Rocky's Road

How the Worst Law in the State's History Came To Be

It was Election Day 1972, and Governor Nelson Rockefeller's top advisors thought they were in for a breather. With the next gubernatorial election two years away and a relatively uneventful legislative season ahead, staff gathered among the Picassos and DeKoonings in the basement of Rockefeller's home in Pocantico, 28 miles north of Manhattan.

The governor seemed bored as his chief counsel read through a list of programs. Suddenly Rockefeller blurted out: "On drugs, anyone who pushes gets life in prison. And I mean life--no matter what amount. No more of this plea bargaining, parole, and probation."

His small audience was nonplussed. "My reaction was disbelief," longtime Rockefeller speechwriter Joseph Persico told the Voice recently. "It seemed to me unworkable and impractical. It seemed naive to think you could wave this brutal wand and wipe out drug abuse."

Persico was hardly alone--the governor's entire staff balked. They tried to convince themselves that their boss had become temporarily unbalanced and would soon forget his drastic proposal. But the opposite happened: Rockefeller deepened his conviction, snapping at any underling who dared tell him that his life-for-drugs idea was ill-conceived.

The confrontations sometimes illuminated the uglier corners of Rockefeller's mind. Howard Jones, an African American who chaired the state's Narcotics Addiction Commission, met with Rockefeller to voice several objections to the proposals: not enough judges, not enough jails, the likelihood that dealers would circumvent the law by recruiting minors, and the elimination of any possibility of rehabilitation.

According to Persico's 1982 memoir-biography The Imperial Rockefeller, the governor seemed more annoyed than engaged by Jones, and immediately after the meeting said: "He's just worried about his people."

After a few weeks, the governor's legal staff got in line, and in his state-of-the-state address on January 3, 1973, Rockefeller officially proposed to the legislature "making the penalty for all trafficking in hard drugs (defined as heroin, amphetamines, LSD, methadone, and hashish) a life sentence in prison....The law would forbid acceptance of a plea to a lesser charge, forbid probation, and forbid suspension of sentence." Even the modified version of this law that eventually passed was, as Persico puts it, "possibly the toughest criminal legislation enacted in this country outside of capital punishment." And, it should be recalled, the state's capital punishment law was found to be unconstitutional that same year.

While the 1973 law is Rockefeller's best-known and most sweeping piece of narcotics legislation, it was the culmination of more than a decade of legal innovations (not all of which increased the laws' harshness). When Rockefeller took office in 1959, state laws made possession of less than an eighth of an ounce of heroin a misdemeanor. Rockefeller toughened those penalties in 1960 (though he stopped short of making possession of any amount of heroin a felony). He also showed himself willing to take on civil libertarians in 1964 by approving "no-knock" and "stop and frisk" police search procedures.

Nor was Rockefeller ever moderate in his rhetoric about the evils of drug use. In 1966, while pop culture celebrated pot and acid use--and two decades before the "war on drugs" became the favored cliche of posturing politicians--Rockefeller declared a "war on narcotics." In 1971, Rockefeller said: "Drug addiction represents a threat akin to war in its capacity to kill, enslave and imperil the nation's future; akin to cancer in spreading deadly disease among us."

Still, unknown to many of those around Rockefeller, the drug law had some peculiar origins. One idea in the original proposal--a $1000 bounty to anyone whose information led to the conviction of a drug dealer--had been proposed by one of Rockefeller's stepchildren. The bulk of it, however, came from William Fine, president of the Bonwit Teller department store, who was also one of the early bankrollers of Phoenix House (his son had struggled with drug addiction). Rockefeller had met Fine at a party early in 1972, and the two men discussed the various challenges of narcotics enforcement.

Rockefeller asked Fine if he would "like to do something for New York State." Fine said he would, and Rockefeller told him to go to Japan and learn why that nation's drug addiction rate was among the world's lowest. Fine did, and determined that the secret was Japan's mandatory life sentences for drug pushers.

Fine submitted a report to Rockefeller, but heard nothing back from him. Then, at another party both men attended, Fine discussed his Japan research trip with Ronald Reagan, then governor of California. Reagan wanted a copy of the report, so Fine crossed the room to ask Rockefeller if that was okay; Rockefeller, who clearly wanted the political juice for himself, refused.

Rockefeller adeptly exploited the anticrime sentiment that blossomed as once strictly urban drugs--notably heroin--found their way into suburban homes. Although Rockefeller was a quintessential elitist, popular opinion--as the governor learned through town meetings--was coalescing against the nonenforcement of drug laws. By contemporary standards, judicial leniency was out of control. In 1969, though there were already laws on the books providing a maximum sentence of life--at judicial discretion--for possession of more than a pound of heroin, cocaine, or morphine, tough sentences were rare. Of 26,799 people arrested for felony narcotics violations in New York City in 1970, just 1 per cent were sentenced to prison; out of 20,762 arrests in 1971, only 2 per cent received sentences of more than one year.

This was, as a Voice writer pointed out in 1973, at a time when "at least one New York State judge [had] established a pattern of handing out 15-year sentences to street muggers."

Despite any justifiable outrage at drug dealers getting minimal punishment, however, virtually the entire state's legal and political establishment opposed the bill. Especially when viewed from today's law-and-order consensus, Rockefeller's political achievement is astounding. Imagine: a governor was able to pass sweeping legislation against the combined weight of a formerly Republican New York City mayor, most of the state's district attorneys and judges, the city bar association, police lobbyists, and the editorial board of The New York Times. In that era--before anticrime fervor had wiped out many constitutional considerations--most prominent law enforcement officials agreed with the New York Civil Liberties Union that the legislation was "one of the most ignorant, irresponsible, and inhumane acts in the history of the state."

Robert McKay, the dean of New York University Law School and chair of the commission that investigated the Attica prison rioting, went even further, and called Rockefeller's proposal "completely counter to everything the civilized world has been working for."

Rockefeller was forced to make several compromises. He agreed, with little hesitation, to add 100 judges to the state's roster to accommodate the expected ballooning case load (it also helped get the bill passed because, as a Times reporter slyly noted, "many lawmakers aspire to judicial raiment.") The governor's staff dropped hashish from the list of hard drugs, and accepted lighter provisions for teenagers and those who turned state's evidence. Most significant, the mandatory life provision was replaced by a system of mandatory minimums.

In the end, Rockefeller was able to frame the issue in a simplistic but devastating way: was the GOP-majority legislature for drug dealers or against them?

"Drugs were a very hot topic in politics in 1972 and 1973," recalls Karen Burstein, who was a freshman state senator in 1973. "We were under a lot of pressure to 'solve' the drug problem. And remember, this was a different era--nobody looked at the stuff they were voting on the way they do now. They voted the way the governor or party told them to vote."

The vote in the assembly was 80 to 65, and in the senate a lopsided 46 to 7. Almost immediately, the laws proved to be disastrous, but Rockefeller was never accountable to New York's voters, as he was tapped to be Gerald Ford's vice president before the next gubernatorial election.

Research: Kaelen Wilson-Goldie

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