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Criminal Justice

Staying Out of Jail -- and in Upper Manhattan


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Every year, hundreds of inmates released from New York State prisons return to the streets of upper Manhattan. Many will not remain in the neighborhood for long. Instead, they will do something that puts them back behind bars again.

Despite the decline in crime over the past several years, upper Manhattan neighborhoods carry the heaviest burden when dealing with an aftermath of crime: reintegration of former offenders. Of all parolees returning to Manhattan, almost half go to upper Manhattan, according to the state Division of Parole. And in East Harlem between 119th Street and 126th Street, where more than 108,000 people live, 1 in 20 men have been incarcerated at some time, reported the Justice Mapping Center.

Spates of gun violence north of 96th and 110th Streets contribute to a murder rate quadruple that of the rest of Manhattan, the Upper Manhattan Reentry Task Force has found. Meanwhile, more than 45 percent of families in the 15th Congressional District, which includes Upper Manhattan, have a household income of less than $35,000.

For the average resident, the poverty and crime can add up to a tough situation. Parolees looking to start anew can face even greater hurdles as they try to avoid becoming become another recidivism statistic. Several programs, private and government-sponsored, have popped up uptown to address the needs of the formerly incarcerated. The goal: Keep them out of prison.

Jailhouse Learning

New York's jails and prisons offer various programs to inmates, including vocational and emotional, helping them adjust and prepare for life outside. Joseph Fargas tried that. Serving time for a gun charge, he joined classes on building maintenance, horticulture and anger management. But he got kicked out of each one for "acting crazy and starting fights," he said. Jail life seemed to foster more criminality.

"You put a person in a medium [and] the medium is a bunch of little kids running around acting stupid. I wasn't in that mind frame, but being in that medium, it makes you want to smack flames out of somebody," he said.

At Harlem Reentry Court, Braulio Rodriguez shows off photos of the floor covering skills he picked up in prison. Employment is one of his major obstacles in his transition to freedom.

Braulio Rodriguez, though, took advantage of classes in prison. He showed off the snapshots of his flooring work. In pictures, the retiled bathroom, faux fireplace and parquet floor look like they could be in any middle-class home. But, in reality, the floors were small spaces in upstate Cayuga prison set aside to teach inmates like Rodriguez how to install floors.

His opportunity to learn floor covering came, he said, after police caught him with cocaine. He said he was holding the drug for his brother, who was later deported to the Dominican Republic for his role in the crime. Rodriguez, from Washington Heights, spent 18 months in Rikers and 18 months in Cayuga.

"All my life I worked in the bread industry running routes," said Rodriguez, 28. "And when I went into jail they didn't have that," he said with a chuckle.

A dropout at 16, Rodriguez began academic classes in prison at only a fifth-grade level. He went on to get his GED in prison and also enrolled in a Cornell-sponsored course in international relations. His grade: B-.

Research by the Department of Correctional Services linked a decline in recidivism with college courses in prison. Despite that, the state does not budget funds to programs beyond high-school level. Of New York's 70 facilities, only 17 offer college programs. Only one program, in Wyoming prison, receives any kind of state support in the form of money. Federal grants, foundations, volunteers and private funding prop up the others.

Job Search

With or without an education, released inmates return to no jobs or housing and to the same settings that led them to crime. This all makes it difficult to change. About 49 percent of those arrested in upper Manhattan had previous convictions, higher than the rate in the rest of the borough, reported the Upper Manhattan Reentry Task Force, a partnership of public, private and community-based groups.

Even with his job training and course work, Rodriguez cannot find a job. Paroled in November 2008 and armed with his new floor-covering skills, Rodriguez is advertising his work on MySpace. Through the site, Rodriguez, the father of two, got a job redoing a bathroom. He also recently completed work on a kitchen, he said. But he hasn't found a steady, long-term job in floor covering, or anything else. He thinks it has something to do with his record.

"That question, have you been convicted of a crime? There should be a follow-up, like what did you do in prison? How has your life changed? And what skills did you develop in prison?"

To foster job creation, the state has offered financial incentives to employers. The Work Opportunity Tax Credit allows employers to claim up to $2,400 in tax credits when they hire former felons.

A federal-state incentive, the Federal Bonding Program, offers free insurance for six months to employers who hire one-time inmates. Some employers may think former convicts pose a business risk, that, for example, a person arrested for burglary could rob the business. The insurance protects the employers and gives the former prisoner a chance to work.

