Little over thirty years ago Governor Nelson Rockefeller and the New York State legislature created the toughest drug laws in the nation. Their aim was to curb the drug epidemic, capture drug kingpins and create harsh drug laws that would combat drug use and selling. In reality this did not occur. Instead these laws have filled our prisons with non violent drug offenders, primarily from NYC neighborhoods. Over 94 percent of those incarcerated are black and Latino. Over 80 percent of New Yorkers agree that these laws are not effective and there is a need to created meaningful reform. In 2002 for the first time in history the governor of New York and legislative leaders called for reform.
In 2004 and 2005 following that call, the New York Stare Legislature imposed changes in the Rockefeller Drug Laws. These reforms were meant to allow current drug offenders who have already served long sentences to apply for reduced sentences. They also lowered drug sentences and expanded prison-based drug treatment. These minor reforms, in theory, would affect about 1000 drug war prisoners eligible for resentencing under the Drug Law Reform Act (DRLA).
I served 12 years of a 15 to life sentence for a non-violent drug offense after passing an envelope to undercover officers containing 4 ounces of cocaine in exchange for 500 dollars. I made the biggest mistake of my life just like many others who are serving hard time. In 1997 I was granted clemency by Governor Pataki, who recognized the injustice of my sentence. Most of the people I left behind were serving long sentences for non-violent drug offenses. I then became an activist who has fought tooth and nail for meaningful reform and was very disappointed to see that very little was done in the minor changes made in 2004 and 2005.
While these changes were a first small step, much more needs to be done, like addressing the issue of the 4,800 B-felons who make up the largest group of drug prisoners. Currently selling small quantities of drugs can land you a sentence up to nine years for a first offense, equal to a B-level crime such as rape or armed robbery.
But almost more upsetting than the lack of changes has been the response made by the prosecutors of New York, who often distort the facts associated with these reforms. The most outspoken opponents of these laws have continuously put out a "war cry" to the media and the public about the dangers of revising these laws and how the gateways of hell would be open if the laws were changed. If you look through their hype you will discover the underlying reasoning behind their stance. Prosecutors live and die by their rates of conviction. This is the bottom line.
With activists inching closer to meaningful reform comes the reality that prosecutors would eventually lose their omnipotent power in drug law cases. As it stands with the new reforms they maintained this power. They still control the outcome of a drug case from its beginning.
While the prosecutors point to a handful of people who are undeserving of relief under the new reforms, the vast majority are non-violent offenders who deserve a chance to reenter society and be treated with compassion. Just like when NYC District Attorney Bob Morgenthau showed compassion recently for the NYU "Pot Princess" Julia Diaco who was sentenced to treatment and 5 years probation instead of a 25 year sentence for 8 separate felony sales. And before her , Governor Pataki's former Rockefeller Drug Law spokesperson who was busted for buying crack cocaine and sentenced to a 250-dollar fine and treatment.. We have to think about the concept of redemption and compassion for all. People can change their lives. I know this for a fact.
According to Drug Policy Alliance, a leading policy group in NYC, 70 percent of the 1,000 prisoners that were eligible for relief under the new reforms are still in prison.
One of the most significant reasons for this is that prosecutors almost always argue for the maximum sentence, ignoring the records of rehabilitation and relying on old facts that were maintained many years earlier. One of the most controversial points of Rockefeller reform is judicial discretion. Under the current laws, judges have little power to place offenders in treatment. The power is maintained by the prosecutors, who also decide what charges are appropriate. Advocates for reform argue how could justice be served by allowing the one party who measures success by their conviction rates? Discretion should be available to the presiding judge, who is the only objective person in the case.
It may be true that inner city neighborhoods are devastated by drug use. However, this is not the only root cause for this. Lack of opportunity, unemployment and education are also contributing factors. One of the most significant factors is also the lack of drug treatment. Under the new reforms the State legislature did not fund community based treatment, which has been found to be the most cost effective way to reduce drug use.
While in prison, I became a jailhouse lawyer and litigated dozens of drug cases and never once came across a "drug kingpin". Most of these prisoners were non-violent drug users that needed treatment. However, treatment was not available in prison then, and it is not available now.
We need to create laws that will protect the community and at the same time be fair and just. The Rockefeller Drug Laws in many ways have become crueler than the crimes that are committed. They go beyond the individuals that committee crimes. They destroy their families and put a financial burden on tax payers that foot the bill for an ancient and proven ineffective approach to the drug problem. The drug war has fueled the prison industrial complex. Since 1982, 33 prisons have been built in rural Republican upstate communities. They have become a source of revenue for upstate politicians that have discovered a cash cow. Instead of filling our prisons with non-violent drug offenders we should concentrate on alternatives like drug treatment and the creation of jobs and education for the communities of color which is affected the most in the efforts to lock our way out of the drug problem. Only then will we be able to solve the drug war problem in New York.
