Thursday, February 7, 2008

The Rockefeller Drug Laws Should Be Repealed

By Jeff Deskovic

The Rockefeller Drug Law is the term used to refer to the statutes dealing with the sale and possession of narcotic drugs in the New York State Penal Code. The statutes are named for Nelson Rockefeller, who was the state’s governor at the time they were enacted.
The bill was signed into law on May 8, 1973. Under the Rockefeller law, the penalty for possessing four ounces, or more, of the same narcotic substance was a mandatory minimum of 15 years to life, and a maximum of 25 years to life in prison. The same penalty applied
to those found to have sold two ounces or more of heroin, morphine, opium, cocaine, or marijuana.

The law, with respect to marijuana, was repealed in 1979, under Governor Carey. On August 30, 2005, then-Gov. Pataki signed a partial repeal of the law. Some 400 prisoners, facing the most severe sentences, up to life, were permitted to seek retroactive sentence cuts. But thousands of prisoners doing lesser, but still severe, sentences were not explicitly granted that right. Many of the classes of people that were intended to be helped by those that had been pushing for reform had not been helped. “We took two steps forward on Rockefeller reform last December, and we’re taking another step forward today, but we have another good 10 steps to go,” said Ethan Nadelmann, the
Executive Director of the Drug Policy Alliance, a not-for-profit group focused on changing national drug policy.

There have been many criticisms of the Rockefeller Law, from all angles, and from many diverse groups. I will endeavor to review some of them:

• Many law enforcement agencies, as well as citizens groups from The Rockefeller Drug Laws Should Be Repealed all sides of the political and ideological spectrum have stated that the sentences meted out are disproportionate to the crimes, in that sentences under
Rockefeller are often more than that for violent crimes, up to and sometimes including murder.

• Many of the more than 150,000 prison sentences handed down to drug offenders since the enactment of the Rockefeller Statutes have been so disproportionate to the crime; mostly retail street sales and other minor drug offenses, that they violate basic principles
of justice and fairness.

• The penalties apply without regard to the circumstances of the offense or the individual's character or background.
Whether the person is a first time or repeat offender, for instance, is irrelevant. Of all drug offenders sent to New York State prisons in 2000, nearly 80% were never convicted of a violent felony.

• The main criterion for guilt under the Rockefeller Laws is not the offender’s role in narcotics transactions, but the amount of drugs in their possession at the time of arrest.

• Drug kingpins know about this law and are rarely foolish enough to be caught carrying narcotics. They hire other people to transport drugs for them. These couriers are often caught with drugs in their possession, charged with serious felonies, and given long mandatory prison sentences.

• The State’s commitment to equal protection of the law and racial equality comes into question, given that ninety-four percent of the people sentenced under Rockefeller are Black or Hispanic. Black men are admitted to prison on drug charges at eleven times the rate of White men. Most drug arrests occur in lower income, primarily minority, urban, areas, even though Whites use drugs at approximately the same rate as Blacks. The Rockefeller Laws have filled prisons with non-violent, minor offenders, draining resources from other programs and services, such as drug treatment and education.

• In 2004, nearly 35% of the people sent to state prison in New York were drug offenders, compared to only 11% in 1980.

• Over 50% of the drug offenders in New York State prisons were convicted of selling or possessing only small
quantities.

• It cost the state over $1.7 billion to construct new prisons to house drug offenders. The annual operating expense for confining drug offenders comes to about $500 million per year.

• From 1988 to 1998, the state increased annual prison spending by $761 million. During that same period, the state decreased annual spending on the State and City Universities of New York by approximately $615 million.

Often, seeing the flesh and blood, up-close and personal impact of laws and policies not only brings home the human costs of such laws, decisions, policies and practices, but it also illuminates the wrong and right side of issues. The following account, by Anthony Papa in The Gotham Gazette Sept. 2005, is a good illustration: “I sat in the courtroom with a middle-aged mother who had been arrested in 1999 with a few ounces of cocaine. Though it was a first offense, she was sentenced to 17 years to- life. She was a drug mule, according to the facts of the record. But the Queens District Attorney’s Office twisted and manipulated the facts to make her look like she was a kingpin who had abused
her young daughter because the child was present in the room with a package of cocaine. That daughter, now a traumatized teen, has been placed in a foster home. She lost her mother and her childhood. She was in the courtroom praying for her mother along with two nuns with whom she now lives.

The judge and Queens District Attorney Richard Brown agreed to reduce her mother’s sentence to nine years-to life, leaving her to serve an additional five more years. The daughter left the courtroom in tears.” Papa, the author of the book 15 to Life: How I Painted
My Way To Freedom, understood all too well, from a personal perspective, what he was writing. He had enjoyed a middle-class life as an owner of an auto repair and radio business prior to his arrest.