An incentive program helped Fragas. After he left Rikers on parole, he quickly found work in maintenance at a Brooklyn grocery store that receives incentives for hiring ex-convicts. Employer-employee benefit programs could help other parolees in upper Manhattan, where, the reentry task force found, they are more likely to be unemployed than parolees in other parts of the borough.

The task force also plans to educate local businesses about reentry, said Kate Krontiris, the group's coordinator and manager at the Harlem Community Justice Center. This would familiarize the owners with parolees and possibly lead to new hires.

Providing Help

Employment and housing often go hand-in-hand. Six percent of parolees in upper Manhattan lived in homeless shelters last year, according to the Division of Parole. Finding a New York apartment is hard for all, but former convicts face even more obstacles. The New York City Housing Authority "has the right to deny persons with criminal records residency in order to provide a safe environment for all residents," its Website says.

Without housing, the chance of a former convict reverting to crime increases, according to some experts.

In Harlem, Exodus Transitional Community helps former offenders find jobs, which can lead to settling into a better living situation. The group began as a vision from inside a prison. Now it is a faith-based non-profit recognized by former President George W. Bush for its work in reentry.

Exodus offers practical services, such as food, Internet access and resume-building workshops. It also pushes the former convicts to set goals, involving fitness, spiritual concerns and relationships, said Alvin Valentine, a former inmate and an Exodus contract coach. Of Exodus' 263 participants in 2008, 123 found jobs, according to the group's data.

Before coming to Exodus, "I never had a job a day in my life and never had a desire to," Valentine said. "They gave me hope."

Joseph Fargas must regularly meet with his parole officer at the Harlem Reentry Court as he reintegrates. "Right now, my focus is staying out of jail," he said.

Other organizations offer housing. The Fortune Society's Fortune Academy in West Harlem provides beds and food to homeless reentrants. Further uptown, Assemblymember Adriano Espaillat, whose district covers such neighborhoods as Washington Heights and Inwood, said he is considering halfway houses as an option for reentrants.

To reduce recidivism the city uses 311 to reach out to ex-offenders. One call to the city's free line provides information on organizations that offer reentry services, including counseling, job training and housing.

The Lure of the Street

Jobs and housing do not exist in a vacuum. Some say the environments that lead to incarceration must be addressed, too. Upper Manhattan residents cite a slew of deep-seated issues, including gangs, drugs and poverty, that lead to crime in their neighborhoods. Others attribute high parolee rates to heavy police involvement in the mostly minority neighborhoods uptown.

Some former inmates tell tales of poor education and broken relationships, which led to bad choices and incarceration. Fargas used to run the streets of East Harlem toting handguns and hustling. "I was inspired by fast money, fast life," he said.

His first arrest was for assault -- at 13. Fargas' last arrest was for possession of a German Luger, he said. Now 21, Fargas said he didn't know his father growing up, so he sought comfort in the streets. He joined the Crips gang. He smoked pot. He was shot. He was stabbed. He almost died, he said. That was his life -- a dangerous one.

"I saw people gang banging, I gang banged. I saw people shooting, I shot. I saw people selling drugs, I sold drugs," he said.

Fargas' tale resembles many: Children and teens, looking for a connection to someone, wind up on the streets getting their hands dirty.

Working with youth can play a big role in keeping kids from getting involved in crime. Espaillat's office participates in the city's summer job youth program and supports a myriad of after-school programs in his district.

In his district, where gang violence is emerging as a serious problem, Espaillat said he wants to get to kids before they get in the gangs. In collaboration with police, he said his office talks with families about how to recognize the signs that their children are getting involved in a violent gang.

At Exodus, volunteers mentor children of inmates to help them develop life skills and prevent their chances of repeating the criminal cycle and going to prison themselves. "There is a lot of data to suggest that the absence of one's parent increases risk for some -- not all -- kids of the incarcerated," wrote Krontiris.

Fargas said he's not interested in the gang life anymore. If he falters back into a life of crime and commits a felony, depending on the severity and circumstances, he's facing at least two years and at most life in prison. So, Fargas has a job, abides by the conditions of his parole and regularly appears in Harlem Reentry Court. Fargas says his mom is proud of his turnaround.

