CHEAPER TO BE LENIENT

For three decades, the state's Rockefeller drug laws have mandated long
prison terms for fairly minor crimes. Now the budget crisis may give new
life to reform efforts.

On the scales of justice, it's a matter of ounces and grams.

For New York lawmakers, it may come down to dollars and cents.

The so-called Rockefeller drug laws, which are among the most stringent in
the nation, turned 30 last week. In recent years, legislators have not
reformed the laws, which impose strict sentences and deny judicial
discretion. But it now appears the state's budget crunch may succeed where
moral suasion did not.

The clamor for change is being sounded by a chorus of voices, including
Gov. George E. Pataki, Republicans and Democrats in the Legislature, the
Catholic Conference, grass-roots groups and even sponsors of the original laws.

"When you talk about cutting expenditures, it's the perfect place to cut
expenditures," said Assembly Speaker Sheldon Silver, D-Manhattan. He, like
many of his fellow Assembly members, favors restoring judicial sentencing
discretion, reducing long-term sentences and elevating treatment over
imprisonment for nonviolent drug offenders.

"There are anywhere from (5,000) to10,000 nonviolent people in prison who,
if you were successful in providing them with treatment in a treatment
modality, would save (the state) several hundred million dollars a year,"
Silver said.

The number of drug offenders in the state prison system far exceeds the
total number of prisoners when Gov. Nelson A. Rockefeller ushered in the
crime-fighting statutes on May 8, 1973. The laws were the first mandatory
minimums imposed on drug offenders in the nation.

State Sen. Dale M. Volker, R-Depew, credits the laws with making people
safer in their homes and on the streets.

"I don't think there is any question they were integral to bringing drug
dealing under control and lowering the crime rate," he said.

But what Rockefeller first proposed, including bounties on drug offenders
and mandatory 25-years-to-life sentences, were much tougher than what the
Legislature passed, Volker said. He suggested Rockefeller went overboard -
acting out of frustration by the spread of drugs in society and grief over
a nephew who had overdosed.

"He got fanatical. He felt you just had to stamp drugs out and the best way
to do it was to literally make people stay in jail forever," said Volker.

"Rockefeller told me personally he considered the toning down of the
initial drug laws the greatest defeat he suffered in the Legislature,"
Volker added. "He was pretty mad; he yelled at me and pushed me against the
wall one time. He also tapped my phone lines.

"My argument was that they were so draconian they just wouldn't work."

The potential savings

While there are widespread differences over what reforms are needed, no one
contests the potential savings.

Incarceration is estimated at $32,000 per convict annually, while the
average cost of residential drug treatment is about a third less, or
$21,000. Most drug-free outpatient care runs between $2,700 and $4,500 per
year, according to the Correctional Association of New York, a nonprofit
organization that does analysis and advocacy on prison-related issues.

The harshest provision of the Rockefeller drug laws requires that judges
impose minimum sentences of 15 years to life for people convicted of
possessing 4 ounces of cocaine or heroin or selling 2 ounces. The sentences
must be meted out without regard to the circumstances of the offense or the
individual's prior record.

About 550 inmates are currently serving convictions under such a felony
charge, according to Chauncey Parker, state director of criminal justice.

Though not part of the Rockefeller drug laws, second-time offenders - even
those involved with minuscule amounts of drugs - are also sentenced to
lengthy, mandatory sentences. Reformers want those laws changed, too.

Pataki has moved closer than in past years to the Assembly's position but
would put less emphasis on treatment over incarceration. He also wants any
reforms to be accompanied by enhanced penalties for violent drug dealers.

"With A-1 felonies based on weight (of the drug) rather than the background
of the offender, a low-level courier is in the same sentencing range as a
drug kingpin," Parker said.

The influential New York State District Attorneys Association, which is in
agreement with portions of Pataki's plan, has resisted reforms that tilt
more toward treatment at the expense of punishment. It also fears giving
judges too much latitude.

"We as prosecutors don't want to give up a lot of our discretion, because
we have a far better perspective on what's going on in the streets than the
judges, who live a kind of isolated existence," said Erie County District
Attorney Frank J. Clark.

Last year in New York State, 39 percent of new prison inmates were
convicted on drug offenses, according to the state Department of
Correctional Services. There were 18,300 drug offenders in a prison
population of 67,000; some 93 percent of the drug offenders were black or
Latino.

Marijuana was covered during the first four years of the laws before being
decriminalized. In 1979, the Legislature increased the amount of drugs
needed to trigger the 15-years-to-life sentence for sale and possession.

In 1988, concern over crack cocaine led to a lowering of the weight
threshold, allowing for the arrest and prosecution of people possessing
smaller amounts of the drug. The Rockefeller drug laws have remained
essentially unchanged since.

Eventually, most states came to adopt mandatory minimums for drug
offenders, as states wanted quick fixes to problems of crime and drugs,
according to Monica Pratt, spokeswoman of the national Families Against
Mandatory Minimums.

In March, rollbacks in Michigan's mandatory minimum sentencing - among the
nation's strictest - went into effect. Mandatory sentences were cut in
half, and parole eligibility was made retroactive.

