Spitzer's Fall Sparks Hope for Overhaul of New York's Rockefeller Drug Laws

Human Rights

In 2002, then-state Senator David Paterson was arrested at a sit-in at Gov. George Pataki's Manhattan office calling for the repeal of the New York's harsh Rockefeller drug laws. In 2006, during his successful campaign for lieutenant governor, he continued to speak out. Now, with Paterson's unexpected ascent to the governor's mansion in the wake of Eliot Spitzer's downfall, drug policy advocates sense a historic opportunity, even as they wonder about the prospects for now-governor Paterson following through on the reforms he has previously championed.

"He's ten times better on this issue than Spitzer," says Randy Credico, director of the William Moses Kunstler Fund for Racial Justice. "He's got more vision than anyone who's [vision] is 20-20. He's a brilliant man [and] the most progressive governor we've had with his feelings on criminal justice since [the great 19th Century abolitionist] William Seward."

"But," he adds, "we all know people can fold under pressure."

Robert Gangi, executive director of the watchdog group the Correctional Association of New York, says, "It gives us hope given that Paterson was an outspoken proponent of changing the Rockefeller drug laws in the past. But we are realists and we will continue to organize to hold him to his record."

Passed in 1973 at the urging of Gov. Nelson Rockefeller, New York's Rockefeller drug laws established harsh mandatory sentences for people convicted of selling or possessing relatively small amounts of narcotics, including sentences of 15 years-to-life for anyone convicted of selling two ounces or more of cocaine or heroin or possessing more than four ounces. As a result, over the decades that followed, thousands of non-violent, low-level offenders were swept up and incarcerated. By 1998, more than 20,000 New Yorkers were doing time under the Rockefeller drug laws, the overwhelming majority of whom were blacks and Latinos from poor neighborhoods like the one Paterson represented as a state senator for 23 years. In fact, Paterson -- the scion of a Harlem political dynasty -- recently admitted that he himself used marijuana and cocaine as a young man during the late 1970s.

As the casualties of the Rockefeller laws piled up, in the late 1990s, a broad-based protest movement began to take shape. Propelled by prisoners' family members and backed by some high-profile hip-hop artists, entertainment mogul Russell Simmons, and a slew of liberal politicians -- including Paterson and current New York Attorney General Andrew Cuomo -- the "Drop the Rock" campaign drew extensive media coverage and by June 2003 was able to bring upwards of 50,000 people into the streets of New York. Despite all this, the campaign struggled to translate its energy into meaningful policy reform.

After years of dashed hopes, the Drop the Rock movement won an important victory when the harshest features of New York's drug laws were modified in a pair of reforms enacted in 2004 and 2005. The automatic sentence for A-1 offenders -- someone convicted of selling two or more ounces of cocaine or heroin or possessing four or more ounces -- was reduced, from 15-to-life to eight-to-20 years. The threshold for being charged with an A-1 offense for possession of cocaine or heroin was also doubled, from four to eight ounces. The automatic sentences for lesser A-2 offenses were also reduced.

The changes made more than 400 of the longest-serving A-1 offenders eligible to apply to be released, as well as some 500 A-2 offenders. As of May 31, 2007, 214 A-1 offenders and 115 A-2 offenders had been released, according to the Drug Policy Alliance. However, the central features of the Rockefeller Drug Laws -- lengthy sentences for non-violent drug offenses and lack of discretionary sentencing -- were kept intact. In the scheme of things, says Credico, who helped organize scores of protests by family members from 1998 to 2005, "The changes were so minimal."

Thirteen thousand New Yorkers (out of a total state prison population of 63,000) remain incarcerated under the Rockefeller laws, at a cost of $500 million per year to the state, according to Gangi. "The Rockefeller Drug Laws are wasteful, ineffective, unjust and marked by racial bias," he says. "…They impact people on the margin of the trade, not the major perpetrators, not the major profiteers."

