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Criminal Justice

The Tough Battle to Repeal Tough Drug Laws


Photo (cc) llimllib

"This is the year to reform the Rockefeller drug laws," Gov. David Paterson has just finished saying Tuesday morning in Albany. He stands before a crowd of hundreds as a man with shaggy gray hair approaches him with a stack of signatures. Paterson shakes the man's hand and smiles. One by one advocates from across the state present the governor with piles of petitions and declare their support for the "full repeal of the Rockefeller Drug laws," New York's harsh rules on sentencing of drug offenders. Advocates are excited to have Paterson listening to them.

Assembly Speaker Sheldon Silver and Senate Majority Leader Malcolm Smith also have dropped by to support the cause. But the truth is, Paterson and these advocates are talking about two different things. The advocates, who carry a total of 30,000 signatures, are demanding full repeal of the Rockefeller drug laws, while Paterson is advocating changing the laws.

This Tuesday, hundreds of drug reform advocates descended on Albany, and, in sharp contrast from their chilly reception in years past, found the governor, Senate majority leader and Assembly Speaker all waiting to greet them and listen to their concerns.

The Assembly recently passed a Rockefeller drug law reform bill that emphasizes the importance of treatment over incarceration and restores a hefty amount of judicial discretion in the sentencing of drug cases. It is what New York State drug reform advocates have always wanted -- sort of.

What the Assembly Bill Does Not Do

Advocates of major changes to New York's drug laws are walking a thin line between jubilation and disappointment these days. The Assembly's legislation would make about 50 percent to 60 percent of currently incarcerated offenders eligible for treatment instead of incarceration. It would increase funding for drug rehabilitation programs and community-based alternatives to prison. But it does not restore judges' discretion in a number of cases.

Offenders subject to mandatory prison sentences would include people who sell more than a half ounce or possess more than four ounces of a hard drug; people who have a violent felony conviction in the last 10 years; and adults who sell drugs to minors.

Advocates stress that they object not to such limits but to the fact that the Assembly bill leaves mandatory sentences intact and still judges offenders by the amount of narcotics in their possession at the time of their arrest. Reform proponents want to see offenders judged on the individual's prior record and what his or her role in the transaction was. They say it is important to differentiate between an addict selling drugs to maintain a habit and a higher-level drug dealer.

Politicians, though, find it difficult to do away with mandatory minimum sentences on offenders whose crimes seem serious because politicians don't want to be seen as soft on criminals.

In other words, the Assembly bill is not full repeal. "The public needs to know that this is not what we have been fighting for," said Caitlin Dunklee of the Drop the Rock Campaign. She estimated the Assembly legislation would leave 50 percent of future drug cases subject to the constraints of mandatory sentencing.

In this, there is a sense of deja vu. Dunklee said that in 2004 and 2005, when the legislature made some reforms to the drug laws, "it was painted as full repeal. People stopped caring and we continued to have these harsh laws on the book."

Whatever its shortcomings, though, the Assembly bill might not become law even though Democrats control both houses of the legislature and the governor's mansion. This presents a bit of a quandary for those advocating repeal. They have to push the Senate to act on a bill similar to the Assembly's and at the same time remind legislators that this is not the end in the fight to repeal the Rockefeller drug laws.

"The stars are the most favorably aligned they ever have been, "said Robert Gangi, executive director of the Correctional Association of New York. "We have a Democratic governor, the Democrats control the Senate, and we have the fiscal crisis. Because in the end this is an issue of money."

The Senate's Turn

Insiders say Silver has rushed forward on progressive bills such as drug reform to earn himself political capital and reaffirm his base after facing two primary challengers last year, all the while knowing that Smith would not have the support to pass them in the Senate.

Gangi admitted that there is a lot of opposition to the Assembly reform bill in the Senate. "We hear it is not just Republicans but blue dog Democrats," he explained.

Democratic Sen. Craig Johnson of Port Washington, for one, has made it clear that he has "significant reservations" about the Assembly's reform bill, although Johnson's spokesperson, Rich Azzopardi, said that Johnson "is not prepared to negotiate those reservations in the media."

