Legal Aid Report Says Drug Reform Has Fallen Short

John Caher

12-19-2005


ALBANY — One year after Governor George E. Pataki signed legislation reforming the harsh Rockefeller Drug Laws, he boasted that "hundreds" of drug law convicts would be "immediately reunited with their families." That, according to a report issued by the Legal Aid Society, has not occurred.

The report says only about half of the eligible felons have been resentenced, and only about half of the resentenced have been released from prison.

Moreover, the report claims that while the law eliminated some of the harshest of the old mandatory sentences, it still required judges to sentence people to prison even though they thought treatment would be more effective. And the report complains that the new law has not provided additional money for treatment programs.

Under the law, 473 people convicted of the most serious drug crimes were permitted to apply to be resentenced under the terms of new determinate sentences. More than half, 270, were resentenced, but only 142 were released — approximately 25 percent of inmates serving A-1 felony sentences.

According to the report, prosecution opposition has been the primary reason for not resentencing or releasing prisoners in many cases. Release rates vary from county to county. In Brooklyn 50 percent of those eligible have been released. But in Manhattan only 30 percent have been freed and in the Rochester area 34 percent.

Observers note that in his successful re-election campaign this year, Manhattan District Attorney Robert Morgenthau stressed his support for Rockefeller Drug Law reform. Barbara Thompson, spokeswoman for the Manhattan district attorney, said the Morgenthau administration remains committed to reform.

"We believe in reform and in a significant proportion of cases we have agreed to resentencing," Ms. Thompson said. "Every request for resentencing requires an analysis on a case by case bases, and we make our recommendation to the court based on that analysis."

Ms. Thompson stressed that it is ultimately the judge's decision on whether to resentence a convict. She also said that Mr. Morgenthau has objected to resentencing petitions submitted by "significant traffickers and not first-time, non-violent addicts, for whom the reforms were intended."

Last year, after years of failed efforts, lawmakers and Mr. Pataki came together on a compromise plan to partially reform what has been deemed the harshest drug laws in the nation. The reform measure replaced indeterminate sentences with determinate terms; for most offenders, the minimum possible term is shorter than under the previous indeterminate sentences. It permits prisoners serving A-1 felony sentences to petition for lower sentences, but the judge still may impose a sentence of up to 20 years. Finally, the law signed by Mr. Pataki on Dec. 14, 2004, provides that expanded drug treatment programs are to be offered in prisons.

All sides agreed that the proposal was merely a first step in reforming the discredited Rockefeller Drug Laws. Mr. Pataki, Senate Majority Leader Joseph L. Bruno, R-Rensselaer County, and Assembly Speaker Sheldon Silver, D-Manhattan, all said the goal of reform was not met by the 2004 legislation and vowed to continue working toward greater modifications of the 30-year-old statutes. The report concluded that true reform has yet to arrive.

Judges' Hands 'Tied'

According to the Legal Aid Society, three-quarters of those who could have been released remain behind bars, treatment programs remain under-funded and under-utilized and judges continue to lack the discretion reform advocates argue is essential. The report can be found at www.drugpolicy.org/docUploads/DLRA_2005_Report.pdf

"Right now, because of mandatory minimums, the judges' hands are in effect tied," Gabriel Sayegh, a public policy analyst with the Drug Policy Alliance, an advocacy group, said in a news conference last week. "They are not allowed to sentence someone into a treatment program outside of prison that may be better for the defendant and better for the community."

William Gibney, an attorney with the Legal Aid Society and author of the report, said the reform effort has not achieved its potential, in large measure because judicial discretion remains severely restricted and prosecutors generally retain the upper hand in whether a drug felon should be sentenced more leniently or diverted to treatment. His report also criticized the state Department of Correctional Services, saying the agency "thwarted" the treatment component of the reform in a "questionable interpretation of the law."

For instance, according to the report, the law expanded eligibility for the Comprehensive Alcohol and Substance Abuse Treatment (CASAT) program to prisoners within 30 months of their earliest release date. But it said the state is not counting good-time credits and other factors that can reduce a sentence, meaning the program is not as widely available as it could be.

Additionally, the report claims, the Department of Correctional Services (DOCS) has failed to fully implement a provision that permits judges to sentence offenders directly into CASAT, an in-prison program.

"Rather than consider it as a judicial order, DOCS considers the judge's order of placement to be a recommendation subject to approval by DOCS," according to the report. "We have seen a number of prisoners ordered by a court to be placed into CASAT only to have them rejected by DOCS . . . DOCS is refusing to cede the gate-keeping function over this program to the court."

Law Not 'Draconian'

But the governor's top criminal justice advisor, Chauncey G. Parker, challenged many of the conclusions in Mr. Gibney's report.

"When people talk about the Rockefeller Drug Laws and refer to them as 'draconian,' I think what they were referring to was under our drug laws people could get life in prison for selling drugs," Mr. Parker said. "All of those people are now eligible to be resentenced. You can no longer get a life sentence for selling drugs. It applies retroactively and it applies proactively. But there is a process they have to go through, and that includes applying to the court."

Mr. Parker also disputed the perception that drug dealers in New York were routinely sentenced to life terms for minor offenses. He said the number of people in prison for selling drugs has decreased by approximately 40 percent over the last decade, and noted that on average those felons served 2-1/2 years in prison, had been arrested for four felonies and three misdemeanors.

Mr. Parker further disputed the claim that judges have insufficient discretion in drug cases. Although prosecutors do generally have the final say in whether a defendant is diverted to treatment, once a suspect is convicted the judge has a wide range of sentencing options, he said.

"For somebody who sells drugs, the sentencing range is one year to eight years in prison," Mr. Parker said. "How low do they want to go? There have got to be consequences for people who sell crack and heroin on our street corners. The range is one to eight years and it is up to the judge to pick the number. That is an awful lot of discretion."

On treatment, Mr. Parker said New York spends more per capita on drug treatment than any state in the nation, according to a Columbia University study. He said the administration has supported Brooklyn District Attorney Charles J. Hynes' heralded "Drug Treatment Alternative-to-Prison" (DTAP) program and has worked to expand it statewide. Under that program, drug offenders can be diverted to a prosecution-controlled treatment regimen.

— John Caher can be reached at jcaher@alm.com.