DRACONIAN DRUG LAWS NO PANACEA

Population soars in New York's prisons, and the craving for illegal drugs
remains on its streets

Confronting a drug crisis in the early 1970s, Gov. Nelson A. Rockefeller and
New York lawmakers enacted the harshest sentencing laws in the nation --
imposing penalties so punitive and so painful that, politicians and
policy-makers were certain, few would dare to deal or even risk possessing
narcotics.

By almost all accounts, they were wrong.

By almost any standard, the Rockefeller Drug Laws have failed.

New York's prison population has skyrocketed as offenders convicted of
nonviolent drug crimes have filled tens of thousands of new cells.
Meanwhile, the percentage of new inmates doing time for violent crimes has
plummeted.

And there is little proof that the threat of a life sentence has reduced
either the supply of illegal drugs or the demand for them on the street.

"Twenty-six years has proven beyond any shadow of a doubt that these laws
are not working,'' said former state Sen. John R. Dunne, a Republican
sponsor of the Rockefeller Drug Laws in 1973 and now a leading advocate for
reform. "There hasn't been any significant reduction in drug abuse. . . .
The experience has been that for every dealer taken off the streets, there
are ready, willing and able volunteers to take that place.''

Criminologists and reform advocates -- mainly families of prisoners, liberal
activists, defense lawyers and clergy -- have been saying that for 25 years.
But their pleas have generally fallen on deaf ears at the Capitol, where
there is little incentive, and often a political price to pay, for easing
penalties for criminal behavior.

But now, observers say, the tide may be turning.

Some of the bill's original sponsors, like Dunne and former Sen. H. Douglas
Barclay, a conservative Republican, are advocating revision. Gov. George
Pataki, who wears his law-and-order credentials like a badge of honor, last
week proposed slight modifications to the Rockefeller Drug Laws. Chief Judge
Judith S. Kaye, who rarely advocates legislative initiatives, has weighed in
with her own reform proposal, and three of her current or former colleagues
on the Court of Appeals, two of them conservatives, say it is time to
rewrite the Rockefeller Drug Laws.

Even the staunchest supporters of the drug laws -- like Sen. Dale Volker of
Erie County and the state District Attorneys Association -- are open to
modification, albeit modest.

"The coalition of folks calling for change is now more part of the
mainstream than ever,'' said Robert Gangi, executive director of the
Manhattan-based Correctional Association of New York State, an organization
that has been seeking repeal of the Rockefeller Drug Laws for years. "It's a
non-election year, and . . . we're hopeful the policy-makers will be
affected by this kind of growing consensus.''

Under the Rockefeller Drug Laws, a person with no prior record and no
history of violence who is convicted of a single sale of two ounces of
cocaine faces the same mandatory minimum sentence as a cold-blooded
murderer: 15 years to life. Drug felons in New York are often more severely
punished than defendants convicted of such violent crimes as rape, robbery
and manslaughter. No other state has such a tough law, nor does the federal
government.

Pataki last week proposed easing some parts of the laws, in exchange for the
elimination of parole. The governor wants to let appellate judges, in some
cases, reduce from 15 to 10 years the mandatory minimum sentence imposed on
defendants convicted of possessing narcotics.

But repeal of the Rockefeller laws "is not something this administration has
ever proposed or will ever consider,'' according to the governor's criminal
justice director, Katherine N. Lapp.

The Rockefeller Drug Laws are rooted in frustration and ignorance.

When the laws were enacted in 1973, drug abuse was rampant, treatment
programs were primitive and the prospects for rehabilitation ending the
cycle of dependence and crime were slim, at best.

Nelson Rockefeller, said Dunne, simply did not know what else to do with
drug felons except, essentially, to lock them up and throw away the key.

"This is the time for brutal honesty regarding narcotics addiction,''
Rockefeller told the Legislature in his 1973 State of the State address. He
called for "drastic measures'' to end the "reign of fear'' caused by the
illegal drug trade. "We have tried every possible approach to stop addiction
and save the addict through education and treatment -- hoping that we could
rid society of this disease. . . . But let's be frank -- let's 'tell it like
it is': We have achieved very little permanent rehabilitation and have found
no cure.''