Rather than try to hash out the differences between his conference members on an individual reform bill, Smith has decided to make Rockefeller reforms part of the Senate budget package. Smith told the gathered advocates on Tuesday, "I want to assure you all that what we are going to do, in this year, in this budget, is reform the Rockefeller Drug Laws."

Azzopardi said Smith's decision to move the drug reform legislation into the budget process makes "a certain amount of sense, as both sides of the debate have economic implications."

Advocates for Rockefeller reform and repeal say that changing the drug laws and allowing judge's to send offenders to treatment rather than jail will drastically reduce the amount the state spends on incarceration. Opponents say sending offenders to treatment will be a financial burden on the state.

Republican opponents of Rockefeller reform do not find Smith's decision as appealing. Republican Sen. Frank Padavan of Queens told the Post, "I think we ought to be very careful when we start talking about putting 2,000 drug pushers on the street. That's outrageous to put in the budget. It's the worst form of political chicanery."

Paterson's Concerns

Uncertainty in the Senate is not the only obstacle standing in the way of the Assembly's bill becoming law; advocates are growing ever more concerned that the man who started the discussion of drug law reform this year, mentioning it in his State of the State address, might be wavering in his support. They say that Paterson's representatives at the negotiating table want to scale back parts of the Assembly's bill. One of the sticking points apparently is restoring a judge's discretion in drug cases where the offender has committed a second felony.

Advocates say that Paterson or his staff are posturing in preparation for the 2010 gubernatorial campaign.

Paterson's position has indeed changed since he was Senate minority leader in 2004. Back then, Paterson proposed drug law reform that would have included restoring judicial discretion for all second-felony drug offenders convicted of B-E level felonies (felonies are graded from A to E by their level of seriousness) as long as they did not have a violent offense in their history.

A spokesperson for Paterson said, "On the biggest issue the governor agrees on the fact that judges should be able to exercise discretion on non-violent felonies. The governor has put together a working draft bill to discuss with the Assembly and Senate, and they are working on their differences." The spokesperson said that disagreements exist over mandatory minimum sentences and to what extent any changes should be retroactive.

Paterson’s office reportedly is concernedthat making the law retroactive would be prohibitively expensive because of the number of resentencing petitions that would be filed.

The Next Moves

In the end, if Smith's gambit pays off and the Senate moves on reforms, advocates say they will celebrate but at the same time know that there is more to do. They say they have known they were in a battle for "incremental change" from the start. In their opinion there are a lot of good aspects to the Assembly bill. They just worry that another time where the political stars align may not come along soon.

Albany County District Attorney David Soares, who has been a staunch critic of the Rockefeller drug laws, said there is one gigantic benefit of the Assembly bill if it should pass: funding for alternative treatments. "The criminal justice system is open 24 hours a day," said Soares. "It's a shame people have to come here to get the help they need. But because of this reform less people will have to go through the criminal justice system to get that help."

Court Upholds a Hole in 'Safety Net'


Photo (cc) Tracy Collins
A woman at an anti-eviction block party in Bergen Hill, Brooklyn

The New York Court of Appeals has ended years of litigation with its recent decision that the state's Safety Net Assistance program does not assure that shelter allowances it provides will be adequate to rent a home and that the allowances cannot be challenged by benefit recipients.

This ruling therefore makes a clear distinction between the Family Assistance program, which guarantees an "adequate" allowance for shelter and the Safety Net program, which does not.

A Struggle to Pay the Rent

The plaintiffs in the current lawsuit, Doris Brownley and Janee Nelson, both single mothers, commenced the lawsuit in 2002. They were acting on their own behalf and for all families with children who receive Safety Net Assistance benefits but who are faced with eviction from their homes because the New York City shelter allowance will not cover their rent. In addition, they do not qualify for a rent supplement under other programs or qualify for a supplement that still does not meet their needs. In other words, the rent contributions they receive from Safety Net are less than their rent, leaving them to face eviction and the risk that their children will be placed in foster care.