Anthony Papa is the author of 15 To Life: How I Painted My Way to Freedom
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In presenting their case for past and future revisions to New York’s Rockefeller drug laws, supporters of the changes contend that revising the law would benefit non-violent, first-time drug offenders and low-level criminals, not drug kingpins or violent career criminals. After more than a year’s experience implementing the drug law revisions of 2004, however, that is not what has happened. While some low-level drug offenders have benefited from the revisions, sanctions against numerous violent career criminals and high-level narcotics traffickers also have been significantly reduced. I fear that further changes now under consideration may well make the situation worse and may again put at risk neighborhoods once devastated by drugs that have been rescued.
I have been New York City’s Special Narcotics Prosecutor since 1998, but I have been a practicing prosecutor since 1983. I was handling homicide cases during the 1980s and the 1990s, when the crack epidemic was at its height. And I saw case after case of young people dying over crack.
They were dying because people who killed them were high. They were dying because people were fighting over a spot to sell drugs. In the 1980s, parts of this city were nearly destroyed by crack. In the 1970s, heroin had done the same thing in too many neighborhoods.
The Rockefeller drug laws were enacted in 1973 during that heroin epidemic because people were tired of seeing young people dying and so many other lives destroyed because of drugs. The laws set penalties of 15 years to life for some drug offenses and limited the amount of discretion judges had in setting sentences. Around this time, the Office of Special Narcotics was set up to address the problem of narcotics trafficking in New York City. Today, we handle about 4,000 felony narcotics cases every year. When I say, "felony," I don't mean user amounts. Mostly it's selling drugs. And when I say, "narcotics," I mean cocaine and heroin. Marijuana is not a narcotic drug.
While critics say the laws do not focus enough on treatment, the Office of Special Narcotics has been a staunch advocate of drug treatment. Along with the Brooklyn district attorney’s office, we pioneered alternatives to incarceration in the late 1980s, because we saw no point in jailing people who sell drugs to support their own habit. But experience in this area has taught us that a person’s fear of going to prison is a way to motivate them to get into treatment. Some of our drug defendants have said that the day they got arrested was the best day of their lives, because the only thing they wanted to do less than stop using drugs was go to prison. When they faced the threat of state prison, they were finally able to turn their lives around.
But treatment programs alone are not going to solve the problem, because the majority of drug dealers are not addicted. Most people sell drugs because it's fast money. They don't have great educations. They don't have great economic opportunities.
And so they sell drugs, causing further devastation in their neighborhoods. Things have improved a great deal in New York City. But we still get calls from people who say, “There's drug dealing going on, on my doorstep. I don't want my kid walking past it.” And communities across the city tell me, "Get those drug dealers off my street corner, lock them up and do it now."
This is understandable. Narcotics go hand-in-hand with violence. They go hand-in-hand with other crime. So, when we have a narcotics problem, we have a crime problem. And not just the crime of drug selling.
We have used narcotics enforcement as a tool to bring the crime rate down in this city and to address violent crime in the drug-plagued areas of the city. We need to make sure that, whatever changes we make in the state’s drug laws, we can continue to do that.
The first set of Rockefeller drug law revisions was enacted in 2004 and became effective in January 2005. It was an overall revamping of the drug statutes.
Before the changes, possessing four ounces or more of a narcotic drug, meaning cocaine or heroin -- or selling two or more ounces -- was an A-1 felony in New York State. Four ounces may sound like nothing. But you can get at least 4,000 glassines or vials out of four ounces of coke or heroin. You don't see users with that amount.
The 2004 Drug Law Revision raised the amount needed for a possession offense from four ounces to eight ounces of cocaine or heroin. Selling two ounces remains an A-1 felony. The legislature did not change that.
But it did reduce sentences so that a person convicted for the first time of a top narcotics offense -- possessing a half a pound of coke or heroin or selling two ounces -- faces between eight and 20 years (Before they faced 15 years to life).
The revision also decreased prison time for all narcotic offenders and provided for re-sentencing of people already in prison. The measures were intended to help nonviolent drug offenders and low-level drug offenders, and some did benefit. But kingpins and major traffickers were the ones who received a windfall.
By November 2005, approximately 270 prisoners were re-sentenced statewide. The Office of Special Narcotics handled about 31 percent of those cases. In about 10 cases, we consented to having them serve the minimum. Fifteen years to life was too heavy for their crime. So good things did come out of the revision.
But most people that the office handled either had been convicted or implicated in some kind of a violent crime or were a major trafficker or kingpin. Of the 81 who had applied for re-sentencing to our office, we had nine involved in homicides or serious assaults, which left the victims paralyzed. We had 23 kingpins, or major traffickers. One, whose sentence was cut to 11 years, already had a federal money laundering conviction and was a high-level member of an international ring responsible for importing thousands of pounds of cocaine and laundering millions of dollars.