The Parole Rules

Some reentrants find the turnaround more difficult. Of offenders released in 2004, almost four in 10 returned to prison within three years. More than 28 percent of the recidivists were sent back because of a parole violation, according to the Division of Criminal Justice Services.

An upper Manhattan parole officer, who asked not to be identified, said she wouldn't violate a parolee for a minor incident, such as a traffic ticket or being approached by a police officer. Instead, she said, she sees her job as balancing the legal and social work aspects of managing her parolees. She said she recommends them to educational or substance abuse programs and advises them on how they can best succeed in their transition.

She also views her job as a way to protect the community. And when a parolee repeatedly misses curfew or moves without notifying her, she has to put her foot down.

"At the point where he refuses to listen, I know I care more about his freedom than he does," she said. The 11-year veteran added, "They're not all trying to be good. Some people are used to living their life the way they have. They don't see anything better."

Fargas said he's fine with abiding by the conditions of his parole, but one mandate does bother him. "How can you tell me I can't be around my co-defendant when he lives in the same building as me?" he said. "We grew up together."

New York's Gun Battle


Photo (cc) .::LINUZ::.

Ten-year-old Naiesha Pearson was happily playing with other children at a Bronx playground during a Labor Day picnic on the day a bullet meant for someone else tore into her chest. Two men in their early 20s had gotten into an argument earlier in the day, and one of them decided to resolve it with gunfire. Naiesha was struck by one of the bullets. Her grandmother fainted, and fights broke out as onlookers tried to attack the shooter. Naiesha was taken to the Lincoln Medical and Mental Health Center where she was pronounced dead. Leonardo D'Eaza, the target of the shooting, was brought to the same hospital in critical condition; he survived.

Reporters quickly latched onto the story. "There was a lot of media hoopla afterward but they were quickly on to the next story," says Gloria Cruz, Naiesha's aunt. "It seemed like nobody cared, like there was no support."

That feeling of emptiness led Cruz to call New Yorkers Against Gun Violence. Cruz asked if they had a chapter in the Bronx, and when she found out they didn't, she started one.

Earlier this month, Cruz stood with hundreds of mothers and other relatives who had lost family members to gun violence. The people who marched in the rally represent the everyday fallout from the illegal guns that are prevalent throughout New York City's underprivileged neighborhoods.

New York City has some of the strictest gun laws in the nation, and, under Mayor Michael Bloomberg, the police department has worked to strictly enforce them. Despite that in communities like parts of the Bronx gunshots regularly claim the lives of innocent bystanders as illegal weapons continue to pour into the city. If the city is to further reduce gun violence, it will need help from the state and federal government.

That assistance has often proved fleeting at best. New Yorkers Against Gun Violence executive director Jackie Hilly said that for many of New York State's politicians the issue of controlling illegal guns and monitoring who is allowed to carry a gun has become one they deal with "from tragedy to tragedy." "Their attention is so episodic that we don't get strong policy," says Hilly. "To get solid policy we need solid leadership."

Bloomberg's Crusade

Hilly says that the most consistent leadership on gun issues comes from Bloomberg and Mayors Against Illegal Guns, the organization he formed with Boston Mayor Thomas Menino. The group boasts 340 mayors from across the country who want to stop the flow of illegal guns.

Bloomberg's push to rid New York City of illegal guns has seen results. The number of guns recovered from crime scenes in the city dropped by 13 percent from last year. The number of people shot to death dropped from 347 in 2007 to 292 in 2008. Overall, murders increased from 2007 to 2008, but only due to an increase in crimes committed with knives.

Besides law enforcement initiatives that target high crime areas and gun buy-back programs, New York City has moved to tighten its already strict gun laws. In 2006 the City Council passed legislation that established a gun offender registry, which allowed an individual to purchase only one handgun in a 90-day period, and required gun dealers to inspect their inventory and report inventory losses to the police twice a year. Pistol permits in New York City, unlike those in most other localities in the state, expire every three years and must be renewed.

While this sort of action might have drawn massive outcry upstate, these measures were relatively uncontroversial.

Bloomberg's fight against guns has taken him farther afield. Concerned about the flow of illegal guns into the city in 2006, the mayor authorized private detectives to go to Pennsylvania, Virginia, Georgia, Ohio and South Carolina to see if dealers illegally evaded gun regulations. In particular, the detectives were investigating whether dealers knowingly took part in so-called "straw purchases," where one person fills out a gun background check but then gives the gun to another person.

