LOSING BATTLE TO REVISE DRUG LAW

Political Factors Hobble Effort To Soften 1973 Rockefeller Acts

Albany - They've rallied on the Capitol steps, trotted out teary-eyed
children of drug defendants and enlisted the state's top judge in
their cause.

Yet even as they have stepped up their campaign this legislative
session, advocates of overhauling New York's stiff Rockefeller-era
drug laws have not convinced top lawmakers and Gov. George Pataki,
whose support is essential to any major change.

Because of a confluence of political factors, observers say, there is
virtually no chance the laws will be repealed soon and only a slim
chance they will even be modified. And the only proposal being
seriously considered, from Chief Judge Judith Kaye of the State Court
of Appeals, is seen by critics as providing political cover to tinker
with the laws without making serious changes.

The reasons for the deadlock, elected officials say, include the
continuing opposition of Senate Republicans intent on keeping crime
rates low and building prisons; a change in Pataki's position that
some believe is linked to his national ambitions; and the reluctance
of top Democrats to tackle an issue they say was used as recently as
last year to label them as soft on crime.

"I would be thrilled if people were seriously discussing repeal of the
Rockefeller drug laws, but they're not," said Charles Adler, a
criminal defense lawyer lobbying to change the laws on behalf of the
New York City Bar Association. "The issue of drugs is very important
for politicians, and there is no incentive for them to make these
changes."

Passed by the Legislature in 1973, the laws are the legacy of Gov.
Nelson Rockefeller's crackdown on drugs through severe mandatory
sentences. They require, for example, a 15-years-to-life sentence for
anyone convicted of selling two ounces of cocaine. Judges cannot
soften the punishments.

The aim of the laws was to reduce drug-related crime, and proponents
say they remain an effective tool for prosecutors. But critics contend
the laws are too harsh, have flooded prisons with low-level offenders
and have failed to stop the proliferation of drugs. And a statewide
poll released late last month showed that 69 percent of New Yorkers
favor giving judges sentencing discretion, which contradicts the
central tenet of the Rockefeller laws. The poll, with a margin of
error of plus or minus 3.3 percentage points, was conducted for the
New York Law Journal by the Quinnipiac College Polling Institute.

In the past year, the laws' 25th anniversary has led to a crescendo of
calls for overhauling them from inmate advocacy and civil rights
groups, religious leaders and even some Republican senators who voted
for them.

Their cause was aided, some advocates believe, by Kaye, who urged
earlier this year that appellate judges be allowed to reduce some
minimum sentences in which they find a "miscarriage of justice" and
that some nonviolent offenders should be sent to treatment programs
instead of prison, if the judge and prosecutor consent.

"It's very important that Judge Kaye has weighed into the struggle,"
said Assemb. Jeffrion Aubry (D-East Elmhurst), who has proposed
eliminating mandatory sentencing entirely.

Other advocates of change, however, dismiss Kaye's proposals as minor
because of the involvement of prosecutors, who tend to favor prison
over treatment.

"This plays beautifully into Republican hands," said one New York
judge who requested anonymity. "Are we better off with a bill that
requires prosecutors' consent? No. Maybe worse because now the
Republicans can walk away and say we did Rockefeller reform, and
you'll never see any other changes."

David Bookstaver, a spokesman for Kaye, who was appointed by
Democratic Gov. Mario Cuomo in 1993, said the judge's proposals were
"apolitical" and intended to spark debate.

Katherine Lapp, Pataki's commissioner of criminal justice, said Pataki
is considering a plan to change the laws "along the lines of Judge
Kaye's proposal." But she said the governor opposes any major
overhaul, which he thinks "would only make the crime rate go back up."

Four years ago, Pataki called for seriously softening the laws by
giving judges leeway to sentence some non-violent drug offenders to
treatment or community service rather than prison. But he backed away
almost immediately, never throwing the weight of his office behind an
overhaul and not pursuing any major changes in the years since.
Numerous political observers say Pataki won't approve any serious
changes now because he wants to court conservative voters if he runs
for national office. Lapp denied that.

"No one is playing politics, and no one is conspiring with anyone to
get off the hook," she said.

But Pataki's Republican colleagues who control the Senate have long
opposed revising the Rockefeller laws, and there is little indication
that sentiment has changed.

"Repeal? That's impossible. Could there be injustices? We're looking
at that, but I don't believe the laws are too harsh," said Sen. Dale
Volker (R- Depew), who chairs the Codes Committee, which would
consider any changes. "The level of violence in this state is down
dramatically, and we're not going to upset the apple cart if we can
help it."

The tough-on-crime imperative has also weakened support for
Rockefeller reform in the Democrat-dominated Assembly. Speaker Sheldon
Silver (D-Manhattan) last year proposed attaching a Rockefeller
revision to Jenna's Law, which ended parole for a broad class of
first-time felons.

But Silver withdrew the proposal, Democratic sources said, after
opposition from Pataki and the parents of Jenna Grieshaber, the
murdered Albany woman for whom the law was named. And because of the
political barrage Silver endured as a result, said one Democratic
lawmaker, "There's a bad taste left about the whole discussion, so I
think there is a gunshyness."

The lawmaker and other Democrats said that with Pataki and the Senate
Republicans hardening their positions, and Assembly Democrats
unwilling to take the lead, the most influential calls for significant
changes in the laws are coming from former Republican senators who
voted for them at the time.

A spokeswoman for Silver would say only: "We are reviewing Judge
Kaye's proposal and awaiting the governor's."

One of the Republican senators who voted for the original bills and is
campaigning to overhaul them, John Dunne of Garden City, acknowledged
the difficulties that lie ahead.

"We have no illusions," said Dunne, who is now a private attorney in
Albany. "This is going to be a very tough battle. But it's one worth
waging."