Rebuilding a Movement

Faced with a Republican governor -- George Pataki -- who wasn't going to budge any further, the Drop the Rock movement demobilized following the 2004-2005 reforms. And while Eliot Spitzer expressed support for further reforms of the Rockefeller laws during his 2006 gubernatorial campaign, he did little during his first year in power, except to create a bi-partisan sentencing commission to examine the matter. The commission is scheduled to issue a report at the end of March, but will not achieve consensus on a path forward, according to Jeffrion Aubry, a Queens Assemblyman who has played a leading role in pushing Rockefeller reform measures in the lower house of New York's state legislature.

Rockefeller opponents were already stirring when Spitzer was suddenly toppled by a prostitution scandal on March 12th. Just one week before, a public forum featuring Aubry, Gangi and three other leading Rockefeller critics was held March 6th at the New York Society for Ethical Culture. In addition, thousands of petition signatures have been gathered and plans have been laid for activists from the Drop the Rock coalition to travel en masse to the state capitol in Albany for the first time in six years. Two-hundred to 250 people -- family members, former prisoners, students, social services providers and others -- are expected to make the four-hour trip on Thursday, March 27, according to Caitlin Dunklee, coordinator for the Drop the Rock Coalition. They will fan out for a day of lobbying more than 100 legislators and their aides from both parties and both houses of the state legislature.
This lobbying offensive comes at a time when Paterson and the legislature are focused on an April 1st deadline to pass a state budget state in the face of a $4.5 billion shortfall; the renewed push for Rockefeller reforms comes at a time when New York's divided state legislature is on the verge of falling under full Democratic control. The Democrats have an overwhelming majority in the Assembly and are poised in this year's elections to gain control of the state Senate where the Republicans hold a slim 32-30 majority. It would mark the first time since 1965 that the Democrats would control both houses of the legislature. Drug policy advocates don't expect state leaders to address the Rockefeller laws right away, but they do hope to put the issue back on the agenda -- if not for 2008, then certainly for 2009.

For Senate Republicans, supporting Rockefeller reforms would be a chance to show voters in this liberal-leaning state that they are not as ideologically rigid as their national colleagues. But it seems more likely that "tough on crime" posturing will prove, as it often does, politically preferable. After all, nearly every one of New York's 70 correctional facilities are located in rural, upstate districts that have Republican state senators.

Regardless, it's hard to speculate. "There's a lot of variables in where they may come out on this," says Gangi. "But it's up to us to keep the pressure on."

Having worked for Rockefeller reforms since he was first elected to the Assembly in 1992, Aubry says the distance between the two sides is generational as well as ideological. "I've always found when it came to Rockefeller and drug use that the younger the representative, the more they had had experience with drugs in their lives and their community," Aubry says. "The older operated off the same fear that pushed [the] Rockefeller age to enact the laws … So when you say people can be cured, the older folks don't believe that. People who have lived in our generation know that this is in fact true."

Politics aside, economic considerations may ultimately end up forcing New York to change its drug laws. Faced with a growing budget deficit, the state could save $200 million per year, according to Gangi, if it overhauled the Rockefeller laws and switched to an emphasis on drug treatment and discretionary sentencing. "In a time we're searching for money, it would be a smart mechanism," Aubry says. "These states like Texas and California and Florida and Ohio that have huge and growing prison populations are now looking at different ways to treat their drug problems as opposed to the mandatory minimums. This is happening across the country. If it's not driven by the desire to view drugs in another way and provide services, it is clearly being driven by accelerating costs for continuing to incarcerate people who could be better dealt with in the community in a medical model."

Still, Credico notes that some of the desired reforms like replacing mandatory minimums with discretionary sentencing could yield ugly surprises. "We have a lot of bad judges that are worse than the assistant district attorneys and that are as reactionary as any judge in Texas or Louisiana," he says. "So beware of what you ask for." Besides, he says, overhauling the Rockefeller drug laws must be seen as a first step, and not an end in itself.

"You can't just change the drug laws. You need a major overhaul of the criminal justice system," he says. "You're still going to have mostly blacks and Latinos going to prison. The whole system is rigged and racist."

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