As a result of the sting, the city filed lawsuits against 27 gun dealers. Bloomberg's strategy ruffled the feathers of Virginia politicians, who moved to pass legislation to ban this type of investigation, and of gun enthusiasts, who held gun raffles and giveaways in Bloomberg's honor.

Bloomberg's criminal justice coordinator, John Feinblatt, said the lawsuits "ended in settlements across the board." Dealers agreed to have gun sales videotaped and to submit to a database that would flag purchases made by someone who had previously purchased a firearm that was later used in a crime.

Critics say Bloomberg has been successful in his fight against illegal guns at the expense of civil rights. The National Rifle Association has dubbed Bloomberg an "evangelist for the nanny state" and charges that his actions infringe on the Second Amendment that guarantees the right to bear arms. Further, the group says, his support for databases and checks violate a citizen's right to privacy. They say that Bloomberg is trying to extend New York City style gun control to other localities with different attitudes about firearms.

"I think this is mostly an ego thing for him," said Jacob Rieper, vice president of legislative and political affairs for the New York State Rifle and Pistol Association. "If gun control really worked, New York City would be a utopia. And it's not."

But criticism hasn't stopped Bloomberg. This year, he financed a commercial that ran in Virginia criticizing the presumptive Republican candidate for governor, Robert McDonnell, for supporting what the mayor calls a loophole in Virginia law that allows private dealers to sell guns without background checks. The commercial featured the brother of a woman who was killed in the Virginia Tech massacre.

Focusing on the State

Feinblatt says that Bloomberg also has focused on implementing changes in New York state law. This is in keeping with a 2008 study by the Legal Community Against Violence that said, "In the absence of comprehensive federal legislation, it is up to state and local governments to adopt policies to prevent gun violence." The study found state laws to be effective in addressing gun issues that federal law does not, "and can act as a catalyst for the broader reform our country needs."

In New York, though, gun laws tend to be more controversial at the state than the city level. This became apparent earlier this year when Gov. David Paterson chose then Rep. Kirsten Gillibrand to fill the Senate seat left vacant by Hillary Clinton. Gillibrand, a Blue Dog Democrat from a rural upstate district, sported an A rating from the National Rifle Association. Gillibrand's stance drew outcry from many New York City and suburban representatives who felt she was insensitive to the effects of gun violence on their constituents. The conflict highlighted the divide between upstate and downstate New York on issues of gun law.

On April 3, though, the conversation shifted when Jiverly Wong walked into the American Civic Association in Binghamton and opened fire, killing 13 people and spitting 99 shots from his two pistols in just minutes. The State Assembly moved quickly to pass legislation proponents say will help police prevent and investigate gun crime.

"They always have to wait until they have some tragedy to come out to exploit to push their agenda," says Rieper.

Identifying Ammo

The package before the legislature includes a bill that requires any semiautomatic pistol delivered or manufactured by a gun dealer in New York be capable of microstamping ammunition by 2011. Microstamping marks bullets fired from semiautomatic weapons with the information of the gun that fired it.

The microstamping bill, which was sponsored in the Assembly by Assemblywoman Michelle Schimel and in the Senate by Sen. Eric Schneiderman is the Bloomberg's number one gun legislation priority, according to Feinblatt. "What do criminals leave behind at the crime scene?" asks Feinblatt, "Gun casings."

Legislators have taken a cue from Bloomberg by insisting their legislation will help fight crime.

Schimel said that microstamping would give police the tools they need to solve gun crimes, 40 percent of which go unsolved every year. "Microstamping is a crime prevention issue. It is not gun control. This is evidence-based crime prevention," she said. The legislation has the support of a wide range of law enforcement groups including 70 police and sheriff departments across the state.

But opponents say that microstamping is unproven. "This is basically being pushed by one small company that hasn't exactly perfected it yet," said Rieper. But even if it did work perfectly, he said, "All it is going to do is point police back to the person who originally bought the gun. It could have been sold or stolen. It's not going to prove anything."

Opponents cite a study by the University of California at Davis that shows that the technology only works 54 percent of the time. They also complain that microstamping might negatively influence gun owners' ability to resell guns that are not equipped with the technology.

