THE STATE SHOULD TARGET THE REAL DRUG KINGPINS

Ashley O'Donoghue is a low-level, nonviolent offender currently
serving a 7-to-21-year sentence for the sale of 2 1/2 ounces of
cocaine. In September 2003, the Oneida County district attorney
claimed that the 20-year-old was a major drug kingpin and needed to
face a life sentence under the Rockefeller Drug Laws.

Reacting to a commonly used scare tactic, O'Donoghue agreed to a plea
bargain. His A-1 felony, the highest possible felony, was reduced to a
B felony. Like magic, O'Donoghue was no longer a kingpin - that is, a
drug dealer distributing extraordinarily large quantities.

There are thousands of defendants just like O'Donoghue, whom
prosecutors claim are kingpins one day and then, through plea
negotiations, kingpins no more.

I went through the same experience in 1984 when I was arrested for the
sale of 4 ounces of cocaine. A Westchester assistant district attorney
claimed I was a major kingpin. But in the months that followed he
offered me a plea bargain of three years to life. He told me if I
refused the offer I would not see my 7-year-old daughter until she was
22 years old. This really frightened me, and I did not want to leave
my family alone.

I decided to go to trial and was convicted and sentenced to 15 years
to life. In 1997, after serving 12 years, I was freed by Gov. George
Pataki through executive clemency.

Recently, a report released by Bridget Brennan, New York City's
special narcotics prosecutor, proclaimed that kingpins and people
convicted of high-level drug offenses are being released under the new
Rockefeller Drug Law revisions. The report, titled "The Law of
Unintended Consequences," is a lopsided review of the Drug Law Reform
Act of 2004. The modest changes to the Rockefeller Drug Laws have
allowed approximately 1,000 people convicted of A-1 and A-2 drug
felonies to apply for resentencing. The controversial findings in the
report bolster Brennan's final conclusions: a clarion call for a
kingpin statute and opposition to any additional reforms to the
Rockefeller Drug Laws. Critics quickly questioned the validity of the
report, claiming that it contained skewed data and its creation was
politically motivated.

The report is questionable in many aspects, but I agree with Brennan
on one point: New York needs a kingpin statute. Allowing prosecutors
to define this term has meant that people like O'Donoghue and me are
kingpins one day but not the next. New York needs a clear and
reasonable kingpin statute that can be applied to real kingpins - bona
fide major traffickers - not people convicted of low-level offenses.
The kingpin statute that Brennan calls for is both unreasonable and
incompatible with justice, because it is so broad.

Brennan's report highlighted 84 drug cases handled by her office, with
65 applicants receiving judicial relief under the new law. Contrary to
Brennan's tabloidlike insinuation that the prison gates just opened
up, each prisoner seeking resentencing had to go through a lengthy
application process in order to see a judge for resentencing.

Right now there are almost 4,000 B-level felons serving time in New
York State for low-level, nonviolent drug offenses for small amounts
of drugs. Many of the defendants have drug-addiction problems. These
thousands of offenders are not classified as kingpins. So why would
Brennan actively oppose reforms to release them? It costs taxpayers
millions of dollars to incarcerate these people when community-based
treatment costs less and has proved more effective than incarceration
in treating addiction.

Brennan needs to be reminded that the governor, State Senate and
Assembly leaders agreed reforms were necessary to equally balance the
scales of justice in applying the law with the needs of protecting our
communities.

To cause a panic by releasing a questionable report is nothing more
than additional punishment for those incarcerated and an underhanded
political tactic to stop further needed reform. If Brennan wants a
kingpin statute, let's fashion one for real kingpins, not for the
low-level offenders.