PANEL WANTS CHANGES TO DRUG PENALTIES

It Says Current Sentencing, Drug Treatment Laws Are
Confounding

ALBANY - New York should expand access to drug treatment and
alternatives to incarceration for nonviolent felony offenders,
establish a system of largely fixed prison terms, and adopt a
graduated system for parole violations, according to a state report
released last week.

The Commission on Sentencing Reform released its recommendations
after about 18 months of studying sentencing laws, which have not
undergone a thorough revision in more than 40 years. The state has an
"incredibly complex sentencing structure capable of confounding even
the most experienced practitioners," the report said.

"The commission's recommendations, if followed, will bring clarity to
our patchwork quilt of accumulated sentencing reforms, improve
(prisoner) reentry outcomes, and support more rational uses of our
prisons and our parole systems," Jeremy Travis, president of John
Jay College of Criminal Justice, said in a statement.

The Drug Policy Alliance blasted the commission's report, saying it
failed to propose any "substantive" changes to the Rockefeller-era
drug laws. The alliance's mission is to "reduce the harms of both
drug misuse and drug prohibition." Assembly Speaker Sheldon Silver,
D-Manhattan, also criticized the report.

The state should adopt a plan to provide the necessary treatment beds
and community-based resources and adopt a uniform statewide drug-
diversion model, the panel recommended. New York has successful
programs, such as prison diversion and the drug court system, but
they are not always available. Many nonviolent drug-addicted
offenders, particularly persons of color, don't have access to these
alternatives. About 3,000 people a year would meet the criteria for
diversion, the report said.

The commission didn't reach a unanimous decision on any one
drug-reform proposal, but most members agreed the best option would
be a judicial-diversion model. It would give judges discretion to
send first- and second-time nonviolent drug-addicted felony offenders
to treatment without consent from the district attorney.

Eighty-nine percent of individuals serving drug sentences in New York
are black and Hispanic, so people of color would benefit from giving
judges discretion to send offenders to treatment, said Denise
O'Donnell, chairwoman of the commission and Gov. David Paterson's
deputy secretary for public safety.

The commission also found that the likelihood of a prison sentence
for nonviolent drug offenders varied greatly in different counties.

The governor's office is working on legislation in response to the
commission's recommendations, O'Donnell said. Any proposal from
Paterson would have to be approved by the Legislature before taking
effect.

Monroe County District Attorney Michael Green, a commission member,
said a prosecutor should have to give consent too in cases of
judicial diversion for first- and second-time felony offenders.

"I feel that those decisions are very difficult decisions, and I
think they impact on public safety," he said.

Commissioners acknowledged that an expanded system would be expensive
at a time when the state faces an economic crisis. They did not
calculate an estimate.

Nearly 14,000 people are in state prison on drug offenses, about 22
percent of the total prison population, according to the Drug Policy
Alliance. The group has criticized the Rockefeller-era drug laws for
carrying prison terms it believes are too severe for nonviolent
offenders, and it doesn't think changes to the law in 2004 and 2005
went far enough.

"True overhaul of the Rockefeller Drug Laws requires the restoration
of judicial discretion in all drug cases, the expansion of
alternative-to-incarceration programs in the length of sentences for
all drug offenses, and retroactive sentencing relief for all
prisoners currently incarcerated under the Rockefeller Drug Laws,"
Gabriel Sayegh of the alliance said in a statement.

Silver said in a letter to the commission that state drug laws "have
failed to combat drug abuse or effectively impact the incidence of
violent crime across New York state." Instead, he said, they have
imprisoned tens of thousands of low-level nonviolent offenders, most
of whom are black and Hispanic.

New York should restore the discretion of judges not to mandate a
prison term when they believe it would be inappropriate, Silver
wrote. The state should eliminate mandatory minimum sentences for
low-level nonviolent offenders, and while district attorneys should
continue to play a key role in the process, they should not be able
to veto a judge's discretion on offenders, he said.

The 11-member commission also recommended:

* Adopting a largely "determinate," or fixed, sentencing system to
promote uniformity and fairness. The current system uses a hybrid of
determinate and "indeterminate" sentences, which impose a minimum and
maximum term and the Parole Board decides the release date.

* Using a system of graduated responses, such as curfews and
electronic monitoring, along with risk assessment to identify
parolees who pose the greatest risk to public safety.

* Expanding the effective and cost-efficient "shock incarceration"
and "merit time" initiatives, which reduce recidivism and reserve
prison space for the most dangerous offenders. Shock incarceration
involves a rigorous regiment of physical activity, discipline and
drug treatment in a military-like program.

* Improving the rights of crime victims and making it easier for
victims, judges and others to quickly learn the rights and benefits
that may be available. Expanding victims' rights training for
prosecutors and judges, and passing new laws to make it easier for
victims to collect restitution.

* Establishing a permanent sentencing commission.