HEADLINES, MISINFORMATION CLOUD DRUG LAW

Headlines can be deceptive. Witness the headline from The Ithaca Journal
last Saturday (June 15), stating "District attorneys back change in
stringent drug laws." In fact, the District Attorney's Association is
against any major changes in our drug laws, because those laws are working
fine.

Misinformation fuels the reform movement. The chief fallacy is that our
prisons are filled with hapless addicts. The addict's typical crime is the
simple possession of cocaine or heroin, which is a misdemeanor and always
permits a sentence to treatment. The inmates in state prison on drug
charges are overwhelmingly there, not because they have committed crimes of
simple possession, but because they have committed crimes of selling. They
are drug dealers.

Statistics from the state's Division of Criminal Justice Services show that
86 percent of state prisoners doing time on drug charges were convicted of
drug trafficking crimes -- that is, drug sale or drug possession with
intent to sell. Of the remaining 14 percent, three-quarters were initially
charged with trafficking crimes, but were afforded plea bargains down to
crimes of possession alone. In other words, 97 percent of drug-crime
prisoners are there for drug trafficking.

Prisoners are rarely first offenders. The governor has acknowledged this,
stating in a recent press release that "suspects arrested on felony drug
charges in 2001 averaged 3 prior felony arrests and 4 prior misdemeanor
arrests." According to DCJS, 77 percent of prison inmates are second or
third felony offenders.

Another fallacy driving the reform movement is that our judges lack
sentencing discretion, and that prosecutors are forcing defendants into
prison. Not true. Consider the escalating scale of drug offenders:

1. A user who possesses a small amount of cocaine or heroin commits only a
misdemeanor and cannot be sentenced to prison. That user will be eligible
for probation and drug treatment, no matter what the prosecutor's opinion
may be.

2. If the possession is larger, up to one-eighth ounce of heroin or
cocaine, which is enough for dozens of doses, the crime is a felony, but
the defendant is still eligible for probation and drug treatment, again
without regard to the prosecutor's opinion.

3. If we move up still further to a higher-level felony, such as the one
committed when a street-level dealer sells a bag of cocaine to an
undercover officer, the defendant must get a state prison term of at least
1 to 3 years. That may sound harsh, but our drug laws divert such a
defendant from a regular state prison into a "shock incarceration"
facility, meaning the defendant will get six months of boot camp-like
discipline and intensive drug education, followed by release on parole,
which may include drug treatment. Again, all this happens based on the
judge's sentencing decision, without regard to the prosecutor's opinion.

4. Next, if we consider that same street-level dealer but assume he is on
his second or later felony conviction, he must get a sentence of 4-and-1/2
to 9 years. That also sounds harsh, but given our early release laws, this
dealer will rejoin the community on work release after doing 2 years.

5. Finally, consider the drug felon who commits the highest-level drug
crime on the books. This is the dealer who sells two ounces, or possesses
four ounces, of cocaine or heroin. This defendant must get a sentence of 15
years to life, a long stretch indeed. But remember that two ounces is a lot
in the drug business. Depending on how it is "cut," two ounces of cocaine
may be enough for 500 to 4,000 sales, enough drug trafficking to put any
neighborhood in jeopardy.

Remember, too, that it's rare that defendants are actually sentenced to
such long prison terms. There were only 21 across the entire state in 2001.

This small category is the one getting all the attention, as reformers trot
out weepy stories about alleged drug "mules" sentenced to long prison
terms. In fact, no one can be convicted of any drug crime without proof
that he knew he was carrying drugs.

Still, to quiet the state Assembly's complaints about these allegedly
mistreated defendants, the District Attorney's Association has joined the
governor's proposal calling for appellate review of long drug sentences, so
a higher court can modify sentences downward if there is truly some
injustice to be found. That's about the only softening the District
Attorney's Association endorses, so, please, no more deceptive headlines
suggesting otherwise.