you can also find a copy of a summary at their site or their drugtext mirro=
r

http://www.drugtext.nl/hrw/summaries/s.us973.html

Summary:

HUMAN RIGHTS WATCH
Publications=20
CRUEL AND USUAL Disproportionate Sentences for New York Drug Offenders

March 1997, Vol. 9, No. 2 (B)

...Are we really accomplishing the ends of justice when we mete out the
same kind of punishment to the insignificant street pusher as we would to
the heavy dealer of drugs?=20

=97Judge Ernest Signorelli, Suffolk County Court=20

New York has completely lost sight of the true nature of the crimes
involved....It is difficult to believe that the possession of an ounce of
cocaine or a...=93street sale=94 is a more dangerous or serious offense tha=
n
the rape of a tenyearold, the burning down of a building occupied by
people, or the killing of another human being while intending to cause him
serious injury.

=97Judge James L. Oakes, United States Court of Appeals for the Second Circ=
uit=20

SUMMARY

In the past decade, the U.S. Congress and many state legislatures have
established harsh criminal penalties for a wide range of drug offenses,
often using the vehicle of mandatory minimum prison sentences. As a
consequence, drug offenders in the United States face sentences that are
uniquely severe among constitutional democracies. Supporters insist that
severe mandatory sentences guarantee serious drug offenders are put behind
bars, offer prosecutors leverage for securing cooperation from drug
traffickers, deter prospective offenders, and enhance community safety and
wellbeing. Opponents point to data showing the laws have had little impact
on the demand for or the availability of drugs. Instead, they have resulted
in the unnecessary confinement of lowlevel nonviolent offenders (most of
whom are poor AfricanAmericans and Hispanics), a staggering growth in
prison populations, and a waste of public resources. Judges decry the
excessive and unfair sanctions that mandatory sentencing laws can require
in individual cases. Missing from the debate over drug sentencing laws,
however, has been a critique of their human rights impact.=20

Sentences for drug offenders in New York state are among the most punitive
in the country. A person convicted of a single sale of two ounces of
cocaine faces the same mandatory prison term as a murderer fifteen years to
life. Long prison sentences may be proportionate for traffickers who run
large and violent drug distribution enterprises. But in New York, the vast
majority of drug offenders sentenced to prison are nonviolent minor drug
dealers or persons only marginally involved in drug transactions people who
make $20 sales on the streets, onetime couriers carrying drugs for a small
fee, addicts who sell to finance their own habits. For these people, even a
few years of imprisonment can be disproportionately severe punishment that
violates the inherent dignity of persons, the right to be free of cruel and
degrading punishment, and the right to liberty. Such sentences contravene
the Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights, and the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment.=20

In this report, Human Rights Watch criticizes the human rights impact of
drug sentences in New York for lowlevel or marginal drug offenders. We do
not challenge the state=92s decision to use criminal sanctions in its effor=
t
to curtail drug abuse and drug trafficking. To an extent far greater than
other drug control policies, however, the use of the criminal law is
subject to important human rights constraints. Of particular significance
are the constraints on criminal sanctions. To be consistent with
internationally recognized human rights standards, criminal sanctions must
be both humane and proportional to the gravity of the offense. Conviction
of a crime is not license for the imposition of arbitrarily severe punishme=
nt.

Unfortunately, drug sentences in New York, as throughout the United States,
have been shaped by public concerns and political pressures that have been
indifferent to the need for proportionality. Many factors the persistence
of drug use and abuse, the deterioration of inner cities, the rise of
symbolic politics, racial undercurrents, a fear of crime, and an
unwillingness to tackle social inequalities, among others have encouraged
politicians and public officials to embrace inordinately tough sentences
for drug felonies. Those who question such sentences risk political
ridicule and ostracism.=20

In New York state, almost 30,000 people a year are indicted for drug
felonies, and 10,000 are sent to prison; approximately 90 percent of them
are blacks and Hispanics. In New York, as throughout the United States,
drug felonies are the single most significant factor underlying the
remarkable growth of the prison populations.

