Just Say Maybe?

POLITICIANS POSTURE BUT ROCKEFELLER REFORMS STILL ELUSIVE

Despite quite a few sound bites and photo ops purporting to be
movement on the reform of New York's infamous Rockefeller drug laws,
nothing has happened. For many years, Governor George Pataki has
advocated for reform. This year, the state assembly passed legislation
for reform. The state senate agrees that reform is needed; yet another
legislative session has passed without any concrete action. With
statewide elections right around the corner, this inaction may have
created a vulnerability for Democratic gubernatorial candidate Andrew
Cuomo to willingly exploit.

"The governor may be trying to posture on this issue," said Robert
Gangi, executive director of the Correctional Association of New York,
a watchdog group central to the "Drop the Rock" campaign, "[saying]
that I'm calling for reform, I put reform proposals on the table, but
the other side balked, and he may think that that may be sufficient
for him politically or he may begin to get more worried if he doesn't
deliver on this issue [that] he'll be vulnerable during the election,
particularly in certain communities where he wants some inroads."

On August 5, that open flank was attacked when Cuomo called for repeal
of the controversial laws. Cuomo has effectively upped the ante for
state pols. The pressure is now on for Pataki to act and for the other
Democratic candidate for governor, Carl McCall, to strengthen his position.

"Governor Pataki has said that he wants to reform the Rockefeller drug
laws, but he has failed to get it done," said Cuomo. "We need
comprehensive reform now to restore true fairness and uniformity to
criminal sentencing, and to make the punishment truly fit the crime.
Only by repealing the Rockefeller drug laws, restoring judicial
discretion, and re-emphasizing treatment can we accomplish this goal."

Pataki has been proposing reform since he first took office in January
1995. The intelligentsia applauded him for taking up the issue after a
short time in office. Seven years later, nothing has been
accomplished. "The governor, he's talking the talk," said Gangi, "but
he hasn't been able to walk the walk. He has not delivered significant
reform on the drug laws despite all this talk about how it's long past
due."

The Rockefeller drug laws, enacted in 1973 by former governor Nelson
Rockefeller, have long been considered excessively harsh and a failure
in their original intent to deter the sale and use of illegal
substances. Instead, the legislation's only overwhelming success has
been in escalating incarceration rates. Since its enactment, the New
York State prison population has jumped from 12,500 total prisoners in
1973 to 19,000 individuals currently incarcerated on drug offenses
alone. Over 90 percent of those inmates are black and Latino. Even
some of the bill's original sponsors, like former state senators John
R. Dunne and H. Douglas Barclay, are among the leading advocates for
reform.

"When the laws were created over 30 years ago, they were particularly
punitive," said Lillian Rodriguez, vice president of the Hispanic
Federation, a collective of Latino organizations that has actively
advocated for Rockefeller reform. "You have certain individuals that
have been in prison serving terms and have been serving more time than
people who have been put away for murder because the laws are so strict."

"We know that it has disproportionately affected communities of
color," continued Rodriguez, "particularly blacks and Hispanics, and
it's destroyed a lot of families over the years with
sentencing."

The main source of contention is the law's mandatory sentencing
scheme, which imposes penalties that range from one-to-three-years to
15-years-to-life, depending primarily on the weight of the drugs
possessed or sold. The legislation requires a judge to impose a
sentence of 15-years-to-life on anyone convicted of selling two or
more ounces or possessing four or more ounces of illegal drugs and
lesser sentences for selling or possessing smaller amounts. Mandatory
limits effectively eliminate judicial discretion in sentencing.

Earlier this year, both the governor and the state assembly put bills
on the table. The assembly's version is seen as too radical a change
by conservatives while the governor's is viewed as too little by
anti-Rockefeller advocates.

"On the governor's end," said Gangi, "he clearly wants to wrap himself
in the mantle of drug law reform, particularly in an election year,
but at the same time he doesn't want to step too far out of the
district attorney's camp because they represent an important
constituency for him."

The fiercest opposition to change-especially from the New York State
District Attorneys Association (NYSDAA)-is over returning sentencing
power to the judges. According to the prosecutors, changing the drug
laws would strip prosecutors of the tools, namely heavy sentences,
that they have used for years to urge cooperation from criminals,
induce addicts to take treatment, and lower crime rates overall. They
say that there is no groundswell of support for reducing sentences,
that judges already have great sentencing discretion, and that the
harsher aspects of mandatory sentencing are not as widespread as
activists claim.