The changes are expected to save the state $41 million this year, according
to the Michigan Department of Corrections.

Critics' arguments

Because most drug offenders are nonviolent street-level users or dealers,
critics argue they would be better served in a drug treatment program than
warehoused in prison. They also say that rather than catching the big-time
drug dealers - so-called drug kingpins - the law only corrals street-level
dealers.

"I've chronicled 1,000 cases, and I haven't come upon any Pablo Escobar,"
the onetime head of the Columbia drug cartel, said Randy Credico, director
of Mothers of New York's Disappeared, a New York City-based group that
favors repeal of the drug laws. "I find low-level people."

That's also the experience of Jesse Dunn.

Dunn grew up on Buffalo's East Side and has been in prison for almost 14
years for possession of 9 ounces of cocaine.

"They don't really have the big-time drug dealers in jail. You have small,
petty drug dealers in jail. I'm positive of that," said Dunn, 50. He's in a
work-release program at James Desiderio Fruit and Produce, where owner
Robert Mercurio praises his work habits and attitude.

"Big drug dealers are not in jail. They know what they are doing. They are
very professional," Dunn reiterated. "I come from the African-American
community, and there are no cocoa plants there."

Dunn said he thought the Rockefeller drug laws had failed to stem the tide
of drugs on the East Side.

"When I came back and rode the Genesee bus and looked at the community,
it's in worse shape than before I left. It's heartbreaking. There are more
crack addicts now, more people on drugs, than there were 14 years ago or 30
years ago. I know that for a fact.

"Longtime incarceration is not the key. Because if it was, it would have
worked."

James Muscoreil, of Wilson, also believes long prison terms are not the
answer. He has had 11 years to anguish over the incarceration of his son,
Kevin, now 33, in Wende Correctional Facility in Alden.

Kevin Muscoreil was convicted of possessing 4.8 ounces of cocaine. Addicted
at the time, he turned down a plea deal that could have reduced his minimum
sentence to six years in return for making drug buys undercover to catch
other offenders, James Muscoreil said.

Two years ago, Kevin Muscoreil learned that a man who brutally murdered his
grandmother in 1991 was mistakenly transferred to Wende - and had only a
slightly longer prison sentence than him.

His father said Kevin has made himself into a model prisoner who works in
the law library and has received numerous letters written on his behalf by
prison guards and others, including Volker, saying he deserved a second chance.

"Kevin was convicted of possession. He could have had 1,000 kilos or 4
ounces, and it's all the same. All this law has done is punish low-level
addicts," said James Muscoreil.

Volker believes Kevin Muscoreil will be released from jail this year,
either through reform legislation or a Christmas pardon by the governor.

The veteran Republican lawmaker said that while he supports some reforms,
he believes most of those put away for drugs are right where they belong -
and should stay there.

"The vast majority belong there and aren't getting out. They are some of
the biggest drug dealers in the country," Volker said.

Change in attitude

With opinion polls now showing widespread support among New Yorkers for
reform, it is providing cover from the "soft on crime" tag that has led
politicians to shy away from the issue.

The change in attitude is also allowing examination of the laws' impact in
a new light. Robert Gangi, executive director of the Correctional
Association of New York, who also leads the "Drop the Rock" Campaign, said
it's possible to track the impact of the Rockefeller drug laws on young
people, especially minority youths, by looking at allocation of resources.

From 1988 to 1998, Gangi said, the state increased prison spending by $761
million while decreasing spending on the state and city universities of New
York by $615 million.

"Instead of putting more resources for educating young people of color and
helping them gain access to the mainstream of society, we're reducing
funding and wasting significant resources on locking them up," he said.

Kathy Heffern, director of the Office of Church Ministry for the Catholic
Diocese of Buffalo, said the church's major concern with the laws was
social justice.

"The Rockefeller drug laws hurt families and communities because they
separate families for long periods of time, requiring incarceration for
small amounts of drugs. The other way it hurts families is because it does
little to rehabilitate the drug addict," Heffern said.

Clark, the district attorney who in 2002 served on a state judiciary panel
that looked into reforming the Rockefeller drug laws, agrees there are
undeniable problems with the statutes.

"We're not getting many people with 8 kilos, but we are getting a hell of a
lot of people with 5 ounces. The statutes don't make an adequate
recognition of that. Someone with 5 ounces of dope shouldn't go to jail for
15 years. I'm sorry but they shouldn't," Clark said.

Whether reform goes far enough for some or too far for others remains to be
seen. But Assemblyman Sam Hoyt, D-Buffalo, who was chairman of the
Assembly's Alcoholism and Drug Abuse Committee until earlier this year,
said that with a $12 billion state deficit, the timing may be better than
ever for reform.

"The phenomenon taking place in Albany is that finally you have all three
leaders saying that reform is absolutely critical," Hoyt said, referring to
Pataki, Silver and State Senate Majority Leader Joseph L. Bruno,
R-Brunswick. "The question is, can they put the budget battles behind them
and do what's right when it comes to reforming the Rockefeller drug laws?
The optimist in me says yes."