Source: Times Union (NY)
Copyright: 1999, Capital Newspapers Division of The Hearst Corporation
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Author: Melissa Grace, Staff Writer

FIGHTING DRUGS WITH FEDERAL TIME

New York's Rockefeller Drug Laws, federal sentencing statutes enacted 13
years ago were touted as a law-enforcement tool that would put the biggest
drug dealers behind bars for the longest time.

And like the Rockefeller Drug Laws, the federal statutes have come under
criticism for ensnaring countless low-level day laborers in the drug trade,
while the barons often plea-bargain -- even turning in their workers in
exchange for lighter penalties. After all, it is the kingpins, not the
drug-carting "mules'' and desperate addicts, who have the best information
to trade.

"It's the person caught holding the bag, who usually is the poorest, who is
given a hit to carry the bag. They are the ones most likely to be
convicted,'' said Inga Parsons, a criminal defense lawyer and professor at
New York University Law School.

Once convicted, they stand before judges who have been virtually stripped
of discretion by federal sentencing laws.

Those laws are coming under increasing scrutiny because of similar
proposals for so-called "determinate sentencing'' in state courts offered
by Gov. George Pataki last week, in connection with changes in the
Rockefeller Drug Laws.

A 1991 Troy case is perhaps typical of the situation confronting federal
courts. The leader of a drug ring, Michael Cioffi, turned on his
accomplices and plea-bargained to a prison term of about seven years. His
co-defendants went to trial and were convicted, in part based on Cioffi's
testimony.

Once they were convicted, the judge had no choice but to impose the
legally-mandated sentences: up to 27 years in prison.

"I certainly would like to see the emphasis back in the judge's hand,''
said Chief U.S. District Judge Thomas J. McAvoy, the conservative
Republican from Binghamton who sentenced the Troy convicts.

Federal law has shifted sentencing power from judges to prosecutors, McAvoy
said. The prosecutors effectively control the potential sentence by
deciding which charges to file and which offers to bring to the
plea-bargaining table.

The Troy case illustrates what critics say is a system that provides
prosecutors with a powerful tool to all but coerce guilty pleas, while
severely limiting the power of judges to fashion appropriate sentences.

Some judges, like U.S. District Judge Jack Weinstein, of Brooklyn, refused
to take drug cases because they oppose mandatory minimum sentences.
Weinstein said that he had a "sense of depression about much of the cruelty
I have been party to in connection with the war on drugs,'' and refused to
handle such matters until Congress afforded judges some discretion.

U.S. Supreme Court Justice Anthony Kennedy has also questioned the wisdom
of mandatory minimums. "I think I'm in agreement with most judges in the
federal system that mandatory minimums are an imprudent, unwise and often
unjust mechanism for sentencing,'' Kennedy said in 1994 testimony before a
congressional committee.

Yet New York may be heading down a similar road as the federal government.

Last week, Pataki proposed giving judges some minimal discretion in
sentencing in Rockefeller Drug Law cases -- in which their sentencing
options now are virtually nonexistent -- while eliminating their power to
fashion specific sentences to specific crimes in other matters.

As a condition of adjusting the Rockefeller Drug Laws, Pataki is insisting
on a "truth-in-sentencing'' measure that would essentially mandate specific
sentences and eliminate parole -- in effect a system that mirrors the
federal governments, with one huge difference: While the federal guidelines
give the judge a very narrow range in which to sentence a defendant -- say,
18 to 24 months -- the Pataki proposal would afford judges extraordinary
leeway. For example, under Pataki's plan, a non-violent offender convicted
of a Class B felony could be sentenced to a term of anywhere from 14 months
to 17 years.

The Pataki administration is seeking to maintain the better aspects of the
federal system while scrapping the most controversial.

At best, reviews of the federal experience are mixed: civil libertarians,
defense attorneys and judges almost unanimously despise the sentencing
mandates, while prosecutors adore them.

On the one hand, determinate sentences do ensure that defendants who commit
similar crimes will receive similar penalties. On the other hand, they
often fail to take into account the unique circumstances of a particular
offense and the characteristics of an offender.

"The guidelines are extremely harsh,'' said William P. Fanciullo, a former
federal prosecutor who quit his job in Albany in part because he objected
to the drug laws. "In many cases, they are unfair.''

Fanciullo said rehabilitation isn't even a consideration anymore as
prosecution is weighed, and that harsh sentencing seems to be the only
weapon in the federal war on drugs.

"I would like to have crime-free streets too, but this isn't the way,'' he
said.

Since the U.S. sentencing laws were adopted, the federal prison population
has exploded, from less than 60,000 to more than 127,000. The Federal
Bureau of Prisons' budget has doubled since 1989 to $3.4 billion. More than
60 percent of federal prisoners are drug offenders, but statistics suggest
there has been little decrease in drug crimes as a result.

"We can't incarcerate our way out of the drug problem,'' said Barry R.
McCaffrey, the four-star general who heads the National Drug Control Policy
office and who has called for reform of the laws.

Terrence Upshaw, a convicted drug dealer operating most recently in North
Troy, was arrested in 1998 and charged with his third drug felony, for
selling crack cocaine. Had he cooperated with prosecutors, he would have
received a 10-year term. But he rolled the dice and went to trial, and now
he's serving life in prison with no chance at parole.

McAvoy, the judge who sentenced Upshaw, noted that under the law, he was
forced to impose on Upshaw the same penalty he has meted out to
cold-blooded, multiple killers.

"Upshaw is a perfect example of how the prosecutor holds the key to a jail
cell,'' said Thomas J. O'Hern, Upshaw's Albany-based defense attorney.

Critics -- and, in a somewhat different vein, supporters -- note that the
sentencing mandates provide prosecutors with substantial power.

"Our job is to enforce the law, and to the extent that there may be a
perceived, systemic injustice, it's really up to Congress to change that,''
said U.S. Attorney Thomas Maroney, the top federal prosecutor in this region.

Because so many first-time drug offenders were going to prison, Congress in
1994 passed a "safety valve'' provision that allows a judge to depart from
mandatory minimum sentences for first-time, nonviolent offenders who played
a small role in a drug distribution network and who have a limited criminal
history. However, the bulk of the mandatory sentencing laws remain intact
- -- and controversial.

This year, Rep. Charles Rangel, D-N.Y., introduced a bill to repeal
mandatory minimum sentences for nonviolent drug crimes, particularly
first-time crack offenders. But there is also legislation pending to
stiffen mandatory minimum drug sentences, and some federal law enforcement
agents scoff at the notion that drug crimes are not violent.

"By the nature of the business, it's violent. . . . To say it's not is like
saying a bank robber is not violent because he didn't show a gun,'' said
one federal prosecutor.

Frederick J. Scullin, who served as the top federal prosecutor in northern
New York before he was appointed to a federal judgeship by President Bush
in 1992, said that the tough mandatory terms he is required to impose
sometimes fail to fit the crime.

"Maybe it's a young person who made a couple of bad mistakes right in a
row,'' Scullin said. "Most judges agree that it's important to revisit
those guidelines to see where more discretion should be put in, but we
can't get Congress to agree. It's not the 'politically desirable' thing to
do.''

New York judges have not been quite as outspoken about the Rockefeller Drug
Laws. But the state's chief judge, Judith S. Kaye, has proffered a reform
proposal under consideration in Albany that would give judges more leeway
in sentencing.

Several jurists question why the federal government enacted its own tougher
drug-sentencing laws after the ones in New York failed to stem the tide of
drugs. And many observers question why New York is now considering
truth-in-sentencing when similar programs have proved so controversial in
the federal system.