ROCKEFELLER REVERSALS

Sponsors Of Draconian Drug Laws Now Work Against Them

Albany - On April 27, 1973, a confident lawmaker named Douglas
Barclay stepped onto the floor of the state Senate and urged his
colleagues to support a set of bills he hoped would so harshly punish
drug pushers that the flow of narcotics onto New York's streets would
slow to a trickle.

Barclay dismissed concerns that the proposal failed to distinguish
between big-time dealers and street-level peddlers, saying: "It is
time to bite the bullet. We must take a stand on drug abuse. Society
demands it."

Now, three decades later, Barclay and a handful of his fellow
Republican sponsors of the controversial Rockefeller drug
laws-including former Garden City Sen. John Dunne and Warren Anderson,
the Senate majority leader at the time-have taken the unusual step of
renouncing their own creation.

"It got to the point where it wasn't working," Barclay, now 68, said
in a recent interview as he denounced the staggering increase in the
prison population,and little headway in the war against drugs,that
followed the laws' enactment. "If you haven't solved the problem,
you've got to start thinking about how you're going to do it."

The brainchild of a governor struggling to stanch a wave of crime and
drug abuse, the once-popular laws have since come to be viewed by many
as cruel, ineffective and anachronistic. Today, New York's prisons
house just under 70,000 inmates. More than 20,000 are drug offenders,
many sentenced under the Rockefeller laws.

But it took this circle of unlikely crusaders to help make the topic
the principal criminal justice issue in the Legislature this year.

The retired lawmakers have been credited with helping to bring the
movement from the political fringes to the mainstream, attracting
groups such as the New York State Catholic Conference. And their
sustained efforts almost certainly encouraged Gov. George Pataki to
take the politically risky step of proposing to soften these laws.

To be sure, there were others lobbying long before these lawmakers
took up the cause, and Pataki had faulted the laws as early as his
first year in office. But the gradual conversion of these
tough-on-crime senators is perhaps the most unexpected development in
the history of the Rockefeller laws, perhaps topped only by the
corresponding transformation of an original opponent of the laws, Sen.
Dale Volker (R-Depew), who has come to embrace them.

"They [the former lawmakers] have contributed in a major way," said
Robert Gangi, director of the Correctional Association of New York, a
prison reform group that has been calling for the laws' repeal since
1985. "They've made it easier politically for other political figures
to speak out."

The drug laws were born out of a marriage of Gov. Nelson Rockefeller's
legitimate frustration and political ambitions. By January 1973,
Rockefeller believed he was close to exhausting every weapon he had in
the war against drugs. He had invested more than $1 billion in drug
education and treatment over the 14 years he had been governor. He
created an extravagantly expensive agency in the 1960s that forcibly
hospitalized the state's addicts but attained few results.

Yet heroin use was exploding in the state's urban neighborhoods.
Violent crime, on the rise since the mid-'60s, showed no signs of abating.

"Despite great efforts and large expenditures of money, we seemed to
be making little headway in relieving the problems," said Michael
Whiteman, who at the time served as Rockefeller's chief counsel.

The motivation was not just altruistic: Many thought Rockefeller was
eyeing a run for the White House in a few years. An aggressive
campaign against crime would help the liberal Republican gain more
support among those who would eventually choose the party's
presidential candidate in 1976.

When he appeared before lawmakers in 1973 to deliver his State of the
State speech, Rockefeller did not bother with nuances.

"This reign of fear cannot be tolerated," he told the Legislature.
"Let's be frank. Let's tell it like it is. We have achieved very
little permanent rehabilitation-and have found no cure."

What Rockefeller proposed that day was so harsh that many of his
closest advisers, including Whiteman, counseled against it.
Rockefeller called for mandatory life sentences for the sale of any
amount of hard drugs. To "close all avenues for escaping," the measure
would have forbid parole or plea-bargaining.

One of the most outspoken opponents at the time was Volker, then a
freshman assemblyman and former police officer. The proposal "was so
draconian that we said, 'Look, this can't operate,'" Volker said,
despite his law-and-order credentials. "He [Rockefeller] was very
embittered against me because of my opposition to it. As a result of
it, he became an enemy of mine."

Volker was not the only legislator with reservations. Over drinks at
the now-defunct Ambassador restaurant or in the bar of the old Ten
Eyck Hotel, the drug proposal was one of the hottest topics that year.

"We had several discussions on it," said Warren Anderson, a Binghamton
lawyer who was beginning a 16-year tenure as the Senate's Republican
majority leader. "There were people in our party that were questioning
their severity."

The measure drew scathing criticism outside the Legislature. Judges,
law enforcement officials, civil libertarians, bar associations and
prosecutors argued the laws would overwhelm the legal system.

Three months after his State of the State speech, Rockefeller bowed to
the criticism and submitted a much-revised proposal. The refined
version created mandatory minimum prison terms, but not life
sentences, for dealers of hard drugs. It also permitted limited plea
bargaining.

Many lawmakers still harbored reservations about the bills, but
believed they had little choice but to support the final compromise.

"The idea was to get the dealers and get them off the street, and
hopefully that was going to make a big dent in the drug trade," said
Barclay, who at the time chaired the Senate Codes Committee. "You can
say the people who were against it were right, but what was the
alternative?"

Another influential lawmaker wasn't so sure. John Dunne, chairman of
the Senate's prison committee, had been a mediator at the Attica
prison riots in 1971 and thought long mandatory incarcerations should
not be established lightly.