"There is no evidence that the Rockefeller drug laws are effective in
fighting drug abuse or drug-related crime," says Gangi. Randy Credico,
a spokesperson for the highly vocal anti-Rockefeller group Mothers of
the Disappeared, agreed that sentencing discretion should be returned
to judges. "The prosecutors are elected to prosecute. Judges are
elected to look at facts and decide sentencing, and a jury is
impaneled to decide guilt. Otherwise you could just use a computer up
there; you wouldn't need a judge."

According to activists, the current reform proposals are unacceptable
because they exclude groups of drug offenders from judicial
diversion-court-ordered treatment instead of prison-and the
limitations set on such diversions. There are also issues concerning
judicial discretion, the role of prosecutors, and retroactive
application. Advocacy groups have also been highly critical of reforms
that significantly address only a limited class of offenses in terms
of the revision of sentencing parameters and that do nothing about
others.

Credico related the story of a woman who is featured in Mothers of the
Disappeared's new ad campaign and was in their meetings with the
governor, who has two family members in jail under the sentencing
laws. Their cases vividly illustrate the shortcomings of the current
proposals.

"Her two sons were in prison, one is still there, and her nephew is in
prison," said Credico. "Her nephew is serving 15-to-life for a sale of
over two ounces of cocaine. Her son is doing 15-to-30 for a $20 bag.
Now the difference here is, the governor's bill would help out the guy
doing 15-to-life, her nephew, but it wouldn't help her son. So the
nephew could conceivably get out immediately while her son would have
to continue to do the minimum of his sentence."

"We met with them," said Credico of talks with the governor and other
politicians. "They gave us an offer that we refused and [Pataki]
certainly doesn't want to be hammered in terms of the hardship horror
stories that keep coming out."

When questioned about the lack of legislative activity, Charles
Carrier, a spokesperson for Assembly Speaker Sheldon Silver, told the
Voice: "We've been very public over the last several months in trying
to do as much as we could to get it accomplished this year, because
our feeling was this was a real opportunity this year to try to reach
an agreement on this subject. . . . I just know that the mandatory
sentencing, judicial discretion, the role of the district attorneys,
these are all parts of the discussion."

After the assembly passed a strong reform bill in mid June,
disagreements with the governor and the senate on a compromise bill
led to the current stalemate. However, there is speculation that the
entire situation may be smoke-and-mirror "politricks" and some
question whether or not some lawmakers are truly engaged in fair play.

"The senate is more conservative than the assembly," explained
Credico. "The governor's bill doesn't go far enough. If it went any
further, I suppose the senate could knock it down and not bring it up
on the floor.

"Pretty much [Senate Majority Leader] Joe Bruno gives the governor
what he wants. So the governor can't hide behind that. There's a lot
of talk about that the governor would tell Bruno, 'Look, we're going
to come up with this great package; don't bring it up on the senate
floor and I could say that I tried.' And so the governor is aware that
people think that he might do that already."

Rodriguez has a different perspective. "In our conversations with the
governor's office and the assembly," said Rodriguez, "I think that
there's some serious intent to make something happen to reform the
Rockefeller drug laws, but people need to come closer to the middle
and there needs to be more negotiation and it's unfortunate that we
haven't had that yet because it's just time for it."

However, with Cuomo's new initiative, going through the motions of
reform without any significant movement may no longer suffice. "He's
the first statewide mainstream politician who has urged repeal of the
laws rather than some kind of reform," said Gangi of Cuomo. "When you
have a credible and mainstream candidate for governor calling for
repeal, it's important for two reasons. It undermines the argument
that repeal is an unrealistic position and also it puts some pressure
on McCall and the governor to take stronger positions for reform."

For the most part, aside from scattered allusions, until Cuomo's call
for repeal, the drug laws were marginalized as a campaign issue with
the most significant items coming from columnists and editorials.
Considering that statewide elections are right around the corner, the
lack of focus on the landmark issue is yet another trait indicative of
the bizarre nature of New York politics. With these recent
developments, it's reasonable to speculate that the whispers of
negotiations will increase a few decibels and legislation may actually
materialize.