Doris Brownley and her young son lived in Brooklyn in a one-bedroom rent stabilized apartment. The rent was $879.75 per month when the current round of litigation began. She received public assistance until she found a job and also began attending college. However, after an accident and surgery she lost her job and reapplied for welfare. In the meantime, she fell behind in her rent, and the Safety Net program in which she was enrolled paid only partial rent to her landlord.

Her landlord initiated a non-payment proceeding against Brownley who was unable to pay the balance of $579.75 but once in Housing Court agreed, unrealistically, to pay a judgment of $5,050 for arrears within a month.

Janee Nelson lived in the Bronx with her then-four year old son, her stepfather and three young stepsisters in a three-bedroom rent stabilized apartment with a rent of $1,401. Nelson, too, had lost her job and was attending school. With various benefits to members of the household they still fell $401 short on their rent. In March 2004, a non-payment proceeding was brought in Housing Court where, to forestall eviction, like Brownley, she agreed to pay within a very short time $4,055, including arrears and fees, which she did not have and could not obtain.

Allowances for Shelter

Eligible individuals who receive public assistance for housing costs under the Family Assistance program are limited to the five-year period of "welfare" that a person may receive in her lifetime, regardless of need. This is a combined federal and state program that followed the enactment of the Clinton administration's Personal Responsibility and Work Reconciliation Act of 1996. In the wake of the federal mandate to "eliminate welfare as we know it," New York enacted the Family Assistance program for families with dependent minor children, replacing Aid to Families with Dependent Children. After the five years, eligible people may seek the protection of Safety Net, which provides shelter assistance.

Under the Family Assistance program and a case begun two decades ago in the late eighties, and well known as "Jiggetts," funding must be adequate to provide a family with a home. Jiggetts, which was also ultimately decided by the Court of Appeals, held that this state has a duty to establish shelter allowances for Family Assistance recipients that bear a reasonable relationship to the cost of housing in New York City. With that mandate, "allowances shall provide for the support, maintenance and needs of one or both parents if in need and in the home and for the support, maintenance and needs of the other relative if he or she is without sufficient means of support, provided such parent, parents and relatives are not receiving federal supplemental security income payments and/or additional state payments for which they are eligible." In Jiggetts, the courts found in 1988 that shelter allowances did not bear a reasonable relation to the cost of housing in New York City, and new shelter allowances were established.

The more recent court case sought to extend that reasoning to the Safety Net assistance. The court ruled, however, that while Safety Net may be available after the 60-month limit on Family Assistance runs out, it does not have the Jiggetts provision and does not have to be adequate to pay for a reasonable home. Plaintiffs had attempted to intervene in the Jiggetts lawsuit, but were directed to commence their own court action, which was dismissed by the Court of Appeals.

Judge Victoria Graffeo, writing for the entire court and upholding the lower courts, distinguished the two relevant programs. Family Assistance, she wrote, is for the explicit purpose of enabling a family to "raise a needy child properly, having regard for the physical, mental and moral well-being of such child," in light of New York's commitment to the protection of children and the maintenance of children in the home. Safety Net Assistance, however, she continued, "places no restriction on how long a person is eligible to receive ... benefits, applies more broadly and is not contingent upon the presence of children in the household."

Thus, the state's highest court concluded that the adequacy requirement does not apply outside Family Assistance and that that was the intent of the legislature. "It was," the opinion said, "the burden of the legislative and executive branches of government to weigh 'the intractable economic, social and even philosophical problems present by public welfare assistance programs.'"

The court dismissed the plaintiffs' arguments of unconstitutionality saying, "there is no right to a constitutionally prescribed minimum shelter allowance since it is the prerogative of the legislature to determine who is 'needy' and allocate the public dollar accordingly."

According to Scott Rosenberg of the Legal Aid Society, counsel for the plaintiffs, both Brownley and Nelson lost their apartments when they could not pay the rent. No other information was available about them or their families.

The State of New York was represented by Oren Zeve of the office of Attorney General Andrew Cuomo. A brief in support of the tenants was submitted by several public interests groups including Community Service Society of New York.

Emily Jane Goodman is a New York State Supreme Court Justice

Trying -- Again -- to Change the Drug Laws


Trying Again to Change The Drug laws
Photo (c) >Sahu. Used with permission.

