SOME STAY IN PRISON AFTER DRUG LAW REVISED

Reforms Fail to Address Inmates Also Convicted of Lesser Charges

ALBANY -- Lafayette Lewis remains behind bars five weeks after a judge
cleared the path for his release by invoking powers granted under the
revamped Rockefeller Drug Laws.

Lewis, who has served 13 years for a first-time narcotics offense, is still
at the Elmira Correctional Facility even though Albany County Judge Thomas
Breslin reduced his sentence to nearly mirror his time served.

A conviction on a lesser drug charge is blocking Lewis' freedom.

Changes to the 1973 laws signed by Gov. George Pataki last December let
judges resentence nonviolent felons convicted of the highest level, Class
A-1, drug offenses. But judges can't reduce sentences for lower-level crimes.

When the changes were approved, critics said they did not go far enough to
help the bulk of drug offenders serving time for Class B through E-level
offenses. It is now becoming clear that the failure of the new law to
address all but the stiffest of drug penalties is hurting even those few
the limited measure was designed to assist.

"One would expect the A-1 sentence to be longer, so that would be the one
to worry about," said Albany attorney Lewis Oliver, who appeared in court
on Lewis' behalf. "That's probably why the so-called reform legislation
overlooked this problem."

Lewis, a Niagara Falls native, and two other men were pulled over for
speeding on the Thruway in September 1990. The officer found more than 4
ounces of cocaine in the car that Lewis insists wasn't his. Nevertheless,
he was convicted in 1991 of first-degree criminal possession of a
controlled substance -- an A-1 level crime with a sentence of 25-years-to-life.

On April 13, Breslin cut Lewis' sentence to 13 years, eight months and 16
days, making him immediately eligible for parole.

With credit for good time, it seems Lewis, 37, should be free. But he's
also serving a concurrent 12 -to-25-year sentence for second-degree
conspiracy to sell drugs, a Class B felony, stemming from the same 1990
incident. Breslin couldn't reduce that sentence.

Lewis' fate now rests with the parole board; his hearing is scheduled for
Monday.

Lewis is not alone in his frustration of freedom deferred. Of the 446 Class
A-1 offenders in the prison system when Pataki signed the new law, 66 have
been resentenced, but only 21 were released as of April 30, according to
the state Department of Corrections.

Not all the affected inmates share Lewis' exact circumstances.

Last month, Willie Rodriguez' relatives traveled from Atlanta and Manhattan
to Albany to watch what they thought would be his resentencing and release.
But Rodriguez, who has spent more than two decades in prison for a
first-time drug offense, had two convictions -- an A-1 and an A-2 --
stemming from the same incident -- a situation unbeknownst to his family
and his lawyer.

Rodriguez' resentencing was delayed until his attorney could submit new
paperwork. His A-1, 25-year-to-life conviction was reduced Thursday to 18
years. But, under the new laws, the judge couldn't touch the A-2
conviction. Now Rodriguez, too, goes before the parole board.

The state Legislature's 2004 drug law agreement did away with life in
prison and reduced sentences for A-1 offenders, but only allowed Class A-2
and B offenders to reduce their sentences through so-called "merit time,"
achieved by earning a general equivalency diploma, for example, or
completing drug rehabilitation programs.

According to the Department of Corrections, there were 14,844 drug
offenders in the state prison system as of March 14. They break down as
follows: 403 A-1s; 1,646 A-2s; 4,876 Bs; 3,720 Cs; 3,555 Ds and 644 Es.

The Democrat-led state Assembly is likely to soon pass a bill seen as the
next step in drug law reform. It would allow some lower-level, Class B, C,
D and E, drug offenders to be diverted into substance abuse treatment
facilities rather than prison and also largely return sentencing discretion
to judges.

Under the current laws, judges are required to impose specific sentences
based on the weight of drugs an offender is convicted of selling or
possessing. With the exception of district attorney-controlled alternative
incarceration programs, judges have few options outside prison for those
offenders whose addictions may have driven them to commit their crimes.

The measure's sponsor, Assemblyman Jeffrion Aubry, D-Queens, said his goal
is to "stake out a strong position and put it in the Senate's lap." It's
unlikely further reform will be achieved this year, he said, but that is
likely to change in 2006 when every statewide office and all 212
legislative seats are up for re-election.

"Whatever happens in 2005 is just a warm-up," Aubry said. "The individuals
planning for 2006 are saying to the Senate, 'What you do now determines
what we do next year.' "

When the Senate voted in 2004 to modify the drug laws, Senate Majority
Leader Joseph Bruno, R-Brunswick, said "There is more to be done, and we're
going to get there."

But revisiting this issue doesn't appear to be among the Senate's top
priorities. Tougher penalties for some drug crimes have been proposed;
further sentencing reform has not.

"We're willing to entertain various proposals, but it's four weeks before
the end of the session, and some major three-way discussions would have to
take place for there to be any movement," said Craig J. Miller, spokesman
for Sen. Dale Volker, R-Depew, chair of the Senate Codes Committee.

Part of the problem is the political pressure that spurred state lawmakers
to act in 2004 has now dissipated. The changes came three months after the
surprise Democratic primary defeat of then-incumbent Albany County District
Attorney Paul Clyne by his former employee, David Soares, who made drug law
reform central to his campaign. Soares' win worried some of the state's
district attorneys, who have been among the most vociferous opponents of
reform.

Talk of reform in a political context this year has been confined to New
York City, where it is playing a role in the contest for Manhattan district
attorney. Leslie Crocker Snyder has raised the issue in her primary
challenge to the eight-term incumbent, Robert Morgenthau, who -- until
recently -- said little about the need to change the state's harsh drug laws.

Next year will be a much different story. With every statewide elected post
up for grabs, the Senate Republicans, who lost three seats last fall and
came within 18 votes of losing a fourth, might be more amenable to
reconsidering their position.

"We're still hopeful that something will happen this year because there is
widespread awareness that the changes made last year were not real reform,"
said Robert Gangi, executive direct of the Correctional Association of New
York, a prison watchdog group that has long sought full repeal of the
Rockefeller Drug Laws. "At the same time, if nothing does happen this year,
because it's getting late, next year the heat will be on."