STATE'S DRUG LAWS AREN'T BROKEN

As the end of this year's session of the state Legislature approaches,
pressure is mounting to pass legislation reforming the Rockefeller Drug
Laws. The pressure comes primarily from a group of vocal citizens and some
newspaper editorial boards who assert that the penalties for drug crimes are
disproportionately severe and should be scrapped in favor of drug treatment.

These well-organized and vocal groups beat a constant rhetorical drum: the
Rockefeller Drug Laws carry "Draconian" penalties for minuscule amounts of
drugs and are a failure resulting in the warehousing of thousands of
nonviolent drug offenders.

On the other side are several law enforcement groups, most notably the New
York State District Attorneys Association, that have acknowledged the need
for some reworking of the drug laws for the highest level drug crimes, but
generally oppose sweeping changes.

So which facts should the Legislature and, most importantly, the public
consider when deciding on the need for drug law reform?

Attention should be focused on the current state of the drug laws and their
enforcement. The scenario most often cited by the reformers is the
first-time offender convicted of a class A-I drug felony for possessing a
few ounces of crack cocaine and who faces a sentence of 15 years to life in
prison. The reformers point to a handful of these cases and claim that they
represent the injustice of the Rockefeller Drug Laws.

However, the individuals who fall into this category represent an
infinitesimal percentage of those incarcerated in state prison on drug
charges.

All sides on the debate agree that there should be some mechanism for
dealing with potentially disproportionate sentences for first-time drug
offenders convicted of class A-I felonies.

Of much greater significance to the daily lives of New Yorkers is how the
law treats street-level dealers. Currently, any sale of cocaine is a class B
felony punishable by an indeterminate sentence of up to 8 1/3 to 25 years in
prison. On the other hand, possession of a few pieces of crack cocaine is a
misdemeanor, comparable to petit larceny, which carries a penalty of up to
one year in jail. Clearly, the current law draws a sharp distinction between
those individuals who sell drugs and those who use them.

Not surprisingly, the records of the state Department of Correctional
Services give an accurate profile of who goes to state prison in New York
for drug crimes. The reformers tend to lump all "drug offenders" into the
same category, without distinguishing between those who sell and those who
use. However, records show that 86 percent of all individuals incarcerated
for drug offenses are convicted of either selling drugs or possessing drugs
with intent to sell.

When you include the individuals who were originally charged with possession
with intent to sell, but who ultimately pleaded guilty to simple possession,
the figure rises to 97 percent. Of all the individuals in state prison for
drug crimes, 77 percent are second-time felony offenders.

The notion that the prisons are filled with hapless drug users incarcerated
under the Draconian drug laws is not merely a myth, it is more aptly a lie.

The next issue to consider goes to the center of the debate: Just how
Draconian are the laws for selling drugs? Criminal sale of a controlled
substance is deemed a nonviolent offense and carries a penalty of up to 8
1/3 to 25 years in prison for first-time offenders and up to 12 1/2 to 25
years in prison for repeat offenders. According to the state Division of
Criminal Justice Services, in 2000, the average prison sentence for those
individuals convicted of selling drugs was 2 years, 8 months to 5 years, 7
months.

Moreover, because it is an indeterminate sentence, the inmate is eligible
for parole after serving the minimum of the sentence and must be released
after serving two-thirds of the maximum. Hardly Draconian.

Is there really a need to drastically rework the drug laws? The District
Attorneys Association flatly states no. The reasons are simple: The
connection between drug dealing and violent crime is so well documented as
to be beyond challenge, and significant studies conclusively demonstrate
that aggressive prosecution of drug crime results in a marked drop in
violent crime in the locale where the stepped-up enforcement takes place.

On the other hand, when street-level enforcement is scaled back, violent
crime increases almost immediately. Rather than being a failure, tough
enforcement of the drug laws results in fewer victims of violent crime.

What is on the table as far as drug law "reform" goes? The Assembly
Democrats have proposed a bill that would allow judges, over the objection
of district attorneys, to sentence even second felony offenders convicted of
selling drugs to drug treatment, circumventing mandatory minimum sentences.
This is a truly pernicious piece of legislation.

Bearing in mind that 77 percent of all people sentenced to prison for drug
crimes are second-time felony offenders, the proposal is nothing less than a
legislative jailbreak for drug dealers. Under the Assembly proposal, a
two-time convicted crack dealer would be entitled to be considered for drug
treatment if he tests positive for marijuana. Even alcohol dependence would
qualify a narcotics seller for treatment. The proposal invites anyone
charged with selling drugs to claim addiction in order to avoid prison.

Under the current law, district attorneys and judges must both agree to a
plea bargain that would include drug treatment, and there are dozens of
nondrug offenses that carry mandatory minimum sentences. This statutory
framework promotes consistency in sentencing and yet provides for
individualized sentences. Drug cases should not be treated any differently.

The reformers argue that removing the district attorney from the process
would eliminate grave injustices in the sentencing of drug offenders by
wresting the plea bargain club from overzealous prosecutors. However, as the
numbers overwhelmingly demonstrate, the people who find themselves in state
prison in New York for drug crimes are second-time felons who sell drugs.
What is the great injustice that needs to be remedied by judges alone?
Unfortunately, not all judges possess the wisdom of Solomon, and most are
guided by their own personal philosophy when it comes to sentencing.
Granting to judges absolute discretion to sentence drug offenders would, in
the case of many judges, amount to the decriminalization of drugs. The
Assembly proposal is bad for New York.

The most effective proposals do not interfere with the current enforcement
of the drug laws, but rather provide funding for drug treatment for addicted
offenders. Innovative programs such as Drug Treatment Alternative to Prison
and Drug Court, which district attorneys are active participants in, have a
demonstrated record of success. Such programs work because judges, defense
lawyers and prosecutors work together to screen potential candidates and
provide long-term oversight. Scrapping mandatory minimum sentences and
giving judges unfettered discretion to sentence any offender to any sentence
that a particular judge might think would do the most good would be a
dangerous mistake.

New York's sixty-two district attorneys are united in our commitment to
preserving the tools of effective justice. The safety of all New Yorkers is
our charge. The state Legislature in its desire to placate those who call on
it to "drop the Rock," must be mindful not to drop the ball.