For decades, activists have pressed leaders in New York State to repeal laws that mandate long sentences for drug offenders. The legislature has made some changes to the so-called Rockefeller drug laws, but advocates have considered those efforts half-hearted. Now, with a new Democratic majority in the state Senate, advocates say the time is right for a large-scale overhaul, if not total repeal of the laws.

These advocates have powerful allies. Gov. David Paterson took up the issue in his State of the State message, and Assembly Speaker Sheldon Silver has issued a position paper calling for a major overhaul

"We are feeling extremely confident" about the prospect of enacting Rockefeller reform this year, said Gabriel Sayegh of the Drug Policy Alliance. Then he hedged, "Well, cautiously optimistic.

Senate Democrats, the people who are supposed to make major changes possible this year, have yet to take a firm stand on the issue, and a recent report by the State Commission on Sentencing Reform does not endorse a full overhaul but instead calls for smaller changes to the drug laws.

Where They Stand

Since their enactment in 1973, the Rockefeller drug laws have mandated minimum sentences for drug offenses based strictly on the amount of narcotics involved in the case. They do not take into consideration circumstances such as whether this is the offender's first arrest, and they do not consider the defendant's standing in their community. Before the 2004 Drug Law Reform Act, convictions for carrying four ounces -- or selling two -- of cocaine or heroin could require the same sentence as a murder conviction. The laws were designed to punish "king pin" drug dealers but tend to punish addicts and users.

"Few initiatives have failed as badly and for as long as the Rockefeller Drug Laws," Paterson said in his State of the State address.

The laws have been tweaked, but according to Paterson and others still do not give judges enough discretion when it comes to sentencing. This year the push is to completely restore judges' discretion. Silver's position paper for example, effectively agreed with critics who say the laws are oppressive, judges should be allowed to sentence at their discretion, and drug addiction should be treated not as a crime but as a public health issue.

The Senate, though, remains the obstacle to adopting such changes. The Republicans, who blocked such initiatives in the past, are gone, and the newly empowered Democrats are dragging their feet. Depending on whom you listen to, that could be because they are still finding their bearings and getting organized, or because, faced with an extremely narrow majority and some conservative Democrats whose support he needs, Senate Majority Leader Malcolm Smith will not take a hard stand on the issue.

According to Assemblymember Jeffrion Aubry, who has been a staunch supporter of Rockefeller reform for over a decade, "The Senate is still finding its way. They have had no lead time to take over the majority, and with such a thin majority they are going to take it issue by issue."

The Rockefeller drug laws and mandatory minimum sentencing do have some adamant -- and influential -- supporters, including the states' district attorneys. A number of district attorneys and "tough on crime" legislators feel that the laws give them more tools to ensure that offenders are equally punished. Some believe harsh penalties will discourage dealers or users.

Lately the York State District Attorney's Association has supported revamping the laws to some extent. Instead of full repeal, representatives of the association have advocated reviewing each sentencing guideline to determine if it is fair. This could reduce harsh sentences in some cases but would not allow judges to consider special or extenuating circumstances. And it would not move drug treatment out of the hands of the criminal justice system.

Ironically one of the harshest critics of the Rockefeller drug laws is a district attorney -- Albany D.A. David Soares, who was elected on an anti-Rockefeller platform in 2004. Soares defeated incumbent Paul Clyne who supported mandatory minimum sentences.

Soares has come under criticism from the local law enforcement community for his stance. Since taking office, Sayegh said, Soares has been "stymied because of lack of support." For example, Sayegh said, Soares has found it difficult to increase treatment programs in Albany County because he cannot secure the funding he needs from the County Legislature.

In the Legislature

As with most issues, the key to changing the Rockefeller drug laws rests in working out details of a new law and getting enough people in both houses to support it.

Sen. Eric Schneiderman, a strong critic of the Rockefeller drug laws, said he is "quite optimistic" that reform legislation will pass both houses this year, but he offered some caveats. "The dilemma with this issue is people claim they are for it, but when you get specific, that's when the trouble starts," he said. "The Senate needs 32 votes and we only have 32 Democratic votes. There may be some Republicans who would vote for this, but not a lot."