The statutes Rockefeller shepherded through the Legislature are uniquely
harsh -- so harsh, in fact, that they have been condemned by Human Rights
Watch, an organization that usually focuses its concerns on Third World
dictatorships. The group calls the Rockefeller laws so "disproportionately
severe'' that they "contravene the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights and the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.''

Rockefeller himself had doubts about the effectiveness of the measures he
proposed, acknowledging that "all the laws on the books won't work to deter
the pusher of drugs.'' And now, after a quarter-century of experience,
critics say, time has proved him right.

"It's easy for you to put us in jail for the Rockefeller Drug Laws, but with
all the people in jail, why do you still have drugs in the streets?'' asked
Elaine Bartlett, a prisoner for the last 15 years at Bedford Hills
Correctional Facility. Bartlett was convicted of selling 4 ounces of cocaine
in a single transaction at a Latham motel.

"I'm not a kingpin,'' she said. "I ain't met a kingpin in here yet. You
still have drugs coming into the country. If I come out of here a bitter,
angry person, what good is that going to do society? The whole thing is just
not right.''

Over the past quarter of a century, the state prison population has
exploded -- from 12,500 inmates when Rockefeller first proposed the drug
laws to about 70,400 now -- while the percentage of new inmates imprisoned
for violent crimes has decreased roughly 30 percent.

Twenty years ago, the state sent six violent felons to prison for every drug
offender. Now, the state incarcerates two nonviolent drug offenders for
every violent felon. And on top of what has already been the most massive
prison construction program in history, the state is building three
1,500-inmate prisons, costing $180 million each, to handle the overflow.

A study last year jointly funded by the MacArthur Foundation and the Robert
Wood Johnson Foundation found aggressive law enforcement and tough
sentencing statutes like the Rockefeller Drug Laws have had little effect on
drug usage. Despite a 150 percent increase in arrests between 1980 and 1995,
there was virtually no decline in illegal drug use, the study found.

Moreover, a 1997 cost-effectiveness study by the Rand Corp. showed that
treatment is at least as effective as incarceration and one-seventh as
expensive.

"When the laws were adopted there was a great hue and cry that something
should be done to tighten up the drug trade, and there should not be a
turnstile with people coming back out again,'' said Barclay, now retired
from the state Senate and practicing law. "I think it's time to perhaps look
at them again and see what the costs are and see if there's a better way of
doing it.''

Several reform proposals now await negotiation in the state Capitol, ranging
from plans that would wipe the Rockefeller Drug Laws off the books to more
tepid overtures that would modify, but basically keep intact, the harsh
sentences that law enforcers often wield as a club to encourage
plea-bargaining and snitching.

Prosecutors point out that relatively few suspects arrested for Rockefeller
Drug Law crimes are ever indicted for A-I felonies, and fewer still are
convicted. In fact, only about 640 New York prison inmates are doing time
for A-I drug felonies, compared to about 22,000 serving sentences for
lower-level narcotics offenses.

Reason: Facing a possible life sentence, most drug dealers would rather cop
a plea and turn in a few of their friends than risk the wrath of
Rockefeller. The upshot, prosecutors say, is that one arrest may ultimately
put several drug runners out of commission.

John M. Ryan, a former state trooper who is now chief assistant district
attorney in Queens County, said that anecdotal evidence, if not statistical
proof, indicates the Rockefeller Drug Laws are effective. Ryan said he knows
for certain that some drug dealers carefully calculate the weight of the
drugs in any particular transaction to stay under the Rockefeller law
threshold.

"They don't want to run into the Rockefeller Drug Laws,'' Ryan said. "The
system is working.''

Ryan also rejects the notion that most drug crimes are nonviolent, even
though they are recorded as such in state records.

