New York Lightens Up on Some of the Harshest Drug Laws in the Country

By Steven Wishnia, AlterNet. Posted April 3, 2009.

Second, Rockefeller, the erstwhile standard-bearer of the Republicans' shrinking liberal wing, was contemplating another run for the party's presidential nomination, and he needed to prove that he was adequately "tough on crime."

The result was a law that mandated 15 years to life for sale of 2 ounces or more of heroin or cocaine or for possession of 4 ounces.

(Crime in New York continued to rise until the early 1990s, and New York City neighborhoods like Washington Heights and the Lower East Side -- low-income areas easily accessible to white buyers -- became open-air drug markets.)

Critics of the Rockefeller laws' harshness charge that they are "unjust and racially targeted," Linda Dechabert, head of Exponents, a harm-reduction group working with drug addicts, ex-prisoners and people with AIDS, said at the March 25 rally.

The racial disparities most likely stem from the ecology of the drug trade -- ghetto street dealers are more visible and violent than discreet white-collar dealers -- and the cumulative effects of racism in who gets stopped, who gets prosecuted and who gets imprisoned.

"It's easy to arrest blacks and Latinos, because they're in a confined area," notes Carl Dukes, 64, an ex-prisoner who attended the rally.

Another criticism is that penalties are determined by the weight of the drugs seized rather than by the defendant's role in the deal.

The most notorious case of that was Elaine Bartlett, a Harlem single mother who in 1983 was set up by an Albany cocaine dealer, who paid her $2,500 to deliver 4 ounces to him. Bartlett got 20 years to life, serving 16 years before she won clemency. Police allowed the dealer who hired her to continue operating in exchange for the information.

The state enacted mild reforms in 2004 and 2005. They reduced the 15-to-life sentences to 8 to 20 years, but did not affect the 90 percent of the state's drug prisoners convicted of lesser charges.

Activists developed four "pillars" for further-reaching reforms: restoring judicial discretion, expanding treatment and alternatives to prison, reducing sentences and retroactivity -- letting prisoners apply for the sentences they would have gotten under the revised laws.

By those standards, the proposed new law would do well on treatment. It's expected to provide an extra $50 million to $80 million for drug-treatment and alternatives-to-incarceration programs, such as the one run by the Brooklyn district attorney's office.

New York has a harm-reduction system well positioned to take advantage of this, notes Gabriel Sayegh of the Drug Policy Alliance, as there are well-established programs for drug rehab, needle exchange, methadone maintenance and overdose prevention.

Most activists agree, however, that the bill falls short on judicial discretion and retroactivity. For example, someone found guilty of selling drugs would still get an automatic 4 1/2-year minimum if they had been convicted of a violent felony in the past 10 years, says Gangi. Such a person might be dangerous -- or might have calmed down considerably since their previous crime.

"We're not saying people should not go to prison," he explains. "We're saying the judge should decide."

"It's unfair. You're caught with a little amount of drugs, and you serve a long, long term in prison," says Ashley O'Donoghue, a tall, thin man with "God's Son" tattooed on his neck. "It should be retroactive so the people who are still there can get a sentence that's more suitable for what they did."

O'Donoghue, 26, was arrested in 2003 when two white college students he'd been dealing cocaine to were nabbed and set him up for a 2 1/2-ounce sale, well above his usual range. Facing 15 to life, he pleaded guilty to a B felony and served five years of a 7-to-21-year sentence.

Comedian Randy Credico, a longtime drug-law activist who attended the March 25 rally dressed as Diogenes, "looking for an honest politician," says any changes in the law would be inadequate unless retroactive resentencing is "automatic." Less than half the 1,000 prisoners eligible to apply for shorter sentences under the 2004 law actually got them.

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Steven Wishnia is a New York journalist and musician. The author of Exit 25 Utopia and The Cannabis Companion, he has won two New York City Independent Press Association awards for his coverage of housing issues. He is looking for a job.

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