Andrew Dructor, Staff Writer
The election season promised “change” and discussion of “change” has remained relevant as the government continues to look for solutions to put a halt to the economic free-fall. This change has involved federal government bail-outs in order to try and cure mistakes and instances of poor judgment in order to revitalize the economy. However, at the same time states across the nation are seeking ways to bail themselves out of budget deficits. The New York Times has noted that that this has led to a broad “trend in which states are trying to cut the costs of being tough on crime” with proposals to abolish the death penalty, release non-violent offenders early,1 and even legalize marijuana.2 Does this mean that these states are choosing to be soft on crime, or are these economic struggles and budget deficits propelling a bigger change in the debate over whether some of these crime-fighting costs are actually achieving their intended purposes and, if not, how can we improve the criminal justice system?
Currently, New York finds itself in the same dilemma as other states across the country. It has a $14 billion budget shortage and is also in the midst of exploring changes to its criminal justice system. This reform has focused on the Rockefeller Drug Laws which mandate prison sentences based on the weight of the drug involved.3 The law came into existence in 1973 in order to halt the rising drug use and crime rate by “frighten[ing] drug users out of their habit and drug dealers out of their trade.”4 As Sheldon Silver, Speaker of the New York State Assembly, explains, “For instance, a person convicted of possessing one-half ounce of a narcotic drug must be sentenced to prison, no questions asked. Possession of 2 ounces of methamphetamine is punishable by mandatory imprisonment of up to 10 years.”5 On the other hand, an individual convicted of assault that causes “serious injury to another person” faces a sentence of two to seven years.6 The mandatory sentences require prison unless a prosecutor gives consent to send the drug abuser to a treatment program.7 The law allows no judicial discretion in the sentencing process.
However, many studies dispute whether the law actually achieves its purpose. “Most scientific evidence,” the scholars observe, “suggests that there is little if any relationship between fluctuations in crime rates and incarceration rates”8 and “according to government sources, illicit drugs are more easily accessible than ever.”9 One individual convicted under the Rockefeller Drug Laws commented in the New York Times that being sent away with murderers and other criminals failed to scare him away from drugs. “It’s not a deterrent, because they come out bitter, angry, confused, and they just go back where they left off,” he said of prison. “There, you’re so busy thinking about survival that you don’t have time to make changes in yourself.”10 Fortunately, he was able to end his drug dependency following prison by attending drug treatment programs.11
The Rockefeller Drug Laws also come with a huge cost in terms of dollars spent as well as the harm they inflict on communities. Since the law’s passage, nearly 200,000 individuals have spent time in prison for drug offenses.12 Forty percent of prison admissions in the last decade have been for drug offenses13 and currently today, drug offenders make up twenty percent of the prison population.14 Imprisoning so many drug offenders is a very expensive solution to the drug problem. In order to incarcerate the over 6,000 people sent to prison for drug offenses in 2007 for just one year will cost $307 million and conservative estimates claim it costs New York more than a half-billion dollars annually.15
However, these laws incur an even greater cost on communities and especially minorities. Data shows that more whites compared to Hispanics and African Americans use and sell drugs,16 however, one would not know it if they visited a New York prison. Ninety percent incarcerated for drug offenses are African American or Hispanic.17 These disparities create fractured communities and tear families apart. “Close to 25,000 children in New York State had parents in prison convicted of non-violent drug charges” and half of the parents in prison did not receive visits from their children.18 Once released, the ex-cons discover that it is more difficult to find employment and if they are lucky enough to find it they also quickly discover that they will earn between ten and thirty percent less than similarly situated workers who had not been to prison.19 Thus, it comes as little surprise that four out of ten will be rearrested and returned to prison within two years of release.20 People are not reformed and they are placed in an environment with little chance to succeed.