So many people are sent to prison in the United States that public
officials and the public have lost sight of just how serious a punishment
imprisonment is. Imprisoned individuals lose their liberty, autonomy and
the free exercise of most rights. They are deprived of their families,
friends and communities; their ability to work, play and express themselves
is severely restricted. In many prisons, the health and safety, as well as
the dignity and privacy, of prisoners are threatened by overcrowding,
deteriorating physical conditions and sanitation, and violence. Children
lose their parents to prison; family emotional and financial stability is
threatened. This is not a sanction that should be imposed intemperately or
needlessly.=20

In New York state, disproportionate sentences for minor drug offenders
arise from the severity and rigidity of the penal laws. In most cases, New
York drug felons sentenced to prison receive an indeterminate term which
includes a minimum and a maximum period of imprisonment. For each felony
class, the legislature has set the range of possible sentences. A judge
cannot impose a minimum sentence lower than that specified by statute,
regardless of the prior history, character and circumstances of the
individual offender, the nature of his or her role in the offense or the
threat posed to society. For example, a court must give any adult convicted
of possessing as little as four ounces or selling two ounces of cocaine a
minimum sentence of fifteen years; the maximum must be life. For a single
$10 sale of cocaine, the lowest sentence a court can impose is a term of
one to three years; higher sentences are permitted, up to eight and
onethird to twentyfive years. The sentences of drug felons who have prior
felony convictions are substantially increased by the mandatory sentencing
requirements under the second felony offender law. If, for example,
conviction of a $10 sale is a second felony, the lowest sentence the
defendant could receive is a term of fourandonehalf to nine years in
prison.=20

New York=92s laws are constructed in such a way as to almost guarantee
disproportionate sentences for many lowlevel or minor drug offenders. The
following aspects of the laws have a particularly egregious impact:

1) The classification of drug felonies is based solely on the amount of the
drug possessed or sold. People of vastly different roles and culpability
are thus swept together in the same felony class. For example, the most
serious felony class, Class A, can include the onetime courier carrying
drugs for a small fee as well as managers of major drug distribution
networks. Offenders who differ dramatically in terms of the wrong they have
done, their danger to the community and other relevant characteristics are
punished identically.=20

2) The possession or sale of relatively small amounts of controlled
substances is classified as a felony of equal gravity as murder or=20
rape and
is subject to the same sentences. We find no argument persuasive by which
every adult selling a couple of ounces of cocaine to other adults has
engaged in conduct as harmful or reprehensible, for sentencing purposes, as
taking the life or violating the physical integrity of another. Contrary to
the distorted image of drugs in the media, there is no inevitable, causal
relationship between drug use and serious harm to self or others. Most drug
users do not become addicts or act in ways that threaten themselves or
others. Most drug users do not engage in nondrug crimes. Individuals who
use violence to control drug markets or who do engage in nondrug crimes to
finance their drug purchases should receive criminal sanctions commensurate
with that conduct.

3) Neither the drug nor secondfelonyoffender laws permit judges to
exercise their traditional function of ensuring fair sentences tailored to
the specific conduct and culpability of each defendant. Unable to evaluate
each case on its merits, judges are placed in a legal straitjacket, forced
to impose sentences they know to be unjust. The courts are also restricted
in their ability to divert nonviolent offenders to substance abuse
treatment programs, or to impose constructive intermediate sanctions that
are fair, safe, and effective alternatives to prison.

4) Although one rationale for reducing judicial discretion is to minimize
sentencing disparities (different sanctions for the same offenses), close
disparities continue through the exercise of prosecutorial discretion.
Prosecutors=92 charging and plea bargaining decisions now set sentences.
Unlike sentences set by judges, however, prosecutors=92 decisions are
unreviewable, and the criminal justice system lacks mechanisms to hold
prosecutors accountable for their choices. In a regime of harsh mandatory
sentences, moreover, prosecutors have even greater leverage in plea
bargaining than in most criminal cases: the stark disparity between harsh
mandatory sentences and the terms prosecutors can offer in plea bargaining
leaves defendants little choice but to give up their right to trial and to
plead guilty.

In applying the principle of proportionality to drug offenses, it is
important to remember that it is not the seriousness of drug abuse and drug
trafficking which is at issue. Rather the sanction for a drug offense must
be commensurate with the conduct of the individual defendant before the
court. The severity of the punishment must be tailored to the actions and
their consequences for which the individual is personally responsible.
Imprisonment is an inherently severe sentence; indeed, it is the most
coercive and drastic noncapital sanction imposed by constitutional
democracies. Prison sentences are, accordingly, best reserved for people
who seriously and wrongfully have injured or sought to injure the legally
recognized interests of others through unlawful violence.=20

Ignored in New York=92s drug sentences is the fact that the harm caused by
the average minor drug offender (such as the street seller of cocaine) is
minimal. The social and public health consequences of drugs are the result
of an incalculable number of actions over the years by hundreds of
thousands of individuals. The contribution of any single minor offender to
the overall harm arising from this complex social phenomenon is necessarily
negligible. It is unjust to penalize any individual severely for public
harms to which his or her individual contribution is so slight. Yet that is
what happens in all too many cases.

