SETTING KINGPINS FREE

IN 2004, the New York State Legislature finally enacted changes to
the draconian Rockefeller drug laws that imposed long mandatory
sentences on major and minor drug dealers. The goal of these changes
(later supplemented by further minor reform last year) was to prevent
first-time nonviolent offenders -- especially low-level dealers and
addicts selling to support their drug habits -- from serving
unreasonably lengthy jail sentences.

The new law, the Drug Law Reform Act, reduced penalties, eliminated
life sentences and afforded more plea-bargaining options, among other things.

While the changes themselves were less extensive than what many of us
had hoped for, it was a good beginning, especially since it gave
judges discretion to lower sentences that were unduly harsh for
low-level, nonviolent offenders. No one envisioned that the sentences
of drug kingpins would be reduced.

Now the first report that details at least some of the cases
resentenced under the new law must force us to re-examine these changes.

Unfortunately, according to the comprehensive report by Bridget
Brennan, New York City's special prosecutor for narcotics, of the 84
drug offenders who applied for resentencing under the new law, only
one was a first-time, low-level, nonviolent offender. Instead, drug
"kingpins," or major dealers and leaders of drug organizations,
received some of the biggest sentence reductions, as did some
defendants with felony records, drug suppliers and dealers with large
amounts of narcotics and weapons. And, sadly, almost no women
benefited from the new law.

Why has this happened? Because the new legislation allowed all
convicted high-level drug offenders to apply for resentencing. And
the majority of those offenders were significant drug dealers or had
violated the public trust.

I presided as a judge in the New York State Supreme Court on a number
of those cases. According to the law, all applicants for resentencing
were to be returned to their sentencing judge, which makes sense
since that judge would know the most about each case. But a number of
judges, like me, retired, and the cases were sent to other judges. As
a result, their resentencings were inconsistent and gave rise to some
shocking results.

The new statute itself creates a strong legislative preference, if
not a presumption, in favor of resentencing, and this is a problem.

Take Alejandro Lopez. Mr. Lopez was the leader of a large and violent
crack cocaine organization that infested the Lower East Side of New
York City for many years. He threatened the two lead detectives in
his case and their families. Mr. Lopez fled to Puerto Rico but was
ultimately returned to my court, where a jury convicted him of the
highest-level felony for possession of drugs and conspiracy. I
sentenced him to the maximum 33 1/3 years to life and a $3 million
fine (none of it ever paid). At a resentencing hearing before another
judge, Mr. Lopez was resentenced to only 17 years.

Miguelina Gilbert, who had been selling cocaine for at least two
years while on duty as a New York State parole officer, was convicted
of the highest-level felony for selling drugs. I sentenced her to 15
years to life. Another judge resentenced her to eight years, and she
was released from jail last year.

A jury convicted Luis Torres, a leader of a large Lower East Side
cocaine and heroin organization employing 30 "managers," of the
highest-level felony for possession of drugs, his fifth felony
conviction. I sentenced him to 50 years to life and a $1 million fine
(which he has never paid). His sentence has just been cut in half.

But the most disturbing news from the report is that fewer defendants
are seeking drug treatment as a sentencing option because they now
have less incentive to trade shorter prison sentences for long,
rigorous treatment programs. If that result continues to prove
accurate, one of the primary goals of the drug law reform will have failed.

The report proposes what many of us have long advocated: a drug
kingpin statute. We must separate those minor, nonviolent offenders
who don't deserve unfair sentences from violent drug dealers who
deserve every minute of the sentences they received. But we also need
to establish a procedure that ensures some consistency and
rationality in sentencing reform. And we need to provide the
additional resources promised by the Legislature for treatment,
education, job-training and re-entry programs for deserving offenders
in and out of prison.

Judicial discretion is critical but resentencing should be permitted
only in cases that involve insignificant amounts of drugs, no
violence, no drug organization, no weapons and no "employment" of
children under 16.

The important point is that drug law reform must continue, but in a
rational and intelligent manner. It must promote fairness for those
who deserve it, treat drug kingpins appropriately and encourage drug
treatment. Sadly, the new law that I had so much hope in has
succeeded in reducing sentences, but, it appears, primarily for those
who should remain incarcerated.