It is clear the Rockefeller Laws are a very expensive burden for taxpayers, and it also has a disparate impact on minorities. Thus, the calls for reform are nothing new and come as no surprise. However, the 2008 elections changed the political landscape. The calls for reform of the Rockefeller Drug Laws grew louder as the Democrats took power in the Senate for the first time in forty-three years. Governor Paterson, in his 2009 State of the Address, also promised reform after review of the New York State Commission on Sentencing Reform report.21
Then, on March 4, 2009 the New York Assembly passed legislation to reform the drug laws by granting judges the discretion to sentence drug offenders to treatment instead of prison without requiring the consent of prosecutors.22 The legislation would also apply to 2,000 prisoners in order to reduce their current sentences.23 This legislation was immediately followed by some Republicans who claimed that the sky was falling and that the Bronx was burning once again. “This is the beginning of the end,” said Sen. Martin Golden, R-Brooklyn, hinting at what will be a Republican mantra: “Democrats want to empty the state’s prisons.”24 Already in campaign mode for 2010, Republicans have taken to “painting Democrats as soft on crime.”25 The poor economy makes it necessary for budget cuts, but at the same time Republican strategist John McLaughlin noted that “crime typically rises during an economic downturn” and that “if you are perceived as adding to their insecurity, that’s not good.”26
In the Senate, however, Democrats face more than just cries of being soft on crime. Many rural, upstate communities rely on prisons as a major source of employment and have had past success preventing prison closures.27 Prisons also help provide political power since the national census counts prisoners where they are imprisoned. New York City lost 43,470 residents to upstate New York in the last redistricting.28 Thus, the New York Civil Liberties Union points out that this gives “legislators representing districts with a large prison population enormous incentive to protect the status quo regarding the drug sentencing laws and electoral districting rules.”29
Faced with these realities as well as only a slim two person majority, Democrats have decided to seek political refuge by placing the reforms in the 2009-2010 budget and presenting the measure as a “money saving initiative.”30 The budget placement will make it even more difficult this year to approve a budget but it does allow members to vote up or down on the entire budget and thus, avoid any negative implications of being soft on crime.31 Senate Majority Leader Malcolm Smith and other Democrats have acknowledged that this approach will also help ensure that there is adequate funding for drug treatment programs.32 This is especially important considering the state budget crisis has already negatively impacted current drug treatment programs.33
In order to gain support in the Senate and appease the Assembly, Governor Paterson recently introduced a “middle of the road course.”34 The legislation grants judges discretion to send first-time drug offenders to drug treatment rather than prison if they plead guilty.35 The reform, however, fails to include the Assembly bill’s provisions for “judicial discretion for a well-defined group of 2nd timers” which “make up the largest group of people jailed under the laws.”36 The bill also leaves out provisions that mandated treatment for drug offenders imprisoned as well as programs for drug offenders after being released due to costs.37 Costs also stepped in to prevent the legislation from being retroactive.38 The bill also provides some appeasement to District Attorney’s because they will be able to object to the judge’s decision of treatment rather than prison.39 The Governor’s office estimates that this legislation could divert 1,200 people a year to treatment rather than prison. This will also lead to prison closures which will be made easier due to the bill also calling for shortening the notice period for closing a prison from a year to ninety days.40
Governor Paterson’s compromise waters down the Assembly’s version and fails to take the necessary step forward in order to move New York from its system of arrest and imprison to a system of intervention and treatment. There still is time to bring real “change” to New York and help the drug problems in our communities. New York has the choice to adopt the Assembly bill and stop sending non-violent drug offenders to prisons with violent criminals and instead send them to drug rehab programs where they can be rehabilitated and sent back into their communities with a chance to succeed. Why continue to run a system that leads to such a high percentage of non-violent drug offenders being re-arrested for the same drug problem? Why accept this kind of failure and give it a free pass? We talk about No Child Left Behind and holding teachers accountable but then do not question the accountability of a system that is not helping to reduce and solve the drug problem on the streets. Why not start asking how we can improve this system? Why not bail-out the criminal justice system and the communities being targeted and torn apart by shifting to a system that sends drug offenders to drug treatment programs where they can get the help they need rather than jail where they become hardened criminals? It is not being soft on crime. It is being smart on crime. It is shifting to a system that will save taxpayer’s money as well as bring real change. It is not releasing criminals to roam the streets. It is putting them into drug rehab programs that can help solve their addiction. It is putting them into a better environment where their children can visit them. It is putting them back into a community drug-free and with a chance to be successful parents and successful members of the community. It is bringing the “change” promised.
Meredith Perry, Steve Sharp, & Eric Shillinger, editors.
1 Ian Urbina, In Push to End Death Penalty, Some States Cite Cost-Cutting, N.Y. Times, Feb. 25, 2009, at A1.
3 Loren Siegel et al., New York Civil Liberties Union, The Rockefeller Drug Laws: Unjust, Irrational, Ineffective 5 (2009), http://www.nyclu.org/files/Rock.pdf.
