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jueves, marzo 26, 2009

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.

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jueves, marzo 05, 2009

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.

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