CRITICS ATTACK NEW YORK'S TOUGH DRUG LAWS

NEW YORK -- In the 25 years since New York enacted some of the toughest
drug laws in the country, drug dealers, prosecutors and defense lawyers
have increasingly found ways of working around the laws or using them in a
manner never intended, softening the goal of putting away hardened drug
traffickers, say many people involved in drug cases.

The laws, pushed through the Legislature in 1973 by Gov. Nelson
Rockefeller, have come under periodic attack by critics who say they have
clogged the state's prisons without making a dent in the problem of illegal
drugs. The echoes of that debate surfaced again last month, when Gov.
George Pataki commuted the prison sentences of three people serving long
mandatory sentences for nonviolent drug crimes.

Pataki granted similar clemencies in the past, and in 1995 he called for
changing the Rockefeller drug laws to allow more nonviolent offenders to
avoid long jail terms. But such proposals have gone nowhere, in part
because politicians are so wary of being labeled as soft on crime.

The Rockefeller laws, which require sentences as high as 15 years to life,
have packed the state's prisons with tens of thousands of drug felons and
added hundreds of millions of dollars to annual prison expenses. But rather
than imprison major drug dealers for long periods, some prosecutors and
defense lawyers say, the laws have instead hit more low-level couriers and
addicts selling to support their habits, because more of them are arrested.

Over the years, most dealers have learned how to avoid a long stretch in
prison by having an addict or even a child carry the drugs for them. As a
result, the mandatory minimums have often hit amateurs like Angela
Thompson, who was convicted at age 17 of selling two ounces of cocaine to
an undercover police officer at the behest of her drug-dealing uncle. She
served more than eight years of a 15-year minimum sentence before being
granted clemency by Pataki last month.

But prosecutors have also found that they can wield the laws as a powerful
weapon to force low-level or middle-level dealers who are arrested to trade
information implicating accomplices or higher-ups, in exchange for lesser
sentences.

"There is no question they've made prosecution easier," said Robert
Silbering, who retired last month after working since 1991 as New York
City's special narcotics prosecutor. "If you didn't have the Rockefeller
drug laws, you'd probably have a greater number of drug cases going to
trial, and you might have gridlock in the courts."

As a result, however, those with no useful information to trade or with
little savvy about manipulating the system seem to absorb the full brunt of
the law.

"The serf has often ended up with a far worse sentence than the boss,
because the serf didn't know anybody to give up," said Charles Adler, a
Manhattan defense lawyer who has pressed for alternative sentencing. He
recalled defending a client caught carrying narcotics for her boyfriend,
who was a professional drug dealer. The boyfriend cooperated and got
lifetime probation. She got 15 years in prison.

Defense lawyers have sometimes tried to avoid the laws' tough penalties by
steering clients into federal court, whenever a claim can be made for
federal jurisdiction, because the sentences there are relatively less
draconian.

Lloyd Epstein, a lawyer who practices in both federal and state courts,
gave a stark example of the discrepancy between sentences in the two
systems. He represented a Venezuelan courier who swallowed some
cocaine-filled condoms before flying to New York. The courier became ill
after leaving the airport and required emergency surgery to remove the
cocaine. After recovering, the smuggler faced a minimum of 15 years in a
New York prison, which Epstein plea-bargained down to six years under a
less punitive category of the law covering a smaller quantity of drugs.

"If he'd gotten sick inside the airport," Epstein said, "he could have
gotten only 18 months under federal law."

All 50 states have some form of mandatory sentences. New York's basic
Rockefeller drug law compels state judges to mete out a sentence ranging
from 15 years to life to anyone convicted of selling 2 ounces, or
possessing 4 ounces, of an illegal drug like heroin or cocaine. The law
sets shorter mandatory sentences for possession or sale of smaller amounts.

In fact, statistics suggest that few defendants receive the maximum
sentence because so many plead guilty to a lesser offense. During the first
nine months of 1997, only 585 of the 10,062 indictments returned in drug
felony cases were for felonies requiring a sentence of 15 years to life.

But that number includes minor figures who insist on going to trial and are
then convicted, leaving the judge with no alternative but to impose the
mandatory sentence. In one such earlier case, Anthony Papa, a radio
repairman, got 15 years to life for carrying 4.5 ounces of cocaine. He
served more than 11 years in Sing Sing before he was granted clemency by
Pataki and released last January.

A second law requires long prison terms for former inmates who served a
drug felony sentence and then commit another felony within 10 years. This
law has locked up more people than the first law, Adler said, because a
defendant who pleads guilty to a lesser crime in return for a lighter
sentence becomes a convicted felon and faces mandatory prison time for the
next offense.

As of a year ago, almost a third of New York state's nearly 70,000 inmates
were locked up for nonviolent drug crimes at an annual cost of more than
$600 million. They included 8,760 drug felons incarcerated at an annual
cost of more than $260 million under the first law, according to the
Correctional Association of New York, an advocacy group trying to improve
prison conditions. In addition, 13,075 drug offenders were incarcerated
under the second-felony offender law, at an annual cost of more than $390
million. (There is some overlap between the categories.)

Yet some police investigators and street researchers report that hard drugs
are more widely available in New York now than 25 years ago. One reason is
that a new pusher is always ready to take over the sales of an arrested
pusher. "What the Rockefeller laws set out to do has simply not been
accomplished," said Stephanie Herman, a drug researcher at the John Jay
College of Criminal Justice.

State Sen. Catherine Abate, D-Manhattan, said the Rockefeller law's
greatest weakness is that it "does not distinguish between a kingpin and a
drug mule." Last January, she joined state Sen. Dale Volker, a Republican,
in sponsoring legislation giving judges discretion to impose a lesser
sentence if the offense was confined to a single incident and unconnected
to broader drug trafficking. The bill has languished since.

Because locking up each inmate costs the state about $30,000 a year,
critics say it would be cheaper to put nonviolent addicts into treatment
programs.

Efforts to change the laws have fallen victim to state politics, say some
legislators and officials close to Pataki. Because Democrats who control
the Assembly are more interested in modifying the law, Republicans who
dominate the Senate would like to squeeze Democratic concessions on other
legislation. Some upstate Republicans also do not want the laws changed
because they have brought new prisons, and new jobs, to their economically
depressed constituencies.

But while politicians continue to debate the laws, almost everyone else has
learned to live with them. Epstein, who has represented hundreds of drug
defendants, said, "Dealers work around New York's laws by having a
low-level employee, often an addict, hold the drugs, so the dealer can walk
free."

Marc Mauer, director of the Sentencing Project, a prison reform group based
in Washington, said some dealers have children carry the drugs because they
are not subject to mandatory minimums.

One addict who is now in a drug treatment program said that when he could
no longer afford to buy crack cocaine, he jumped at the chance to get his
drugs for free. He took on the risky job of holding the stash of crack for
a Bronx street dealer, so if the police swooped in, the dealer could avoid
a long stretch in prison. "I ended up selling for them," he said. "I held
it."

District Attorney Richard Brown of Queens has viewed the Rockefeller drug
laws from several perspectives. As a lobbyist for New York City in Albany
when the laws were enacted, he warned that they would overwhelm the
prisons. Later as a judge, he bridled at restrictions on his ability to
impose sentences. Now as Queens district attorney, he said, the same laws
make it easier to combat drug trafficking. Despite his frustration as a
judge, he said, "I wonder where we'd be today if we didn't have the
Rockefeller drug laws. Perhaps we'd be worse off."

Even so, Brown said, "I think in the long run we would have been better off
if we took the money and used it for prevention, treatment and education."

Copyright 1998 The New York Times Company