Limits on Licenses

Another bill would require that state handgun owners renew their licenses every five years. While pistol permits in New York City expire after three years, in some places in the state licenses last for a lifetime.

Some critics say the bill is a money grab designed to get gun owners to cough up licensing fees every five years. But Schimel, who is from Nassau County, disagrees. "I called the pistol permit division the other day and said, 'This is a money grab, right?'" Schimel said. "They said, 'No, we really want to know who has the guns out there.' They believe that it works."

According to Rieper, the measure aims to deter gun ownership and will do little to make the public safer. "How many times does a licensed hand gun owner commit crimes in New York State?" asks Rieper, "I bet it is less than the number of state senators who have right now."

Assemblywoman Amy Paulin, who sponsored the bill in the Assembly, and Schimel both say that, just as drivers, physical therapists and a wide range of other license holders have to renew their permits handgun owners too should have to regularly demonstrate they still meet the requirements to hold their licenses.

To bolster their arguments for license renewal, advocates point to Jiverly Wong. In 1997, he received a license for the gun he used in Binghamton. During the years since, many who knew him said he displayed increasing signs of instability. Advocates insist that, if Wong had been required to relicense his handgun, authorities might have noticed his condition. Under the proposed new law, owners would lose their license if they moved out of state and would require the county that issued the license to track down any guns that are no longer licensed. Wong moved to California in 2001, only to later return to New York.

The gun legislation is now pending before the Senate, where Democrats have a narrow majority. While supporters tout them up as crime prevention initiatives, gun rights activists seek to turn the conversation into a discussion of upstate versus downstate values.

A State Divided?

Tom King, president of the New York State Rifle and Pistol Association, posts a blog about gun rights on the website of the Albany Times Union. "Before I begin, let me define Upstate and Downstate," wrote King in February. "Upstate includes the entire state except the five boroughs and anyone who embraces the traditional values of firearms ownership, hunting, shooting and fishing. Downstate is everywhere/everyone else."

King decried downstate's influence on statewide gun policy, noting New York City has its own gun laws. "We are not Downstate sheeple that need to be protected from violence, the weather or ourselves. We are descended from strong stock that came to this country to escape oppression," he continued. "This proclivity for the blood sports is a part of our nature," he said regarding hunting. King did not return calls for comment.

Feinblatt takes exception to the idea that gun legislation pits upstate values vs. downstate ones. "It isn't an urban issue, it isn't just a suburban issue and it isn't just a rural issue," he said. Mayors from upstate cities like Utica, Syracuse and Albany belong to Mayors Against Illegal Guns. And upstate cities like Albany and Buffalo struggle with gun violence.

This year's budget contains $4 million for a program called Operation SNUG that is specifically designed to target gun and gang violence in Buffalo, Rochester, Syracuse, Albany, Westchester County and New York City. "In cities across the state, our children are dying at the hands of gun violence, but through our commitment to SNUG, we can put a stop to that deadly trend now," said Senate Majority Leader Malcolm Smith during the unveiling of the program earlier this year.

Operation SNUG, modeled after Chicago's Cease Fire gun violence prevention program, focuses on direct intervention in communities where disputes all too often lead to shootings.

Passing further gun measures, though, remains a challenge. Austin Shafran, a spokesman for Smith, said that Smith supports the microstamping and permit renewal bills because, "they do not infringe on anyone's Second Amendment rights." But with a slim majority and a few rural Democrats who might oppose further limits on guns, Democrats will probably need the support of some Republicans to pass the measures. They say they have been reaching out not only to suburban and urban Republicans but also to rural legislators. They admit they do not know how successful these efforts will be.

Schimel, though, is confident. "I wouldn't be working as hard as I am if I didn't think it was a go," said Schimel. "Eric and I have not stopped since the legislation passed in the Assembly and we won't until we see them on the governor's desk."

Hilly and Cruz say they expect the specter of the Binghamton massacre to motivate politicians to find common ground. "It would be a real shame if our governor and Legislature didn't take action after what happened in Binghamton," says Hilly.

Meanwhile in Washington

Since 2006, Mayors Against Illegal Guns have been putting pressure on Washington to change laws they say restrict law enforcement's ability to stem the flow of illegal guns and prosecute dealers. Feinblatt said the issue has particular resonance for mayors. "Who are the people that get the calls at 3 a.m. that are going to break someone's heart?" Feinblatt asked. "It's the mayors."

