Drop the Rock

The nation's harshest drug laws -- a legacy of New York Gov. Nelson Rockefeller -- are now entering their 30th year.

Attempts at reforming New York State drug laws drags on while 19,000 people languish in prison. The law was intended to target big-time dealers -- and some of the incarcerated are indeed violent offenders. But up to 90 percent of them, estimates Rev. John H. Cole of the United Methodist church, are addicted, low-level street dealers, guilty only of selling small amounts of heroin or cocaine or crack.

And 94 percent of them are Latino or black -- though they use drugs at the same rate as whites. Commit a second offense, and almost any speck of drugs leads to hard time. Warehousing them helps provide some 30,000 jobs, mostly in depressed upstate New York at a cost of $700 million a year -- this in a state facing a more than $1 billion budget deficit.

Meanwhile, the state's leaders call for reform and blame others for a stalemate that has existed since at least early 2001, when New York's Republican Governor, George Pataki, proposed a species of reform.

Seeking to stifle the impact of demonstrators chanting at the "Drop the Rock" protest outside his mid-Manhattan office last week, Pataki floated another trial balloon in the press, the second time he's done so following his much castigated formal proposal.

Currently mulling a run for the presidency, the Rev. Al Sharpton charged at the "Drop the Rock" demonstration that New York is "throwing entire lives away, with no chance of redemption, no chance of a mainstream American life. They attack the vulnerable, not the source of the drugs."

As a federal judge quoted by Human Rights Watch observed, "It is difficult to believe that the possession of an ounce of cocaine or a $20 'street sale' is a more dangerous or serious offense" than rape, arson or manslaughter. Yet the drug offense may carry more time. HRW added that due to the focus entirely on the drug's weight, "The law does not distinguish between persons whose criminal conduct is limited to a single incident or who are marginal participants … and career criminals or manage[rs] of large criminal enterprises."

The three major candidates for governor in New York this November are all ostensibly in favor of reform. Pataki leads both Democrats, State Comptroller H. Carl McCall and former Clinton cabinet member Andrew M. Cuomo, in the polls by some 20 points. Pataki's state spokesperson, Caroline Quartararo, said Pataki will follow up his leak to the press by proposing a bill within a "few weeks."

But with the Legislature closing down by the end of June at the latest, does that offer enough time to thrash out a bill? Apparently negotiations between the Assembly and the administration have picked up some steam, and Quartararo said Pataki's new director of criminal justice, Chauncey G. Parker, has spent "hundreds of hours meeting with various stakeholders on this."

Speaking to perhaps 200 admiring protestors, Sharpton noted that changing New York's laws, the nation's most repressive, would aid reform nationwide. Then he charged: "Pataki -- quit talking out of both sides of your mouth. We need repeal now. Too many white-collar criminals rob people of billions of dollars and walk away with probation. And yet some kid convicted on a minor reefer arrest does all kinds of state time. It's not fair." Robert Gangi, executive director of the reform organization, the Correctional Association of New York, believes that Pataki does truly want a change, but that he doesn't appreciate the importance of judicial discretion. He concluded, "There's a chance, a real chance."

Noting Pataki's vulnerability in economically depressed upstate New York, Tamar Kraft-Stolar, a coordinator at the Correctional Association, said, "It's clear he wants it off the table during the campaign." She added, "He wants to gain votes without going too far."

Randy Credico, director of the William Kunstler Fund for Racial Justice, said Pataki is "tiptoeing -- he's trimming the edges at best." Part of the problem is that the three state senators most opposed to reform have, according to Credico, a total of 30 correctional facilities located in their districts.

As to the Democrats, Andrew Cuomo has been missing in action, according to several reformers. Carl McCall has been foresquare in criticizing Pataki and calling for reform. Declaring McCall "very good" on the issue, Credico said, "Cuomo is dodging it. His father built the prisons, so no one in my groups is too thrilled with the name Cuomo."

Sharda Sekaran, associate director of public policy for the Drug Policy Alliance, declared McCall a vocal advocate. She believes Cuomo also is supportive of reform, but said, "I don't know how public he's been." Indeed, the Cuomo campaign did not respond to several requests for comment.

Sharpton told AlterNet that Cuomo and McCall need to show their "dramatic opposition" around the state, but, "I don't know what they're doing."

Howard Josepher, director of the Manhattan treatment center Exponents, said, "All of them are taking the talk, but no one is putting themselves on the line to endorse real repeal and reform. Both the Democrats and Republicans are keeping it locked in committee. You would think [Assembly Speaker] Sheldon Silver would be most responsive -- it's the Democrats' constituents who are affected."

