Rockefeller Drug Law Reform

New York's legislature might reform the draconian Rockefeller Drug Laws (again) this year. New York has been saddled with its harsh drug laws for 36 years, and change has been extraordinarily slow in coming. New York's prisons are still jammed at huge cost both to the state and to the incarcerated and their families with non-violent drug offenders. And the legislature, prompted by fiscal concerns, seems willing to tinker with the statutes, rather than tossing them out and starting over with a different, sensible plan. The legislature's proposed reforms, however, are a beginning of significant change.

What is the present law? An addict who sells $10 worth of crack to support her own habit and who is convicted of a B-felony sale MUST go to prison for at least 1 year and then be on post release supervision (i.e. parole) for at least 1 year. And she might be sentenced to a term of 9 years. Judges cannot sentence her to probation or to treatment even if they believe that's appropriate. She can go through "shock incarceration" or CASAT, programs that will require her to be released before her 1-year term is ended. A 1-year term is ordinarily reduced by 1/7 for good behavior and an additional 1/7 for completing a program, making it essentially a prison term of about 8 months. Prison is presently the benchmark for all B-felony sales, no matter the circumstances. Some DA's will reduce these sales to crimes that do not require prison. But some will not. The definition of the crime does not take into account whether the sale is made solely for profit or whether it is made by an addict to support her habit.

The legislation changes this particular mandatory prison sentence by providing diversion possibilities and additional sentencing options.

The State Assembly has passed a bill to begin to make needed changes in the statutory scheme. The bill states as its Purpose Or General Idea:

To significantly reduce drug-related crime by addressing substance
abuse that often lies at the core of criminal behavior. The bill would
accomplish this goal by returning discretion to judges to tailor the
penalties of the penal law to the facts and circumstances of each drug
offense and authorizing the court to sentence certain non-violent drug
offenders to probation and drug treatment rather than mandatory prison
where appropriate. The bill will also strengthen in-prison drug
treatment and reentry services.

The bill might also pass the State Senate, which now has a Democratic majority.

This legislation is an important first step toward reform, but it's just not enough to solve all of the problems. There remains no cogent state policy about drugs, and long term incarceration of both sellers and users remains a distinct possibility under the new legislation. While the legislation begins to make substantive changes, it doesn't really attempt to solve all of the most obvious problems with the old laws.

Put another way, I agree with the New York Civil Liberties Union that "while the bill represents an important step in overhauling the drug laws, the bill was nevertheless only one step":

The [NYCLU's] analysis found that in certain essential respects, the Assembly proposal does not fully realize the reform principles on which the legislation is based.

The NYCLU noted, for example, that the bill:

* Leaves in place a sentencing scheme that permits unreasonably harsh maximum sentences for low-level, non-violent drug offenses;
* Disqualifies from eligibility for treatment and rehabilitation individuals who may be most in need of such programs; and
* Creates an unnecessarily burdensome procedure for sealing a criminal record after someone has completed a substance abuse program.

The NYCLU also recommended that in order to realize the promise of alternative to incarceration programs, the state must develop evidence-based, best-practice models to ensure good outcomes for the individuals who enter such programs – and for their families and communities.

About this, I agree with the ACLU's Donna Lieberman:

"This is an essential first step, but we encourage Governor Paterson and the State Senate to authorize judicial discretion to divert individuals from prison in all appropriate cases; to expand and improve the quality of alternative to incarceration programs; and to provide long-sought justice to the thousands of families that have been torn apart by the Rockefeller Drug Laws,” Lieberman said.

If New York is really serious about eliminating some of the obvious problems with these statutes, it's going to need to go further than the presently proposed legislation. The present legislation is a start that has been a long, long time in coming. Let's hope it doesn't take another decade to complete the process.