REFORM THE REFORMS

ABOUT a year ago, the New York State Legislature made a number of
revisions to the Rockefeller drug laws. The most significant changes
involved reducing sentences for nonviolent drug offenders, raising
the amount of drugs required for top-level possession charges and
allowing defendants serving a life term to apply for a reduced
sentence. The primary goal was to grant low-level drug dealers relief
from overly harsh sentences.

These measures were a step in the right direction, but unfortunately
they fail to take into account drug kingpins. As the new legislative
session begins this month, the priority should be to retain severe
sentencing for major drug dealers while providing more alternatives
to incarceration and more treatment options for low-level addicts and
small-time dealers.

To do this, we must provide judges with greater discretion in
determining which defendants should be placed in alternative
sentencing and treatment programs. We must pass legislation that
provides for more such programs. And we must enact a kingpin statute
to ensure that major and violent drug predators are sentenced
appropriately and cannot have their sentences reduced.

I was the judge who presided over many of New York City's most
serious drug cases in the 1980's and 90's. In a number of these
cases, judges, after a resentencing hearing mandated by the changes
to the Rockefeller drug laws, have recently reduced these sentences -
inappropriately so.

For example, I sentenced a violent drug dealer to more than 33 years
in prison. He had sold crack and heroin on the Lower East Side of
Manhattan for years and threatened to send the two lead detectives'
children back to them "in a box." He recently had his sentence
reduced by a judge who apparently based his decision on the
defendant's somewhat positive prison record. If I had not been
retired from the bench, I would have heard his request for
resentencing and been highly unlikely to have granted it.

On the other hand, many defendants should never have been sentenced
under the original draconian Rockefeller drug laws. For example, as
in many cases, I once placed a defendant, who was charged with
possession of cocaine and faced a sentence of 25 years to life, in a
rehabilitation program because it was his first and only offense and
the prosecutor consented. In the program, he took classes and
received counseling and job training for two years, followed by
another two years of supervision. Since then, he has become a
productive, law-abiding member of society.

Under the current laws, the prosecutor's consent is still required in
many cases before a defendant can be placed in a rehabilitation
program. But judicial discretion in sentencing is critical. Judges,
not prosecutors, must be allowed to determine which defendants are
eligible for alternatives to incarceration. Why judges? Because they
are not advocates but neutral arbiters who seek to impose an
appropriate penalty in each individual case.

There must be adequate, meaningful treatment programs from which a
court can choose. Many defendants in serious drug cases must be
required to plead guilty before being placed in such a program. The
administrators of the program must report regularly to the court. And
it is essential that the court continue to monitor the defendant, and
that the program provides support.

If the defendant completes the program successfully, the court should
have the discretion to reduce or dismiss the charges in some cases.
This is the ultimate incentive for treatment and rehabilitation.

Programs like Abraham House provide counseling, job training,
education and re-entry support in addition to substance abuse
treatment. Of those who have completed that program, less than 1
percent have returned to jail. And the best part of all this is that
by sending fewer people to jail, we can use the money saved to
finance similar programs, giving hope to those who need it.

But we cannot forget the other side of the drug industry - the
violent kingpins. A kingpin statute is a necessary component of any
drug-law reform. Sentences for kingpins shouldn't be reduced except
in rare instances. And if the original sentencing judge is
unavailable to consider a resentencing application, perhaps a panel
of three judges where the majority rules would be appropriate.

In most criminal justice legislation, too often politics prevents the
Senate and the Assembly from agreeing to meaningful reform. To make
passage of drug reform legislation more likely and to monitor its
effects, I propose a "sunset" clause, which would require periodic
assessments of these reforms and a review in three to five years to
evaluate their effectiveness and to determine if the legislation
should be renewed.

In our system there is a place for tough sentencing, a place for
leniency and a place for rehabilitation. We have reached one of our
goals in the reduction of the sentences for some drug offenders,
although not always the appropriate ones. But breaking the cycle of
recidivism and violence will continue to be a challenge.