DRUG REFORM: IT'S TIME

New York state's chief judge leads the way in addressing the inequities of
the Rockefeller laws

A fter 25 years, it's hard to find anyone who still believes in the
deterrent effect of the Rockefeller drug laws. While those laws were
intended to make New York state a national model of zero tolerance for drug
crime, they have instead become an occasion of too many miscarriages of
justice. Far from locking up drug kingpins and ridding the streets of
pushers, as they were intended to do, they have more often than not fallen
on low-level offenders who are serving Draconian sentences for nonviolent
crimes.

Now comes the chief judge of New York, Judith Kaye, with a welcome reform
proposal that would inject a measure of judicial discretion into these rigid
statutes. As the state's highest judicial officer, her views carry special
significance.

Specifically, she would empower the state's appellate judges to review and
reduce sentences when warranted. These cases would involve so-called A-1
offenses that cover the sale of two ounces, or the possession of four
ounces, of hard drugs. Under the Rockefeller laws, those convicted of A-1
offenses must serve a 15-year-to-life sentence. Under Judge Kaye's proposal,
the appellate court could reduce the minimum sentence to five years.

Just as encouraging, Judge Kaye is proposing that drug treatment play a
larger role in the process, as an alternative to incarceration. Under her
plan, a larger number of addicts charged with low-level offenses would be
eligible to postpone prosecution and prison by agreeing to complete a drug
treatment program. And in cases where the charges involve selling or
possessing minute quantities of drugs, the accused could be eligible for
drug treatment instead of prison, if both the prosecutor and trial judge
consent.

Besides providing for an alternative to harsh sentences, Judge Kaye's plan
also has the potential to relieve prison overcrowding if enough defendants
are found to be eligible for alternatives to incarceration. Some estimates
say as many as 10,000 low-level offenders might qualify each year to defer
prosecution and prison.

Yet there are drawbacks. While it's true that A-1 offenders are subject to
the harshest punishment mandated by the Rockefeller laws, the number of such
cases is low. Of more than 9,000 drug cases tried last year, only 45 were in
the A-1 category. Moreover, reducing sentences to five years might be too
harsh in some circumstances, but the appellate judges will have no way to
recommend speedier release.

Finally, there is the question of allowing prosecutors to decide who could
receive treatment instead of jail, and who would not. Prosecutors already
have wide discretion in determining which cases to try. Moreover, they often
strike plea deals with defendants who cooperate with police. Why, then,
enhance these considerable powers with a new authority to determine what
sentence an accused drug offender might face? That discretion should remain
the judge's alone.

Reservations aside, however, Judge Kaye's proposal is a welcome beginning
toward returning sanity, not to mention justice, to the drug war. Gov.
Pataki and the state Legislature should lend their support.