DRUG PLAN IS CLEAR-CUT, IN THEORY

The state's chief judge, Judith S. Kaye, last week announced an
ambitious statewide plan to offer treatment rather than prison to
thousands of nonviolent, drug-addicted criminals throughout New York
- -- a "national first," proclaimed the press release.

If only the enthusiastic jurist could really wave her magic wand and
send waves of defendants -- 10,000 by 2003, she predicts -- to be
helped rather than punished.

Alas, nothing is that simple in government. Judge Kaye, the chief
judge of the State Court of Appeals, has lots of partners empowered to
wave their own wands.

There are the Legislature and governor, who control the sentencing
laws and the state budget; defense attorneys, and the state's 62
muscular prosecutors, one a county. They jealously guard their
prerogatives, and wield the ultimate power over defendants by deciding
on what charges to indict them. Everything flows from the charges.

"She is doing everything in her authority to institute a saner and
more effective approach to this problem," said Robert Gangi, executive
director of the Correctional Association of New York, which monitors
prisons. "She is obviously trying to make a big splash to draw
attention to this. But the main power is with the governor, the
Legislature and prosecutors, and she has no authority over them."

The judge's plan is an outgrowth of a report she commissioned on drug
addiction and imprisonment, which cited a state estimate that 67
percent of all state prisoners are addicts. Noting that drug treatment
cuts down significantly on recidivism compared to incarceration, Judge
Kaye called for creating more specialized drug courts, whose judges
would screen and assess defendants and refer some nonviolent offenders
to drug treatment programs.

he judge has full authority to create those courts. But she cannot
compel prosecutors to make use of them. And while some prosecutors
actively support drug treatment an alternative to incarceration,
others are wary.

"You've got to think about people in the community," said Robert M.
Morgenthau, the Manhattan district attorney. "You can't say that
anybody willy-nilly, who is an addict and committed a crime, is going
to go into a treatment program. We've long supported more money for
treatment. But I'm not one to jump into something not knowing all the
details and I don't know what they are at this point. This is not a
simple process."

Another difficulty is sentencing. Judge Kaye's plan cannot alter
mandatory minimum prison sentences -- including the so-called
Rockefeller drug laws -- which rob judges of all discretion. Only the
State Legislature can change the sentencing guidelines, and it once
again declined to do so last week.

Those sentences are for felonies. Defendants who plead guilty to
misdemeanors could be be offered drug treatment instead of
imprisonment.

But the court system is so crowded and short of judges now that light
or even suspended sentences are the norm for misdemeanants. Why would
they agree to a year or two of drug treatment instead? Jonathan
Lippman, the state's chief administrative judge, says that drug court
judges would use the specter of tough sentences to pressure the
defendants into choosing drug programs. But would that pressure tactic
survive the inevitable challenges of defense lawyers?

There are questions also about cost; Judge Kaye predicts large savings
from her plan once it is in effect. But wouldn't it need resources up
front from a balky State Legislature?

"It would appear she is missing some things -- like money and D.A.
consent," said Assemblyman Jeffrion L. Aubry, a Democrat from Queens
and a leading critic of mandatory sentences. "I'm encouraged. She is
sending a fairly strong message from the judiciary that what we are
doing now is not working. But there are a lot of questions here. I
don't know what the availability for treatment is, and I would think
she needs money to create drug courts."

Judge Lippman said that with its annual budget of $1.5 billion, the
court system could finance the initiative without additional funds,
and he believes there is enough space in drug treatment programs for
many additional patients. But others predict that the judiciary would
have to seek new appropriations from the Legislature -- which only
last week rejected New York City's plea for more family and criminal
court judges.

All of which has led many in the criminal justice system to suggest
that Judge Kaye's announcement will have greater impact as a moral
declaration than as a practical program. It matters that state's most
prestigious jurist considers the imprisonment of many addicts to be
unfair, ineffective and costly. But enough to win over her fiercely
independent partners?

"This has a lot of merit," said Assemblyman Aubry. "In theory."