IN ALBANY, A TREND TO SOFTEN, BUT NOT EVISCERATE, DRUG LAWS

ALBANY, June 17 - Neither of the two competing bills intended to soften New
York's drug laws tampers with the fundamental legal structure that critics
say has led to injustices.

Both still include mandatory sentences for drug offenses, and both still
base the charges on the weight of drugs involved rather than the role of
the defendant.

That means that no matter what compromise is worked out between the
Republican and Democratic versions of the bill, the state's district
attorneys, who generally have resisted changing the current laws, will have
won a significant victory.

The Assembly's Democratic majority passed its version of the bill this
evening, 81 to 60, but still remained at loggerheads with Gov. George E.
Pataki and the Senate's Republican majority over several small but
important details.

Legislative aides on all sides said hopes were fading fast that a
compromise would be reached before the official end of session on Thursday.
The Legislature could reconvene later in the year, however, if the leaders
reach an agreement.

The debate has pitted liberal Democrats and minority lawmakers against
law-and-order Republicans and prosecutors. At heart, it is about whether
judges or prosecutors should have the final say about which defendants are
offered addiction treatment rather than jail.

But it is also a debate with racial undercurrents. Nine in 10 of the 19,000
men and women serving mandatory sentences for drug offenses are black or
Latino. Black lawmakers, like their constituents, say that is because the
mostly white police forces around the state have concentrated
drug-enforcement efforts in minority neighborhoods while turning a blind
eye to white users and dealers.

These lawmakers and their allies in the liberal wing of the Democratic
Party would like to return sentencing decisions to judges. Under the
current law, a judge must sentence addicts who act as couriers for drug
dealers to 15 years to life in prison if they are arrested carrying four
ounces or more of narcotics for someone else.

"The bottom line is to return discretion to the judges," said Assemblyman
Keith Wright, a Harlem Democrat.

The prosecutors see things differently. For starters, they say relatively
few people - 20 to 40 a year - are convicted of the most serious felony
drug charge, known as A1, and a tiny minority of those are merely couriers
or other bit players in a drug ring. Advocates seeking the repeal of the
drug laws invariably hold these cases up as examples of their unfairness.

The district attorneys maintain that at least two-thirds of the people sent
to prison on drug charges are dealers who have at least two convictions.
Most of them make plea bargains rather than stand trial, and most serve
relatively short sentences. In 2001, first-time drug offenders released
from prison had served an average of 27 months, while repeat offenders had
served an average of 39 months, state officials say.

"There is a myth that the prisons are full of hapless drug users, when the
statistics overwhelmingly establish the people in prison are second- and
third-felony offenders - they are drug dealers," Paul A. Clyne, the Albany
County district attorney, said.

The prosecutors also note that three-quarters of first-time drug offenders
serve no time at all in prison, but are given probationary sentences or
sent to special drug courts, where judges order them into treatment clinics.

Of the quarter who do go to prison, those charged with the A1 felony
usually plead guilty to the lesser A2 charge, which carries a
three-years-to-life sentence. In practice, such defendants almost never
serve a life sentence, but are paroled, often before the three years are
up. "We know that almost nobody does life on these things," said the
Steuben County district attorney, John C. Tunney, president of the New York
State District Attorneys Association.

Prosecutors also say they should be the gatekeepers to treatment because
they know more about the defendants than the judges do. Last year, they
diverted about 2,400 of the 14,000 people indicted on drug charges into
treatment programs. About half of those were repeat offenders who would
have gotten mandatory prison terms had prosecutors not offered rehabilitation.

Governor Pataki's bill, which the Republican-led Senate passed this week,
would in essence expand this program by allowing specially trained judges
to overrule prosecutors' decisions under certain circumstances. Prosecutors
could appeal those decisions to higher courts. The administration says
about 42 percent of the 6,600 people imprisoned last year for drug
convictions could have asked a judge to send them to treatment instead
under Mr. Pataki's bill.

Mr. Pataki has also proposed keeping mandatory sentences but scrapping the
sentencing structure that metes out a range of time to serve and letting a
parole board decide when to free an inmate. For first-time A1 felons, for
instance, Mr. Pataki's plan would let judges decide on a sentence of 10 to
20 years. There would be no chance of parole, though some time - about
two-sevenths of a sentence - could be shaved off for good behavior. The
specter of life in prison would disappear.

In the Assembly bill, Democrats accepted the governor's idea of letting
judges overrule prosecutors, though they would give judges much greater
latitude. They also want to keep the less-defined sentence structure, in
which a parole board can free all but the top category of felons.

For their part, the prosecutors say they oppose both bills but would
support reducing sentences just for the A1 felony, the category everyone
agrees produces the most unfair sentences. They also want more resources
for drug treatment clinics, since many upstate counties do not have them.

Lobbyists and legislative aides familiar with the negotiations say the
differences between the bills are not insurmountable in an election year.
The governor would like to deliver drug law reforms to persuade more
liberals and minorities to support his candidacy. Pataki aides have
suggested that the governor may be willing to drop some of his more
controversial provisions to reach an agreement. So far, however, talks
Democrats have gone nowhere.

"We are ready to sit down anytime, around the clock, to get this thing
done," the governor's spokesman, Michael McKeon, said.

Still, both bills disappoint liberal advocates who believe the mandatory
sentences are still too long and that drug treatment could rehabilitate
many of those prosecutors describe as hard-core criminals. Some complain
that defendants could end up serving longer sentences under Mr. Pataki's
sentencing system if they get an unsympathetic judge. In their view, the
governor's plan also disqualifies too many defendants from treatment,
including anyone with more than one felony arrest.

But the biggest flaw some advocates see in the governor's bill is that the
law retains, for the most part, a system in which the weight of the drugs
matters more than the role of the defendant. The governor's plan would give
stiffer sentences to traffickers who use guns, sell near parks or lead a
drug-selling organization of three or more people. But the weight of the
drugs found would still determine the charge and the sentences would still
be mandatory.

"A critical point to be made is both bills are deficient," said Bob Gangi,
director of the Correctional Association of New York, an advocacy group for
prisoners and the accused. "They both exclude broad categories of drug
offenders from ever being considered for diversion to treatment."