WHO'S DEFENDING ROCKEFELLER DRUG LAWS? THE PROSECUTORS

As the push to ease New York State's mandatory drug-sentencing laws
has drawn the once-improbable support of leading Republican lawmakers
lately, one influential interest group has refused to join the chorus:
prosecutors across the state, who regard the so-called Rockefeller
drug laws as their most powerful weapon against drug dealers.

Last week, the prosecutors, a politically potent cadre, spoke up and
intensified its lobbying against softening the mandatory sentences.
The New York State District Attorneys Association, representing all 62
county prosecutors, wrote a letter to Gov. George E. Pataki, who has
pledged to ease the laws, as well as to Assembly Speaker Sheldon
Silver and the Senate majority leader, Joseph L. Bruno.

The District Attorneys Association has put in calls to lawmakers and
has selected a panel of prosecutors from Rochester to Queens to meet
with the governor. It has scheduled a briefing with members of the
Republican-controlled Senate, perhaps the prosecutors' strongest
allies here. And it has been invited to meet with Mr. Silver, a
Democrat, who in the coming weeks is expected to release his own
proposal to soften drug laws.

Under current laws, judges have little discretion over whether a drug
offender will be imprisoned, and if so, for how long. Instead, they
must operate within a range of minimum and maximum sentences that take
into account only the amount of the drug seized and the defendant's
felony record -- not whether the crime involved violence.

Two weeks ago, Governor Pataki announced his intention to change this.
His plan would allow for shorter mandatory terms for drug offenders
serving some of the longest sentences, treatment instead of
incarceration in some cases and some sentencing discretion for judges.

The judicial restrictions now effectively give prosecutors far greater
control of cases, allowing them to use the threat of long sentences to
squeeze plea bargains from some prisoners and to force others into
drug treatment.

"My concern is that we not go too far in giving away our discretion,"
the Bronx district attorney, Robert T. Johnson, said in an interview.
"This is the first year where I've sensed something is going to happen."

Political activism is unusual for the state's prosecutors, who are
only occasionally outspoken on legislation. None of the state's other
law enforcement groups with a stake in the issue -- police chiefs,
sheriffs, the state correction officers union -- have been as outspoken.

The most radical part of the governor's proposal -- reducing the
mandatory terms for those serving the longest -- is not entirely
objectionable to prosecutors, since it addresses a symbolically
important but relatively small clutch of drug offenders. A bill has
yet to be introduced, but once it is, both sides say privately, the
real fight will be over the fate of the lower-level drug offenders and
whether judges, instead of prosecutors, will decide who goes to
treatment and who goes to jail, and how long the sentences will be.

"We can't live with a system that takes out of prosecutors' hands the
right to send predatory drug dealers to prison," said the Schenectady
district attorney, Robert M. Carney, who is president of the statewide
association.

Over the years, mandatory sentencing laws have been credited for
locking up some of the biggest drug dealers for long periods of time,
and blamed for imprisoning, also for long periods of time, drug
addicts who turned to crime only to fuel their habits.

It is widely acknowledged that the drug laws, enacted in 1973, crammed
court dockets and state prisons. (New York's prison population has
begun to drop only recently.)

Among the 70,000 inmates in the state, 21,000 are there on drug
charges, and of those, about 4,200 are first-time felons. And although
national studies have shown that drug users are mostly white, 95
percent of the drug offenders in state prisons are black or Hispanic.

Advocates for easing the drug laws, from Catholic bishops to
prisoners' rights groups to politicians representing the black and
Latino communities that bear the brunt of drug crimes and drug laws,
point repeatedly to issues of cost, effectiveness and fairness. The
Rockefeller drug laws, their argument goes, imprison scores of
low-level drug offenders who need treatment, not jail.

A report promoting the benefits of treatment was released last week by
the Correctional Association of New York, the main group beating the
drum to overturn the drug laws.

Citing outside research, the report found that treatment as an
alternative to prison and treatment programs inside prison were less
costly and better at reducing repeat offenses than incarceration alone.

As those hoping to change the stringent sentencing laws have gained
political will from the decline in violent crime, the other side, too,
has used the decline to assert its case. "Violent crime is down
dramatically in New York State and, in our view, one of the main
reasons for the decline is the vigorous enforcement of our drug laws,"
says the letter from Mr. Carney, sent to the lawmakers last Wednesday.
"It would be extremely short-sighted to respond to these outstanding
reductions in violent crime by taking away the very tools we have used
so effectively to make our communities safer."

The district attorneys say that their voices have been drowned out by
tales of drug mules unwittingly bringing cocaine into the country and
first-time offenders put away for years and years. So lately, they
have been advancing their own tales: a woman whose husband was killed
by a drug offender, drug gangs that once ruled the mean streets of
their towns, statistics that show how many drug offenders now in
prison are in fact repeat felons (two-thirds, they say). Dealing
drugs, they insist, is an inherently violent business.

"My greater concern is that in this whole discussion, we seem to be
conceding that no violence comes of this," said a frustrated Mr.
Johnson. "I'm not conceding that. People need to be reminded of
everything that goes along with the drug trade."

As political strategy, it behooves the state's prosecutors to place
themselves to the right of Mr. Pataki and to let the Assembly
Democrats stake out a position to his left. And so in interviews last
week, prosecutors from Schenectady to the Bronx were careful not to
say they were against anything in his proposal. But prosecutors have
long opposed anything other than allowing appellate court judges to
review some sentences. The governor's latest proposal goes further
than that, and the Assembly bill is expected to go further still.

"The signal we are sending up there is you've got to move with a great
deal of caution," said the Queens district attorney, Richard A. Brown.
"You can't just go ahead and dismantle these laws, because they've
been very successful at lowering the level of violence."

Mr. Brown, a 16-year veteran of the state bench who is still referred
to as "Judge Brown," finds himself in the unlikely role these days of
arguing against judicial discretion. Judges, he delicately points out
now, are under other pressures. "They have enormous calendars, they
have cases to try," said Mr. Brown. "The pressure they are under is to
try to get people into treatment. Prosecutors are in the best position
to make independent judgments."

Judges, not surprisingly, generally support greater judicial
discretion, and Chief Judge Judith S. Kaye has expressed cautious
support for softening the mandatory sentences.

Much of what the governor has proposed is not what the prosecutors
fear most. His most ambitious proposal would affect prison prisoners
convicted of class A1 felonies -- the sale of two ounces of cocaine or
heroin or possession of four ounces of the same substances. In January
2001, there were only 618 such offenders behind bars.

Mr. Silver, the Assembly speaker, has said the governor has not gone
far enough to ameliorate the harshest sentences for low-level
offenders, but Mr. Silver has not divulged the specifics for his own
plan.

Privately, his aides say, the most contested areas of negotiation will
be the range of minimum and maximum sentences for lower-level
felonies. The battle will be over how much money will be allocated for
treatment, and over whether judges will be able to decide whether drug
offenders go to prison or to treatment. It is unlikely, they say, that
the entire sentencing decision will be given over to judges.