And then, applying for sentence reduction, were the people who destroyed neighborhoods in the 1980s, who took over areas of Harlem or the Lower East Side, took over whole buildings and trafficked thousands of vials, thousands of glassines out of those buildings. The head of a Lower East Side cocaine organization, which had weekly sales of $15,000, saw his sentence cut by eight years. People like him make a lot of money, so you need to be able to impose a stiff jail sentence to let them know it isn't worth it.
Under the new statutes, the judges can impose a sentence of from eight years up to 20 years. Judges are guided by their own discretion in sentencing - with one exception: If a person has a prior felony conviction, the sentencing range is now 12 to 24 years if the previous felony was non-violent and15 to 30 for a violent prior felony. The old law made no distinction: The minimum sentence was 15 years to life for all, and the maximum 25 to life for all.
Many people who have gotten minimum sentences of eight years since the new law went into effect do not fit the description of the intended beneficiaries of the drug law changes. One woman who received the minimum had been convicted of coordinating the delivery of 322 pounds of cocaine.
In 2005, the reforms went from bad to worse. The legislature extended re-sentencing to the next level down, to the A-2 offenders. Many of these people had plea bargained their cases. They were originally charged with the more severe A-1 offenses and then plead guilty to A-2 crimes to get a shorter jail sentence.
We offered them the plea because we had heard the message. Many New Yorkers thought too many people were getting 15 years to life. And often we agreed. The A-2 range of eight and a third years to life was adequate to punish most of these offenders.
But then the legislature passed A-2 re-sentencing, and they excluded from the change anyone who had received a minimum sentence. Only the most serious offenders or those who had prior convictions were eligible to be re-sentenced. So it seemed that the state government had done the opposite of what reform advocates intended. Rather than helping low-level offenders, the people eligible for re-sentencing included one who was found with 70 pounds of cocaine and a loaded 45 caliber gun, and another with 715 pounds of cocaine.
Now, there is talk about changing the sentencing structure for the next level still, B felony offenses. And quite frankly, I fear what this could do.
Most of the defendants we prosecute for B-level felony offenses are selling drugs. Of the approximately 2,500 we prosecuted during a year, only 315 received a sentence of more than a year in jail. Of those we sent to state prison, 89 percent had prior felony convictions. Only 36 were first-time felony offenders. And we sent twice as many first-time felony offenders to treatment as to state prison.
But this is a critical statute for prosecuting the people who ruin neighborhoods. If you are going to make some money selling $5 vials of crack, you have to sell a lot of them. And, for the people living next door, it’s a huge problem, destroying the quality of their life.
Now the people selling that crack should not go to jail for the rest of their lives. But we need to take them out of the community long enough for the neighborhood to come back up again.
The other push is for expanded judicial discretion. This creates problems. If judges can do anything they think is appropriate, there are going to be inconsistent sentences because judges have different perspectives. And widely varying sentences can decrease confidence in the legal system. It makes people think that the system is unfair.
That is what happened in the 1970s, when judges were allowed complete discretion and so could sentence people to whatever they wanted. At that time, the New York Times ran a series of articles on this issue. They found that the problem of sentence disparity – different sentences -- increased as judges had more discretion. The chief judge in New York State, the head of the Court of Appeals, said then that it “might be desirable” to take sentencing away from judges entirely and turn it over to some other agency.
We do not want to return to the days when many called sentencing in New York State “chaotic.” I think we want the legislature to take the responsibility, set a sentencing range, and then let the judges determine within that range what sentence is appropriate.
Fighting drugs -- and developing laws that can do that and at the same time protect neighborhoods -- is a tough, tough issue on which people feel passionately. We cannot incarcerate our way out of the drug problem. People need a good reason not to do drugs. They need other choices. I wish we had a good way to provide that. But minimizing consequences for drug dealers is not the answer. Drug crime begets violent crime and for the present, incarceration is the most effective tool to reduce that violence.
Bridget Brennan has been New York City’s Special Narcotics Prosecutor sine 1998.
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New Yorkers’ feeling of safety, gradually regained, may have taken a few steps backward. Our uneasiness is not due to a resurgence in crime. While it is true, as the New York Sun reports, that the number of major crimes so far this year, including homicide, is up compared to the same period in 2005 -- a trend that is confirmed by the most recent publicly available New York Police Department statistics (in pdf format) -- it is too early to draw any conclusions from those numbers. The numbers can easily be skewed this early in the year by anomalous spikes in crime, and the period to which the present is being compared -- the beginning of 2005 -- featured unusually low incidence of crime.