"I agreed with the critics that they were very extreme," Dunne said.
At Barclay's prodding, however, Dunne changed his mind and, after some
reflection, agreed to co-sponsor the bills. "He's the one that
convinced me that this was something that should be done," Dunne said.

In May, the bills passed the Assembly, 80-65, and were overwhelmingly
approved in the Senate, 46-7. Rockefeller quickly signed them into
law, and they took effect Sept. 1, 1973.

It took six years to discover they weren't working.

Drug use continued to rise. In 1979, Gov. Hugh Carey made minor
revisions to the laws after concluding Rockefeller's approach "has not
been effective in reducing drug traffic in New York, has resulted in
injustices in numerous cases and has made courts, prosecutors and
juries reluctant to enforce its provisions."

Carey's changes doubled the weight minimums used to determine the
severity of the prison terms, and reduced some sentences outright.
Those changes did not quell the criticism that it was unjust to base
mandatory sentences solely on the amount of drugs involved, rather
than the role the person played in the crime.

But lawmakers made little attempt to further revise the laws in the
years that followed. Dunne said there is only one reason: "The concern
of elected officials being soft on crime. There's just no other
plausible explanation."

In 1989, Dunne left Albany for Washington and became then-President
George Bush's assistant attorney general for civil rights. There, he
was exposed to a broader view of the ramifications of the drug war.

One day in 1991, Dunne met with Michael J. Quinlan, then the director
of the federal Bureau of Prisons. "He brought out these charts showing
a terrific rise in the [federal] prison population," Dunne said. "I
found out it was attributable to drug violations."

Intrigued, Dunne began investigating the same issue in New York when
he returned home about two years later. What he found astounded him.

When Dunne had left his post as chairman of the Senate prison
committee in 1973, there were just over 12,000 people in the state
prison system. When he returned to the state in the mid-'90s, the
number was about five times greater.

"As I looked further into it, I found that a tremendous number were
drug violators," Dunne said. "And when I found out further that a
significant number were addicts who were there not by reason of their
own violent crimes, but by reason of drug crimes...that roused my interest."

Back in Albany, Dunne joined a local law firm, but the Rockefeller
laws stayed in his mind. In 1997, Dunne founded the Campaign for
Effective Criminal Justice, a loosely organized lobbying group
composed of respected former legislators, judges, criminal justice
experts and community leaders who Dunne thought would carry more
authority than the normal types of advocates.

"They're not a bunch of way-outs," Dunne said. "They've got
conservative credentials, and our principal goal is to really make
this a movement that is legitimate and reflects broad community support."

When he began placing calls to his former colleagues in the Senate,
Dunne discovered he wasn't the only one having second thoughts.
Newspaper and television profiles of first-time offenders locked away
under the laws for decades had swayed both Barclay and Anderson.

"It just seemed to me as I read about it, that people do these crazy
things...to get money to buy drugs," Anderson, now 85, said in an
interview at his office in Binghamton. "I am inclined to think it's
almost as serious a problem now as it was 30 years ago."

Both signed onto Dunne's group, and Dunne began publishing articles
calling for reform, and touring through the Capitol to lobby.

Even with Pataki's efforts to revise the laws, the success of their
crusade is far from assured. Some of their former colleagues, such as
Volker, now chairman of the Senate Codes Committee, and Sen. Frank
Padavan (R-Jamaica),another co-sponsor of the 1973 legislation,are
unwilling to dramatically overhaul the laws.

Volker said he fears lawmakers have been lulled by a nearly
decade-long drop in crime, and argues that the state risks a renewed
crime wave if the drug laws are softened.

"I think education and treatment and tougher statutes are having an
impact," he said. "Drug interdiction has had more of an impact than
people realize."

Padavan said any major revision would be unwise.

"These people are selling poison, ruining lives, killing people for
money," he said. "I can see no difference between selling some
14-year-old a vial of crack and ruining their lives or killing them."

Pataki's proposal, which he submitted to the Legislature on Friday,
does not abandon the underlying framework of the Rockefeller laws or
go as far as Dunne would like. The governor's plan would allow judges
to lower the sentences for the most serious crimes, but still maintain
mandatory minimums.

For example, those convicted of possessing at least 4 ounces of a hard
drug or selling at least 2 ounces now receive a minimum of 15 years to
life. Under Pataki's proposal, they would get 10 years to life, with
the possibility of having the sentence reduced to 8 under certain
circumstances. More significantly, Pataki also would allow thousands
of people convicted of lesser drug offenses to get treatment instead
of prison time.

Even now, as they have expended more energy trying to overturn the
laws than they did in establishing them, none of the original sponsors
says he regrets supporting them in 1973.

"Legislators have got to have a willingness to take a chance, make
some tough choices, and to experiment with new ideas," Dunne said. "I
regret that they're on the books today, but I felt at the time it was
something that we had to do."

QUOTES:

1) THEN - 'It is time to bite the bullet. We must take a stand on drug
abuse. Society demands it.' - State Sen. Douglas Barclay in 1973

NOW - 'It got to the point where it wasn't working.'

2) THEN - 'This billwill go down as ...the most important piece of
legislation that we enact this year.'-State Sen. Warren Anderson, in 1973.

NOW - 'The problem is almost as serious now as it ever was...We're a long
ways from solving it.'