Credico said the Mothers of the New York Disappeared will be holding Pataki's feet to the fire regularly at his campaign stops. Additionally, 150,000 recorded phone calls to typically minority communities from Sharpton and former Bronx Borough President Fernando Ferrer, will seek to keep pressure building.

Reformers hope to utilize that pressure to enact several changes in the current law, melding whatever the governor proposes with a hopefully improved offering from Silver and the Assembly.

Sekaran noted four crucial problems with Pataki's stance: the maintenance of low weight limits for the top sentences; the lack of retroactive sentencing reform; the fact that prosecutors would still control eligibility for diversion to treatment (though judges could overrule that); and the lack of increased treatment resources. On that point, she said, "The Assembly has called for $100 million annually for treatment, but we don't see a dime from Pataki."

Reformers' foremost concern is returning discretion to judges to both determine sentencing and eligibility for treatment in lieu of incarceration. Currently, prosecutors determine the charge and thus the sentence. And, according to the governor's leak last week to The New York Times on his likely revamped legislation, DAs would still determine treatment eligibility, but defendants would retain the right of appeal and judges could overrule prosecutors. But with many judges culled from the ranks of prosecutors, the average street addict who's already cycled through the system will have to stretch far for that eligibility brass ring.

His spokesperson maintains that Pataki's proposal boosts judicial discretion by taking the decision regarding maximum time served away from parole. Quartararo added that Pataki will call for cutting minimum sentences in half. For instance, rather than the top sentence of 15 years to life, the governor now wants 10 to 20 years; for class B felonies, which currently range from four-and-a-half to nine years, Quartararo said Pataki is proposing a flat sentence of four years.

Quartararo added that, despite the mistaken assertion in the Times, Pataki would have treatment professionals deciding on client failure: "It won't be, one or two strikes and you're out."

Judicial discretion absolutist Tamar Kraft-Stolar said, "It seems Pataki moved a little bit." But she pointed to the many defendant circumstances that still tie judges' hands, such as the presence of guns or involvement of minors, or running a drug ring of more than three people. Then there's also the need to prove drug dependency. Plus, offenders with more than one prior felony conviction will be ineligible for diversion.

For its part, the DPA is particularly concerned about retroactivity for the current 19,000 prisoners, the majority Class B offenders locked up for selling or possession with intent to sell. Pataki's previous plan, Shadra Sekaran noted, would consider some sort of sentence reduction for only around 600 prisoners serving the longest sentences; that's less than 3 percent of the total.

Credico called for a "massive clemency" of those who've served five or six years, a "general amnesty of a couple of thousand people." Even if the Assembly bill passes, Credico said, "New York would go from having the worst drug laws in the nation to having the worst drug laws in the nation." Pataki's spokesperson, Caroline Quartararo, indicated the next few weeks will determine if some sort of retroactive sentence reduction is still on the table.

Of course, any provision regarding treatment will mean little if the slots don't exist. Currently, press reports refer to addicts who engineer their own arrests as the only route to treatment. Quartararo admitted that additional funding needs to be discussed: "That's an issue we're working on." Any negotiations should recognize estimates from the Legal Action Center that sending second-time, nonviolent drug offenders to treatment rather than prison could save a total of from $92 million to $222 million.

Finally, the much-ridiculed Pataki proposal to raise marijuana penalties probably is little more than political posturing that gives him room to maneuver. One Albany insider termed it "a de facto bargaining chip." The DPA's Sekaran declared the marijuana provision illogical, unpopular and nonsensical, adding, "I can only assume it won't require a big effort to make it go away."

Credico called for "selfish" marijuana users to get involved in the overall issue, theorizing that should the Rockefeller laws be changed, marijuana reform might be next. He figured that Pataki's threat regarding marijuana is "ludicrous given that both he and [Mike] Bloomberg have admitted using it."

As to the relative dearth of white, middle-class support for Drop the Rock efforts, Sekaran said that marijuana users have been focused on the absurd number of pot arrests in New York City under Rudy Guiliani, enforcement that current mayor Michael Bloomberg has indicated will continue. Sekaran noted that, "Rallies and advocacy have focused on the communities impacted. It's no coincidence you see large numbers of African-Americans and Latinos involved."

Daniel Forbes (ddanforbes@aol.com.) writes on social policy from New York.

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