Some supporters of harsh drug laws argue that severe punishment is
justified to deter drug offenses. They believe long prison sentences
benefit society because (in theory) they create a disincentive for other
potential offenders to break the law. In fact, the laws have had little
deterrent impact. But even if they had been effective, the goal of
deterrence cannot override the imperative of proportionality between
offending conduct and punishment. Absent the restraint of proportionality,
egregiously punitive sanctions could be placed on trivial offenses, such as
overtime parking, and justified as effective deterrents. In short, whatever
the purpose of a criminal sanction to serve as retribution for the wrong
the defendant has done, for example, or to serve as a warning to others its
severity must bear a reasonable relationship with what the defendant
actually did.

It may be that disproportionate sentences for drug crimes have been
tolerated because convicted drug felons are primarily members of racial and
ethnic minorities. As throughout the United States, most of the people
arrested, prosecuted and convicted of drug crimes in New York are
nonwhite. Blacks and Hispanics represent over 85 percent of people
indicted for drug felonies and 94 percent of drug felons sent to prison.
Whites constitute only 5.3 percent of the total population of drug felons
currently in prison in New York; blacks and Hispanics constitute 94.2
percent. A predominantly white state legislature has been insensitive to
the rights and needs of people from communities different from their own.
While asserting concern for the harm drugs cause in poor communities,
public officials have ignored the hardship to individuals and their
families from unnecessary years of imprisonment. This lack of
identification with the vast majority of those sentenced as drug offenders
also contributes to the legislature=92s failure to provide anywhere near th=
e
funding required to meet the demand for drug treatment programs, despite
the greater expense of incarceration. There are only 71,000 publicly funded
drug treatment slots; estimates of the number of people in New York needing
drug treatment range from 246,000 to 860,000.=20

Egregious drug sentences have also persisted because the courts have not
upheld federal and state constitutional prohibitions on cruel and unusual
punishment. Although these prohibitions extend to excessive sentences, few
drug offenders have succeeded in having disproportionately harsh sentences
overturned as unconstitutional. The courts have failed to exercise their
role of safeguarding individuals from abuses decreed by political
majorities. Instead, they have deferred to legislatively dictated
sentences, however draconian. New York=92s highest court, for example,
recently upheld against constitutional challenge a sentence of fifteen
years to life imposed on a seventeenyearold girl convicted of a single
sale of two ounces of cocaine.

Such astonishingly punitive sentences have imposed a high cost in human
suffering, but have accomplished little. Recognition is widespread that
mandatory sentencing laws have failed to achieve their drug control
objectives. New York=92s highest court has pointed out that the =93harsh
mandatory treatment of drug offenders...has failed to deter drug
trafficking or to control the epidemic of drug abuse in society, and has
resulted in the incarceration of many offenders whose crimes arose out of
their own addiction and for whom the costs of imprisonment would have been
better spent on treatment and rehabilitation.=94 Throughout the criminal
justice system, articulate voices are raised calling for the state to make
substance abuse treatment available for all who need it. As Paul Shechtman,
former Commissioner of the Division of Criminal Justice Services and former
Director of Criminal Justice, has stated, many nonviolent offenders =93need
treatment more than lengthy incarceration.=94 We note that a key objective =
of
the just released The National Drug Control Strategy is to =93[d]evelop,
refine, and implement effective rehabilitation programs including graduated
sanctions, supervised release and treatment for drugabusing offenders and
accused persons at all stages within the criminal justice system.=94=20

RECOMMENDATIONS

Human Rights Watch does not minimize the challenges posed to the people of
New York by drug abuse and drug trafficking. But concern about drugs cannot
excuse the need for scrupulous adherence to fundamental rights. Drug
control strategies, including the nature and enforcement of criminal laws,
should not sacrifice the rights of individual offenders in an effort to
protect the interests of society at large. Severe sanctions such as years
in prison should be reserved for serious criminals, not minor nonviolent
drug law offenders We urge New York to reform the state=92s laws to ensure
proportionate sentences in drug cases.

We recommend that the state:

Limit lengthy penalties to cases in which specific, serious harm is caused
or threatened, e.g., in the case of drug sales to children, or in which the
defendants have upperlevel roles in drug distribution organizations.=20

Eliminate mandatory minimum sentences for nonviolent drug offenders who do
not have major roles in drug distribution operations. Offenders who differ
in terms of conduct, danger to the community, culpability and other ways
relevant to the purposes of sentencing should not be treated identically.=
=20

Revise the classification of drug offenses to correct the current exclusive
reliance on the amount of the drug involved; other relevant factors should
be reflected in sentencing calculations.

Grant the judiciary the authority to depart from statutory sentencing
ranges when necessary to serve the interests of justice.=20

Increase the availability and use of alternative sanctions for nonviolent
drug offenders who are not significant figures in a drug distribution
business, and increase the availability of substance abuse treatment on
demand.=20

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