4 N.Y. Times, Times Topics, Rockefeller Drug Laws, http://topics.nytimes.com/top/reference/timestopics/subjects/d/drug_abuse_and_traffic/rockefeller_drug_laws/index.html (last visited Apr. 26, 2009); Siegel et al., supra note 3, at 8.
5 Sheldon Silver, Opinion, Finally Overhaul N.Y.’s Inumane Rockefeller Drug Laws, N.Y. Daily News, Mar. 11, 2009, http://www.nydailynews.com/opinions/2009/03/11/2009-03-11_finally_overhaul_nys_inhumane_rockefelle.html.
6 Siegel et al., supra note 3, at 5.
7 Jeremy W. Peters, Legislation to Overhaul Rockefeller Drug Laws Moves Ahead Swiftly, N.Y. Times, Mar. 1, 2009, at A20.
8 Siegel et al., supra note 3, at 8.
9 Id. at 9.
10 Jake Mooney, For a $20 Drug Deal, 12 Years Go to Waste, N.Y. Times, Feb. 27, 2009, http://www.nytimes.com/2009/03/08/nyregion/thecity/01disp1.html.
12 Siegel et al., supra note 3, at 5.
13 Id. at 11.
14 Id. at 14.
15 Id. at 15.
16 Id. at 5; Silver, surpa note 5 (“According to the U.S. Health and Human Services Department, the rate of drug use in America is generally 8.2% for whites, 7.2% for Latinos and 8.7% for African-Americans.”).
17 Siegel et al., supra note 3, at 5, 17 (“A recent study by the Justice Policy Institute examined the race and ethnicity of people incarcerated for drug offenses in 198 counties with large populations located throughout the United States.”).
18 Id. at 14.
20 Id. at 15.
21 David A. Paterson, Governor of N.Y., State of the State Address 2009: Our Time to Lead (Jan. 7, 2009), http://www.ny.gov/governor/keydocs/speech_0107091.html
22 Jeremy W. Peters, Albany Takes Step to Repeal ’70s-Era Drug Laws, N.Y. Times, Mar. 4, 2009, http://www.nytimes.com/2009/03/05/nyregion/05rockefeller.html.
24 Rich Karlin, Drug Law Reforms Await Senate Vote, Times Union, Mar. 5. 2009, at A1.
26 Rick Karlin, Drug Law Fate in Doubt, Times Union, Jan. 9, 2009, at A3.
27 Posting of Rick Karlin, Assembly Does Drugs (Reform of Laws, That is); Next up: Senate (Updated), to Capitol Confidential Blog, Times Union, http://blogs.timesunion.com/capitol/archives/12130/assembly-does-drugs-reform-of-laws-that-is-now-its-passed-to-the-senate (Mar. 4, 2009, 13:55 EST); Jeremy W. Peters, Paterson is Said to Seek Narrower Overhaul of Drug Laws, N.Y. Times, Mar. 11, 2009, at A26 [hereinafter Peters, Paterson].
28 Siegel et al., supra note 3, at 15.
29 Id. (noting that disenfranchising laws “mandate that those in prison and on parole lose their right to vote in all elections”).
30 Rick Karlin, Senate Puts Off Drug Reform Issue, Times Union, Mar. 7, 2009, at A3 [hereinafter Karlin, Senate Drug Reform]; Casey Seiler, Voices Rising for Drug Law Reform, Times Union, Mar. 11, 2009, at A3; Posting of David King, Drug Law Reform Repackaged in Senate, to Wonkster Blog, Gotham Gazette, http://www.gothamgazette.com/blogs/wonkster/2009/03/06/drug-law-reform-repackaged-in-senate/ (Mar. 6, 2009, 12:15 EST).
31 Karlin, Senate Drug Reform, supra note 30.
32 King, supra note 30.
33 Sarah Arnold, Rockefeller Drug Laws: Ripe for Reform, The Nation, Jan. 23, 2009, http://www.thenation.com/doc/20090209/arnold (“[I]n November, the state canceled $8.6 million in contracts with the Department of Correctional Services, the Division of Parole and nonprofit groups that help recovering drug addicts.”).
34 Peters, Paterson, supra note 27.
36 Editorial, End the Rockefeller Drug Laws, N.Y. Times, Mar. 10, 2009, at A26.
37 Peters, Paterson, supra note 27.
38 Id. (“the cost of processing such a high volume of resentencing petitions in court would be prohibitively high, especially given a projected $14 billion budget deficit.”).