of the crime, the criminal
record and the level of dependence. If those three things don't add up,
then that person shouldn't be diverted," said Kings County Assistant
District Attorney Anne Swern.

Prosecutors say they also sometimes charge street-level dealers with lesser
crimes if they believe they are primarily addicts. But they say communities
must be protected from repeat offenders. "Most people learn from their
mistakes. They decide not to do it again," Bruno said. "But the people who
are just in it and doing it and doing it and doing it need to be separated
from the law-abiding public." Assembly members counter that although drug
treatment programs outside prisons have proven so much more successful than
those inside, they have been consistently underutilized by local district
attorneys. Only 15 out of 62 counties-including Nassau, Suffolk and
Queens-have such programs, and Pataki's plan does not provide any financial
incentives for the rest to establish them.

"The only offenders that the prosecutors want to take are those who are
most likely to succeed," said Joseph Lentol, a Brooklyn Democrat who is the
principal sponsor of the Assembly's package to overhaul the Rockefeller laws.

"That's great. It's fine to have people do well. But there are those who
are not getting treatment who are still a large part of the problem."
Defense attorneys agree. "Under the governor's plan the prosecutor is the
gatekeeper for treatment," said Rich, the public defender in Chemung
County, which is on the Pennsylvania border south of the Finger Lakes. "By
the prosecutor controlling who gets treatment, there's a fear that he'll
just pick that middle class white kid who otherwise would have gotten a
reduced charge anyway. The popular choice."

Doing Time - A look at the breakdown of drug felony arrests in 2000 and the
penalty if convicted in New York State.

A1 Sale of anywhere from 2 ounces to several hundred kilos of cocaine or
heroin Minimum 15-25 years Maximum life A2 Sale of 1/2 oz of cocaine or
heroin First offender: Minimum 3-8 1/3 years Maximum life Second offender:
Minimum 6 1/2-12 years Maximum Life B Intent to sell any amount of cocaine
or heroin First offender: Minimum 1 year to up to 1/3 maximum Maximum 3-25
years Second offender: minimum 4 1/2-12 1/2 years maximum 9-25 years C
Possession 1/8 ounce cocaine or heroin First offender: Minimum 1 year up to
1/3 maximum Maximum 3-15 years Second offender: minimum 3-7 1/2 years
maximum 6-15 years D Possession 500 mg. cocaine or heroin.

First offender: Minimum 1 year - up to 1/3 maximum Maximum 3-7 years Second
offender: minimum 1 1/2- 2 years maximum 3-4 years E Criminal injection of
a narcotic drug, used primarily to plead down from a D felony

SOURCE: Department of Criminal Justice Services computerized criminal
History System.