Op-Ed

Drug laws are still too harsh

Real reform remains elusive as prosecutors still have the power to stack the decks against the small fry

December 9, 2004

Newsday

Robert Gangi is the executive director of the Correctional Association of New York.

Despite the fanfare, the Rockefeller Drug Law modifications approved this week in Albany do not amount to real reform. The amendments reduce sentences for drug offenses but leave intact the harshest aspects of these statutes and don't address the most serious problems caused by these laws.

The mandatory sentencing provisions remain on the books, meaning that judges still cannot consider significant mitigating factors - such as an individual's role in the drug transaction or history of addiction - and fashion appropriate penalties to suit the offenses before them.

Mandatory sentencing schemes like the Rockefeller Drug Laws do not eliminate discretion; they remove it from the judge's hands and place it in the prosecutor's offices. Under the new system - as under the old one - the district attorneys will maintain power to control the outcome of drug cases, and the old imbalance associated with the drug laws will persist. The deck will still be stacked.

Prison terms, especially for the highest categories of drug offenses, remain excessive. For example, under the new system, instead of 15 years to life, the most serious provision of the drug laws carries a sentence of eight to 20 years - still far too long. 

Many other drug offenders, most of whom have no history of violent or predatory behavior, will still be incarcerated for inordinate periods of time, and New York 's taxpayers will still foot the bill. It costs the state hundreds of millions of dollars annually to lock up people convicted of minor drug crimes.

The main criterion for guilt remains the amount of drugs in a person's possession, not the person's actual role in the drug transaction. Drug kingpins are rarely foolish enough to carry narcotics; they employ other people, often in dire economic circumstances, who agree to do it. Couriers are the ones who get caught literally holding the bag and face long prison sentences. As a main weapon in the "war on drugs," this statute will continue to result in law enforcement agencies concentrating on minor offenders - mainly from poor communities of color - who are most easily arrested, prosecuted and penalized, rather than on middle- and high-level criminals who are the drug trade's true masterminds.

Another problem is that the legislature did not include any additional resources for drug treatment and other alternatives to incarceration. Drug treatment is a well-documented success. Fully funded rehabilitation programs not only cost less than imprisonment, they are also much more effective in helping individuals recover from addiction and in reducing the crime associated with the drug trade.

The prevailing wisdom is that Albany was finally willing to move on this issue because of political considerations: an insurgent candidate who ran on a platform promoting drug-law repeal recently defeated the sitting district attorney in Albany County , representing the first time any elected official has been voted from office because of his support for the drug laws. The Republicans in the State Senate – often seen, fairly or not, as obstacles to meaningful change - lost three seats in November, with another hanging in the balance. All observers assume, rightly or wrongly, that New York 's next governor will be the progressive Democrat Eliot Spitzer, who will most probably be a strong proponent of real reform. Republican Senate Majority Leader Joseph Bruno likely saw an advantage in supporting this measure: He could at least claim that he and his colleagues took some action.

So, the concerns here are not only substantive; they are also political. If this legislation turns out to be the first small step on the path toward meaningful reform, then it will have been a positive measure. If, in fact, these modifications wind up undercutting the momentum for real change that has been building, then it will be viewed mostly in a negative light. The final history on this issue has yet to be written, and all of us will help shape the ultimate outcome.

Copyright © 2004, Newsday, Inc.

read Robert Gangi's letter about the Drug Laws in the New York Times