New Yorkers have been reminded that no matter how low crime rates drop, or how much safer New York is than places like Columbus, Ohio, there lurks a palpable anxiety about the threat of terrorism.
Over the Presidents Day weekend, an unknown thief broke into the car of a Department of Environmental Protection employee and stole a laptop computer containing maps of the city’s water distribution system . Officials initially worried that the maps might fall into the wrong hands and compromise the security of the system; worries about terrorism reportedly were enough to get the police department’s Intelligence Division involved in the investigation. By the middle of the week, however, officials seemed comfortable to say that the theft was not terror-related, but rather a run-of-the-mill car break-in.
Then on February 22nd, city officials announced that a West Village man was being treated for a case of inhalation anthrax . The news of a case of anthrax in New York, combined with the images of first responders in biohazard suits was enough to evoke vivid memories of the fall of 2001, when several media outlets received letters laced with anthrax spores and put the city on edge for weeks. As in the situation with the stolen water system maps, officials acted quickly and decisively. Mayor Bloomberg held a press conference on the afternoon of the 22nd (see video of it), flanked by Police Commissioner Ray Kelly and city health officials, to deliver the news and to reassure the city that there was no evidence of terrorism. Officials believe that the infected man, Vado Diomande, a dance choreographer originally from the Ivory Coast, contracted the disease from naturally occurring anthrax spores on several hides he had brought over from Africa for the purpose of making drums. As of this writing, Diomande remained hospitalized undergoing treatment, and no other cases of anthrax have been reported.
In both of these cases, New Yorkers were able to rely on their own first responders and administrative officials. A Daily News editorial. "City Passes Anthrax Test",—summed up the general mood. The editorial praised city officials for being upfront with the public, and noted that "it was nice also to be reassured that the emergency response system was on the case, up to speed and in command." So too have the city’s first responders seemed up to the task in other situations where the risk of terrorism seems acute: the visible police presence at landmarks, increased arrests on the city’s bridges and tunnels (700 percent, the Post reports, since the September 11th attacks) and, agree with it or not, the policy of conducting random baggage searches of subway passengers in the wake of last summer’s bombings in London. New Yorkers might almost have been forgiven for having entertained dreams of self-reliance when it comes to security measures.
Yet the story of the debate over the control of New York Harbor abruptly woke us up. The federal government, with a minimum of publicity (“Congress probably should have been briefed on this matter sooner,” said the president’s press secretary) and lack of adherence to procedural niceties (a mandatory investigation period was apparently skipped), approved the sale of port operations at six major U.S. ports, from P & O Ports North America, a British company, to Dubai Ports World, a company owned and operated by the government of Dubai (part of the United Arab Emirates). Port Newark, and the New York Cruise Terminal on the West Side are two of the ports that would be affected. Critics immediately raised terror-related concerns, citing security lapses in the company’s port in Dubai, as well as the UAE’s past terrorist ties. The reaction from politicians inside and outside of New York -- including Senators Hillary Clinton and Charles Schumer, Governor George Pataki, Mayor Michael Bloomberg, Representative Peter King (chairman of the House Homeland Security Committee, among others -- was swift and uniformly critical. All of the city’s major papers issued blistering editorials (“Dubya Jeopardy” said the Post; “Strangers at the Door” warned an Op-Ed in the Times ; “Anybody home?” asked the Daily News ). On the 24th, the Port Authority moved to block the sale in court.
Of course, as some have pointed out, Customs and Coast Guard officials would still be responsible for security at the ports, and the Dubai company would inherit the current workforce at the port, which is mainly American. Without specific complaints about security lapses, the overheated reaction can’t help but seem a bit xenophobic.
The real problem exposed by the port scandal is not that an Arab company is going to operate several American port facilities. In a way, this is almost beside the point. Rather, the problem for New York City is two-fold.
First, frighteningly little has been done since September 11th to secure port facilities in light of terrorist threats. Few dispute that the ports are a weakness in the world of homeland security, and experts estimate that only between four and six percent of shipping containers at major ports are inspected.
Second, the debate over Dubai Ports World has brought into sharp relief just how dependent New York City is on federal homeland security efforts. While the city depends on information and money from the feds, the visible manifestation of homeland security in New York City is the police department, the fire department, and other first responders. But no matter what those agencies do, New Yorkers are still dependent on Washington for much more than homeland security money. Given the performance of the Department of Homeland Security in responding to Hurricane Katrina, and the way it has bumbled through the process of approving the port sale, New Yorkers would be right to have their confidence shaken. But those failures also underscore the need for local elected officials to do more than lobby for money. Highlighting the stupidity of giving homeland security money to the Virgin Islands is well and good, but it should not be at the expense of trying to shape larger-scale homeland security policy.
David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator.Â