The organization has focused on repealing the Tiahrt amendments, which put restrictions on how law enforcement can use the Bureau of Alcohol, Tobacco and Firearms gun-tracing database. The amendments also limit whom officers can share gun tracing data with and stops the ATF from requiring gun dealers to carry out inspections to insure no guns "go missing."

The National Rifle Association maintains that much of the information would not help law enforcement and can be misleading.

First introduced in 2003, the amendment is attached yearly to spending bills and for years became increasingly restrictive. In 2008, though, gun control advocates scored a victory by enacting a measure that allowed law enforcement to share gun trace data in related cases. It also gave the Bureau of Alcohol, Tobacco and Firearms some limited ability to release statistical reports using gun trace data to analyze firearm tracking.

This year advocates hoped that they might finally abolish the Tiahrt amendment completely. The Obama administration had said it supported doing just that.

Fear of Control

The administration's stance on gun control had sparked fear among gun enthusiasts. Following Barack Obama's election, gun rights groups and gun enthusiasts across the country were reportedly so nervous about the administration that they ran out to buy all the ammo and guns they could. Ammo became scarce in some states, and gun sales spiked.

For years polls showed that Americans support stricter gun laws. A 2001 Gallup poll, for example, put support for stricter laws at 54 percent. But a recent Opinion Research Corp. poll found only 39 percent of respondents backed stricter gun laws. Pundits say they think the drop can be tied to fears about the Obama administration's stance on guns as well as to a decline in crime.

But so far, it appears gun groups need not have worried. Congress kept the Tiahrt amendments relatively intact this year except for a change that allows state and local police departments to access the gun trace data when investigating individual crimes.

Bloomberg welcomed that change, calling it "an important step forward that will make communities across America safer." But Hilly said that the amendments make it illegal for law enforcement to share trace data with the public -- including government officials.

The Obama administration has already backed off on the reinstatement of the assault weapons ban that the Bush administration let expire in 2004. The new administration originally said it would push for reinstatement of the ban, but last month recanted, saying that the political cost of fighting the powerful gun lobby was too high. During a meeting in April with Mexican President Felipe Calderon, Obama acknowledged his administration favored the ban but admitted, "I think none of us are under any illusion that reinstating the ban would be easy."

For Cruz the issue of assault weapons is not political, it is far more visceral. She says a culture of retaliation has developed among young men in the Bronx who settle disputes by picking up a gun. "You have 14-year-old kids with AK47s, kids with semi automatics."

Cruz says she knows there will inevitably be more gun violence tragedies splashed across the front page while politicians wrangle over how to address the issue. But Cruz has faith that progress will be made.

"We wouldn't have the Brady laws if Jim Brady hadn't been shot with Reagan," said the woman who refuses to let her niece's death be in vain. "Terrible events can give birth to better things."

The End of the Rockefeller Era


Gotham Gazette image by Ya-Hsuan Huang

Thirty-five years after New York's criminal justice system was invaded by a misguided and counterproductive legislative scheme to fight the "war on drugs," there is finally some relief. The statutes known as the "Rockefeller Drug Laws," enacted in 1973 when Nelson A. Rockefeller was governor, have long been called draconian, the harshest in the nation and the end of judicial independence. They were based on long mandatory prison terms even in nonviolent cases involving small amounts of drugs, and judges were not permitted to impose sentences they believed better fit the crime and the accused. [For Emily Jane Goodman's essay on the Rockefeller drug laws, see Huffington Post.]

Now, after long and unprecedented organizing by community groups and criminal justice advocates, along with an aggressive push by elected officials and judges, some of the most onerous and destructive provisions have been removed or amended.

The Rockefeller Drug Law amendments, which were signed into law by Gov. David Paterson earlier this month, reflect a changing philosophy and approach to prosecuting nonviolent drug offenses in this state, especially first offenses, and even incorporate the view that drug addiction is a health issue as well as a legal problem.

Sen. Eric Schneiderman, who introduced the reform bill in the State Senate said, "New Yorkers have been clamoring for changes to these laws for decades and after careful deliberation, we finally achieved significant reform. By expanding the ability of judges to sentence drug-addicted individuals convicted of non-violent drug crimes to treatment, New York State is sending a message that there is a better way than our society's pattern of under-treating and over-incarcerating."

