At Last: Drop The Rock

The New York Times reports that there's a deal to "repeal" New York's draconian Rockefeller Drug Laws. The details are still being worked out. There are hints, however, as to what is happening:

The deal would repeal many of the mandatory minimum prison sentences now in place for lower-level drug felons, giving judges the authority to send first-time nonviolent offenders to treatment instead of prison.

The plan would also expand drug treatment programs and widen the reach of drug courts at a cost of at least $50 million. ...

“We’re putting judges in the position to determine sentences based on the facts of a case, and not on mandatory minimum sentences,” said Jeffrion L. Aubry, an assemblyman from Queens who has led the effort for repeal....

The agreement, which requires approval in the Assembly and the Senate, would allow some drug offenders who are currently in prison to apply to have their sentences commuted. It was not clear on Wednesday how many current prisoners would be eligible to apply. Mr. Paterson has pushed to have fewer prisoners than legislative leaders would prefer.

While a few points, like a resentencing provision and the amount the state is willing to spend on the plan, were still being negotiated late Wednesday, lawmakers said they were on track to wipe out the central elements of laws that have been criticized for decades as overly punitive and disproportionately harmful to minorities.

Evidently, the revisions remove mandatory minimum sentences for all but A-felonies (the most serious) and permit judges to send defendants to treatment instead of prison. Judges would also have the ability to send some predicate offenders (those with more than one or more felony convictions) to treatment if they were found to be "drug dependent" in an evaluation. A prerequisite to treatment under the new statutes is a guilty plea to a felony. Failure to complete treatment would bring the case back to court, where the judge could impose a jail or prison sentence.

This seems to be a vast improvement over current law. Even in its "reformed" version, the Rockefeller Drug Laws now on the books are overly harsh, and they do not permit judges, even in cases involving a single, first B-felony $10 "sale" to another user, to avoid imposing a prison term upon conviction. This, of course, serves to fill New York's prisons with those who do not deserve it, and, more importantly, it continues the trend of disproportionately criminalizing minorities and poor people. Ending this cannot happen soon enough. And I applaud the repeal of those provisions.

But the devil, as usual, is in the details. The new legislation is far from perfect, and it has some serious problems.

The new legislation makes a "post plea" change. It seems to require felony convictions as a gateway to court mandated treatment. It is not a "deferral" program. Accordingly, each person convicted will have the same collateral consequences as any other person convicted of a felony. Put another way, criminalization will continue, although actual imprisonment may decrease.

The law also seems to require more admissions to "drug court." But drug court programs vary in their qualifications and quality and outcomes from county to county and are not regulated by any central authority or by any means uniform. Drug courts upstate are far less forgiving and offer far less benefit to participants than those in urban areas. More drug courts upstate are "post plea" programs that require probation to be served as well as "drug court." These drug courts do not offer those charged with felonies an opportunity to avoid a felony conviction, and require criminalization, even upon successful completion of the program. If more people are to be sent to these programs, they require a uniform playbook.

Although it is claimed that "New York already has one of the most extensive drug-treatment networks in the country," that does not mean that adequate levels of service are available in small, upstate counties. In Columbia County, for example, there is only one out-patient provider of drug and alcohol treatment, and that provider is operating at or near capacity. How does the unavailability of sufficient numbers of treatment providers affect the new changes? Does it mean that since there is no treatment available, the offender must be incarcerated?

It is, of course, important to re-sentence those who are serving long sentences for B and C felonies, to complete the re-sentencing process that began in the initial reform law. It has thus far not been decided what this will look like.

It is a huge step in the right direction to repeal mandatory minimum sentences. But I'm wary of half-cooked compromises that continue the trend of criminalizing and imprisoning minorities and so, like all of us, I need to see the actual bill and work out the details. For now, the news is that there's been a step in the right direction.