He had been a family man and never been in trouble with the law, until a member of Papa’s bowling team offered him “some easy money” for delivering an envelope of cocaine to the City of Mount Vernon, New York. The courier who gave him the envelope was an undercover
police informant. And, when Papa delivered the 4.5 ounces of coke, he was promptly arrested and sentenced to 15 years-to-life, of which he served 12 years before getting clemency.

The group Human Rights Watch has issued the following statement: “For thirty years, the Rockefeller Drug Laws have curtailed judicial discretion and mandated prison sentences for almost all drug offenses. Excessively long and unnecessary prison sentences have
filled New York’s expensive prisons with low level drug offenders, men and women who sell drugs on the street, who are couriers, who occupy the lowest ranks in drug organizations. Few of those incarcerated are drug kingpins or major traffickers. Imprisonment deprives inmates of their liberty, their families, their friends, and their jobs.

It reduces their subsequent income and employability and ultimately can wreaks havoc on their families’ financial and social stability. An estimated 124,496 children have had at least one parent imprisoned at some point since 1980 on drug charges.”

I believe that the Rockefeller Drug Laws should be repealed. It defies a fundamental sense of fairness that somebody who is addicted to drugs and therefore needs help to break the habit, instead of receiving help is sentenced to a term of imprisonment of 15 years to life, and in some instances as much as 25 years to life.

Firstly, using drugs, and therefore being in possession of them, is in no way the same thing as committing a violent crime. Secondly, while I, in no way, condone the selling of drugs and do believe that actions should be taken to both prevent and punish drug selling, that, too, is not as serious as committing a violent crime. While I was wrongfully incarcerated, I met people who had been sentenced under the Rockefeller Drug Laws, as well as those who had committed murder, pled guilty to manslaughter, and been sentenced to 5-15 years. It seemed ridiculous to me that the former was sentenced to more time than the latter.

I believe that the Rockefeller Laws unnecessarily destroy lives, offenders themselves, along with their children and other family members. Additionally, the Laws impact upon one’s ability to get decent employment afterwards, and subjects one to the consequences that long term incarceration involves. The Laws deprive those with drug addiction the opportunity of rehabilitation.

I can say from personal observation that, currently, there are no rehabilitation programs in prison that work. Rather than coming up with or
implementing programs that work, the Department Of Corrections has taken it’s ASAT Program (Alcohol and Substance Abuse Training Program) and added the letter “R” to it, now calling it RSAT, which is supposed to mean Residential Substance Abuse Program.

They simply house all of those in the program in the same cell block. There is more drug abuse in those cell blocks than anywhere else in most prisons. When those who sell drugs are put together with those who use them, what else can be expected to happen?

Further, when one is caught using drugs, they are thrown out of the program, and must reapply. During the intervening time, there is no treatment administered. In addition, the program authorizes the prison guards to nitpick at every little thing, because the program has a lot of rules regarding the cells that have nothing to do with addressing the problem of drugs.

When a small infraction is detected, such as having too many boxes in one cell, the prisoner is placed on a status that only permits them to take showers twice one week, and three times the next. They are served less food; food that is often two or three days old. They are kept in the cell for 23 hours a day, and away from treatment. This regimen often goes on for up to 30 days. Should the inmate receive a sentence of more than 14 days, they are kicked out of the program. Many of the instructors are simply there for a paycheck.

There are many in prison under the Drug Law who truly represent no threat to society, such as Papa. Are such individuals the ones we want to spend money on incarcerating? The Rockefeller Drug Laws are a waste of the State’s financial resources. Those resources could be better used on drug prevention programs, drug rehabilitation facilities, and other social programs. Application of the Law has been demonstrated to
be racist by uneven enforcement, and it has the net effect of disenfranchising minorities, because those found guilty of a felony are not allowed to vote.


Every year, Assemblyman Jeffrion L. Aubry, Chair of the Committee on Corrections and former Chair of the Black and Puerto Rican legislative Caucus, introduces a repeal bill that, if passed, would accomplish four essential objectives:

1) Restore sentencing discretion to trial judges in all drug cases;

2) Make sentencing reform retroactive so that current inmates could petition courts for review of their sentences;

3) Expand the funding available for alternatives to incarceration, including drug treatment, job training, and educational
programs so that judges have an appropriate place to send the offenders they decide need not be imprisoned;

4) Significantly reduce sentence lengths for drug offenses. I would encourage everyone to contact their Assemblypersons and Senators
and tell them that they want them to repeal the Rockefeller Drug Laws, so that the next time Assemblyman Aubry introduces the bill, it will get passed.

Many persons older than myself, have at times related that while they were in college, or some other stage of their lives, they briefly experimented with drugs. Suppose they had all been caught with four ounces? Should they all have been sent to prison for a long time? I cannot emphasize enough the idea that all of us must get involved in these criminal justice issues now, before, in one way or another, we are affected by it.

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