It is not unusual, the prosecutor said, for a desperate drug courier to
swallow plastic bags or condoms stuffed with narcotics, with the intention
of retrieving the contraband when the coast is clear. However, the bags
sometimes break and the courier instantly overdoses. Not uncommonly, that
results in an impromptu amateur autopsy by a dealer eager to reclaim his
merchandise, Ryan said.

Where the bargaining system has the most flexibility is at the
pre-indictment stage -- when a suspect has been arrested, charged by police
with a Rockefeller Drug Law felony and is awaiting action by a grand jury.
At that point, a district attorney who, for whatever reason, wants to shield
a suspect from a harsh sentence can simply secure an indictment on a lesser
offense -- effectively bypassing the Legislature's sentencing mandates --
even though the evidence is there to prosecute a higher charge.

Under the law, prosecutors can recommend lifetime probation for some
defendants who rat out other drug criminals. But typically, that perk
benefits the bigger dealers rather than the smaller ones, critics say,
because marginal offenders simply don't have enough information on a "big
fish'' to entice a district attorney to make a deal. On the other hand, the
bigger fish have more information to share, and more leverage with which to
negotiate.

"From a prosecutor's standpoint, the threat of an indeterminate sentence
like 15 to life is a heavy, heavy tool in getting defendants to plead
(guilty),'' said Anthony Thompson, a professor at New York University School
of Law and former public defender who now runs a prosecution clinic.
"However, for prosecutors who care about pursuing, first and foremost,
violent crime and who want the more serious offenders to have access to
judicial and prison resources, the Rockefeller laws are an obstacle. ''

Over the last decade, Albany attorney Thomas Neidl has slowly come to a
similar conclusion.

In the mid-1980s, Neidl was Albany County's chief drug prosecutor, the
assistant district attorney who handled some of the first A-I drug trials in
the Capital Region. He won several convictions, and many of the defendants
he convicted remain behind bars.

Now a defense attorney, Neidl is having reservations and is particularly
bothered by the fact that he helped send away "small fish'' who made the
tragic mistake of taking their chances with a jury and paid a steeper price
than the kingfish who turned state's evidence.

"Some people went to trial, and rolled the dice and got convicted,'' Neidl
said. "I believe prosecutors and judges should look at those inequities, and
(decide between) somebody who deserves a break as opposed to filling the
measures of harshness that the laws can impose.''

In fact, many of the Rockefeller Drug Law convicts are so-called mules,
couriers who carry and deliver drugs for dealers.

Angela Thompson was a mule. She was 17, living with a drug-peddling uncle in
Harlem, when she delivered $2,000 in cocaine to an undercover cop on Aug.
30, 1988. She had no prior record.

But under the Rockefeller laws, Thompson got 15 years to life, exactly the
same sentence imposed on her uncle, a thrice-convicted felon and major drug
dealer. Thompson served eight years in prison before Pataki granted her
clemency in 1997. In the five years he has been governor, Pataki has
commuted sentences of 13 inmates, 11 of them convicted under the Rockefeller
Drug Laws.

Shortly after taking office, Pataki called for a major overhaul of the
Rockefeller Drug Laws. "Rockefeller Drug Laws have filled New York's prisons
and have not increased public safety,'' the governor said in 1995.

Last week, Pataki finally offered a specific alternative, of sorts. But his
modest reform recommendations came as a disappointment to advocates who had
hoped the Republican governor could achieve politically what his Democratic
predecessor, Mario Cuomo, could not.

Yet even though Pataki has little reason to worry about being viewed as soft
on crime, there are political hurdles that could thwart even his modest
proposal. Although corrections officers say they have no position on
Rockefeller Drug Law reform, the fact that those 1973 laws keep hundreds of
guards employed in key Republican districts cannot be ignored, political
observers say.

"If we ignore the political realities that upstate is suffering one of the
worst economic depressions in New York as the rest of the economy
flourishes, and the fact that prison building unquestionably will provide
jobs and careers for a lot of young people in those communities, there are
tough political decisions to be made,'' said Thompson, the NYU professor.