The goal of reform has always been the elimination of mandatory sentences, which forced judges to impose prison terms that ruined more lives than they saved, occasionally breaking the judge's heart at the same time. Some Supreme Court judges have cried as they were required to sentence a mother -- let's say, a first time offender -- to three years to life for carrying a package for someone else who may have misled her as to the contents. Any judicial departures from the mandatory minimums were swiftly reversed by appellate courts.

Now, judges can have that discretion.

The Fine Print

Under the revisions, a typical first offense possession case can result in a sentence of between one and two and a half years or an alternative sentence focused on drug treatment. If the accused has a prior record for a non-violent offense, the maximum becomes four years with treatment alternatives still possible depending on the details of the record. For defendants who previously committed violent crimes, the sentences increase and alternatives are eliminated. All of these sentences require intensive supervision for long periods of time.

The revisions represent significant changes to the sentencing scheme, in the approach to alternatives to incarceration, treatment and supervision. Now judges have the discretion to impose appropriate sentences, including drug treatment programs, without first obtaining the permission of district attorneys. Previously, district attorneys insisted on long periods of incarceration even when a defendant has an opportunity to be rescued from a life of crime by going to treatment instead of a cell.

The amended law provides a mechanism to divert certain eligible defendants into drug treatment. To be eligible, defendants must be non-violent, first offenders (sometimes second), who are not accused of the most serious drug felonies. The court may require the defendant to plead guilty prior to being referred to a community-based treatment program. An individual who fails to complete the program and abide by other conditions will then have to face the consequences of the guilty plea. A defendant who meets all the requirements may then be able to withdraw the guilty plea.

Judge Laura Safer-Espinoza, who presides in Bronx Treatment Court, which has functioned with the district attorney's approval, said such an approach has proved effective. "Over the last 10 years," she said, "I have seen over a thousand clients 'graduate' from our program. They have been drug free, compliant with treatment and working full time, enrolled in job training or back in school. Extending the treatment option to break the terrible cycle of drug abuse and crime is not 'soft on crime policy.' Defendants must plead guilty, undergo continuous monitoring by the court, and face serious penalties and higher sentences for non-compliance."

While the Rockefeller laws may have been directed at "drug kingpins," small time users -- most of whom are poor, and black or Hispanic -- felt the brunt of their effect. The reforms do not protect the big-time dealers or major traffickers, who can still be sentenced to 25 years to life. Cases involving violence, or defendants with records, violent or not, can still face heavy sentences.

Not the End of Rockefeller

For the last three and a half decades, when it came to drug offenses, the scales of justice have not represented our adversary system, with a prosecutor on one side, defense on the other and a judge in the middle. The shift, according to Gabriel Sayegh of the Drug Policy Alliance Network, came as prosecutors convinced the state's leaders "that judges are entirely incapable or incompetent to fashion appropriate sentences or actually do what their titles imply they should do - judge."

Even with the reforms signed, some still hold to that philosophy.

Councilmember Peter Vallone, Jr., a former assistant district attorney in Manhattan, wrote in the New York Post that the reform would turn New York into a "violent drug bazaar."

Daniel M. Donovan, the district attorney of Staten Island and the president of the state District Attorneys Association, told the New York Law Journal: "What you are doing is you're cutting out an essential part of the process, the district attorneys. And we are the ones that are elected to protect the public safety. And now we have been cut out of the process that helps insure that public safety."

Similarly, some prosecutors and legislators who oppose judicial discretion argue that New York City judges are not tough enough in sentencing drug users.

Beyond the criticism, some officials are still trying to work out how these reforms will affect the state's current prison population.

Individuals who were arrested before the law changed will, if convicted, be sentenced under the new law, and certain convicted felons can apply for re-sentencing. Some who are now in prison may also be able to apply for re-sentencing.

Elsewhere, even those who applaud the legislators and Paterson argue many addicts still will not qualify for treatment and rehabilitation. According to Donna Lieberman of the New York Civil Liberties Union, the changes "restore an important measure of common sense and rationality to our drug laws. But there is more work to be done in the future to restore fundamental justice and fairness to our criminal justice system."

It is too soon to know exactly how the details will work in drug treatment courts and state Supreme Court, but it is clear that we can say goodbye to some of the most egregious inequities of the old law.



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