'BARBAROUS' JUSTICE

Report Reflects Judges' Long-standing Criticism of Harsh Rockefeller Drug Laws

New York State's Rockefeller Drug Laws, enacted in 1973 in an attempt to
combat a growing scourge of addiction, have instead become monstrosities of
their own by mandating harsh terms that are "stupid and irrational" and an
"absolute atrocity." And when used by prosecutors to induce guilty pleas,
the statutes "contravene the cruel and unusual constitutional interdictions
... "

These scathing remarks would be unsettling enough if they came from
activists who have long advocated reform. But they are even more unsettling
because the critics are none other than the very judges who are required by
the Rockefeller Drug Laws to impose a term of 15 years to life for those
convicted of selling two ounces or possessing four ounces of a narcotic
substance.

To Bronx County Supreme Court Justice Frank Torres, the drug laws are
barbarous and an atrocity. He expressed his frustrations during a 1996
sentencing of a man to a 15-year minimum term, noting that it was
equivalent to that for taking a human life. The charge of cruel and unusual
punishment was made almost 20 years before Judge Torres' remarks, by Bronx
Supreme Court Justice Mary Johnson Lowe. Thus, for almost as long as they
have been on the books, the laws have been challenged by the judiciary.
What an inversion of due process.

Nor are the critics concentrated downstate. To the contrary, the judges who
have weighed in against the Rockefeller laws preside around the state,
including Supreme Court justices in Orange, Broome and Monroe counties, as
well as downstate. And several appellate judges have joined them over the
years in denouncing the statutes. The Correctional Association of New York,
a longtime advocate for drug law reform, has just issued a compilation of
these stinging remarks by jurists that, as a whole, make a compelling case
for reform.

More important, the judges' comments provide a persuasive counter-argument
to the claims by district attorneys that the Rockefeller Drug Laws should
be retained as an important law-enforcement tool. Regrettably, state
lawmakers seem to have bought the DAs' claim that the laws help them win
guilty pleas and encourage defendants to provide information leading to the
arrest of others.

The prosecutors are skilled at making a persuasive case in the courtroom,
so it is no surprise that they have been able to keep many lawmakers on
their side. But the judges are even more persuasive when they punch holes
in the prosecutors' arguments. That is just what happened in 1978, for
example, when Justice Lowe observed: "Life imprisonment is mandated if the
defendant exercises his constitutional right to go to trial and loses,
while probation may be imposed if he pleads guilty ... . Can one truly say
that a defendant who opts for the plea plus probation has made a 'voluntary
choice,' or has the state so loaded the dice that the hazard of the roll
chills the free exercise of the trial alternative?"

As New York County Supreme Court Justice James Yates noted in a 1996
interview, the person who decides whether a defendant in a drug case gets a
break is "an assistant district attorney who is not bound by written public
guidelines or standards, is not compelled to hear arguments in favor of
reduction, is not required to explain or justify the decision, is not held
accountable by the public or through judicial processes and the decision is
not reviewable by any court ... "

In short, it is a system rigged for miscarriages of justices, and urgently
in need of reform.