Some pundits have argued that Silver's very public push for Rockefeller drug-law reform is intended to goad the Senate into action. But Aubry said he thinks Silver's fervor is giving the Senate Democrats some "cover" to get their positions in order while the Assembly crafts the legislation. Aubry also noted that the state's dire budget will likely take precedence over other issues for some time.

The Sales Pitch

In their very public statements about Rockefeller reform both Paterson and Silver have indicated they believe the laws should be changed that so that drug offenders can be treated for their addictions rather than put in jail. Whatever the other merits of this argument, it now has a financial dimension: Sentence fewer drug offenders and the state will save money and perhaps even be able to close some prisons.

Caitlin Dunklee of the Drop the Rock Campaign pointed to a study by the Legal Action Center that indicated that wide-ranging reform -- fully restoring judges' discretion in all drug cases and greatly expanding alternative sentencing programs to provide treatment rather than prison -- would save the state almost $268 million a year. The study took into account the effect of sending addicted individuals to community treatment programs rather than prison and maintained that would drastically reduce repeat offenses.

However, legislators and advocates note that this savings could be slow to materialize since money would have to be spent to create the alternative treatment programs. "You have to invest to save money," said Aubry. "We have to have the treatment slots for these people, and the budget is going the wrong way on treatment."

Last year, the state cut $8.6 million in contracts for groups that provide drug counseling and treatment to former convicts. Aubry said that pro-reform legislators and advocates need to demonstrate that a modest investment in treatment services will provide a major return in savings on prison cells down the road.

Harry K. Wexler of the National Development and Research Institutes said drug treatment reduces recidivism rates by actually helping addicts address their addiction. "A lot of these people don't belong in prison," said Wexler. "In some cases prison just makes their case worse."

A Commission Weighs In

Paterson, in his State of the State address, said he would review recommendations from the New York State Commission on Sentencing Reform in considering how to change the Rockefeller drug laws. That sent chills down advocates' spines. Those supporting changes in the laws sharply criticized the commission's preliminary report. "The ways it took up Rockefeller were really awful," Sayegh said. "It is almost as if they gave the prosecutors' association the pen."

The commission's final report was released this week and immediately derided by advocates across the state for not recommending drastic revisions to the drug law.

Terry O'Neill, an Albany based public relations consultant known for his poetic commentary about goings on at the Capitol put it this way:

"Spitzer did what pols will do -- empaneled a commission,
Hired Denise O'Donnell and handed her the mission.
Two years went by of hearings, colloquies and chats
Where all the experts hobbed and nobbed with all the bureaucrats.
After all this effort, the report is out at last.
Sorry that reform is going nowhere soon or fast.
Denise and friends for all they met and saw and heard and talked
Decided in the end to leave the boat as is -- unrocked."

While the report discusses the need for more alternative treatment, Sayegh said that it sets up too many "hoops" for defendants to jump through to get that treatment and leaves most of the discretion in the hands of prosecutors, not judges.

Silver's office released a scathing letter calling the report a "missed opportunity." Smith's office however released a statement describing the report as, "an important first step."

The Next Step

For the next few months, advocates will spend time courting senators. Dunklee said that Drop the Rock hopes to deliver a petition to the Capitol on March 10. The group needs 13,000 more signatures to reach it goal of 35,000.

Dunklee said that Drop the Rock plans to lobby "tough on crime" Democrats in the Senate, as well as some Senate Republicans they feel might support the bill: "We are going to tell them, 'Rockefeller reform is going to pass. You can be on board or not.'"

One legislator who preferred to remain anonymous said that, as usual, advocates will push for complete repeal of the drug laws and the Democrats will come up with something less than that, a compromise they feel is politically feasible.

Sayegh, though, thinks a complete overhaul of the laws is inevitable. "New York has led the country with the most oppressive sentencing standards on drugs for years," said Sayegh. "Now if we take this turn and approach drug addiction as a public health problem and end the war on drugs, New York can set a new example for the nation to follow."



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