Just Say Maybe?

Politicians Posture but Rockefeller Reforms Still Elusive

Despite quite a few sound bites and photo ops purporting to be movement on the reform of New York's infamous Rockefeller drug laws, nothing has happened. For many years, Governor George Pataki has advocated for reform. This year, the state assembly passed legislation for reform. The state senate agrees that reform is needed; yet another legislative session has passed without any concrete action. With statewide elections right around the corner, this inaction may have created a vulnerability for Democratic gubernatorial candidate Andrew Cuomo to willingly exploit.

"The governor may be trying to posture on this issue," said Robert Gangi, executive director of the Correctional Association of New York, a watchdog group central to the "Drop the Rock" campaign, "[saying] that I'm calling for reform, I put reform proposals on the table, but the other side balked, and he may think that that may be sufficient for him politically or he may begin to get more worried if he doesn't deliver on this issue [that] he'll be vulnerable during the election, particularly in certain communities where he wants some inroads."

On August 5, that open flank was attacked when Cuomo called for repeal of the controversial laws. Cuomo has effectively upped the ante for state pols. The pressure is now on for Pataki to act and for the other Democratic candidate for governor, Carl McCall, to strengthen his position.

"Governor Pataki has said that he wants to reform the Rockefeller drug laws, but he has failed to get it done," said Cuomo. "We need comprehensive reform now to restore true fairness and uniformity to criminal sentencing, and to make the punishment truly fit the crime. Only by repealing the Rockefeller drug laws, restoring judicial discretion, and re-emphasizing treatment can we accomplish this goal."

Pataki has been proposing reform since he first took office in January 1995. The intelligentsia applauded him for taking up the issue after a short time in office. Seven years later, nothing has been accomplished. "The governor, he's talking the talk," said Gangi, "but he hasn't been able to walk the walk. He has not delivered significant reform on the drug laws despite all this talk about how it's long past due."

The Rockefeller drug laws, enacted in 1973 by former governor Nelson Rockefeller, have long been considered excessively harsh and a failure in their original intent to deter the sale and use of illegal substances. Instead, the legislation's only overwhelming success has been in escalating incarceration rates. Since its enactment, the New York State prison population has jumped from 12,500 total prisoners in 1973 to 19,000 individuals currently incarcerated on drug offenses alone. Over 90 percent of those inmates are black and Latino. Even some of the bill's original sponsors, like former state senators John R. Dunne and H. Douglas Barclay, are among the leading advocates for reform.

"When the laws were created over 30 years ago, they were particularly punitive," said Lillian Rodriguez, vice president of the Hispanic Federation, a collective of Latino organizations that has actively advocated for Rockefeller reform. "You have certain individuals that have been in prison serving terms and have been serving more time than people who have been put away for murder because the laws are so strict."

"We know that it has disproportionately affected communities of color," continued Rodriguez, "particularly blacks and Hispanics, and it's destroyed a lot of families over the years with sentencing."

The main source of contention is the law's mandatory sentencing scheme, which imposes penalties that range from one-to-three-years to 15-years-to-life, depending primarily on the weight of the drugs possessed or sold. The legislation requires a judge to impose a sentence of 15-years-to-life on anyone convicted of selling two or more ounces or possessing four or more ounces of illegal drugs and lesser sentences for selling or possessing smaller amounts. Mandatory limits effectively eliminate judicial discretion in sentencing.

Earlier this year, both the governor and the state assembly put bills on the table. The assembly's version is seen as too radical a change by conservatives while the governor's is viewed as too little by anti-Rockefeller advocates.

"On the governor's end," said Gangi, "he clearly wants to wrap himself in the mantle of drug law reform, particularly in an election year, but at the same time he doesn't want to step too far out of the district attorney's camp because they represent an important constituency for him."

The fiercest opposition to change—especially from the New York State District Attorneys Association (NYSDAA)—is over returning sentencing power to the judges. According to the prosecutors, changing the drug laws would strip prosecutors of the tools, namely heavy sentences, that they have used for years to urge cooperation from criminals, induce addicts to take treatment, and lower crime rates overall. They say that there is no groundswell of support for reducing sentences, that judges already have great sentencing discretion, and that the harsher aspects of mandatory sentencing are not as widespread as activists claim.

"There is no evidence that the Rockefeller drug laws are effective in fighting drug abuse or drug-related crime," says Gangi. Randy Credico, a spokesperson for the highly vocal anti-Rockefeller group Mothers of the Disappeared, agreed that sentencing discretion should be returned to judges. "The prosecutors are elected to prosecute. Judges are elected to look at facts and decide sentencing, and a jury is impaneled to decide guilt. Otherwise you could just use a computer up there; you wouldn't need a judge."

According to activists, the current reform proposals are unacceptable because they exclude groups of drug offenders from judicial diversion—court-ordered treatment instead of prison—and the limitations set on such diversions. There are also issues concerning judicial discretion, the role of prosecutors, and retroactive application. Advocacy groups have also been highly critical of reforms that significantly address only a limited class of offenses in terms of the revision of sentencing parameters and that do nothing about others.

Credico related the story of a woman who is featured in Mothers of the Disappeared's new ad campaign and was in their meetings with the governor, who has two family members in jail under the sentencing laws. Their cases vividly illustrate the shortcomings of the current proposals.

"Her two sons were in prison, one is still there, and her nephew is in prison," said Credico. "Her nephew is serving 15-to-life for a sale of over two ounces of cocaine. Her son is doing 15-to-30 for a $20 bag. Now the difference here is, the governor's bill would help out the guy doing 15-to-life, her nephew, but it wouldn't help her son. So the nephew could conceivably get out immediately while her son would have to continue to do the minimum of his sentence."

"We met with them," said Credico of talks with the governor and other politicians. "They gave us an offer that we refused and [Pataki] certainly doesn't want to be hammered in terms of the hardship horror stories that keep coming out."

When questioned about the lack of legislative activity, Charles Carrier, a spokesperson for Assembly Speaker Sheldon Silver, told the Voice: "We've been very public over the last several months in trying to do as much as we could to get it accomplished this year, because our feeling was this was a real opportunity this year to try to reach an agreement on this subject. . . . I just know that the mandatory sentencing, judicial discretion, the role of the district attorneys, these are all parts of the discussion."

After the assembly passed a strong reform bill in mid June, disagreements with the governor and the senate on a compromise bill led to the current stalemate. However, there is speculation that the entire situation may be smoke-and-mirror "politricks" and some question whether or not some lawmakers are truly engaged in fair play.

"The senate is more conservative than the assembly," explained Credico. "The governor's bill doesn't go far enough. If it went any further, I suppose the senate could knock it down and not bring it up on the floor.

"Pretty much [Senate Majority Leader] Joe Bruno gives the governor what he wants. So the governor can't hide behind that. There's a lot of talk about that the governor would tell Bruno, 'Look, we're going to come up with this great package; don't bring it up on the senate floor and I could say that I tried.' And so the governor is aware that people think that he might do that already."

Rodriguez has a different perspective. "In our conversations with the governor's office and the assembly," said Rodriguez, "I think that there's some serious intent to make something happen to reform the Rockefeller drug laws, but people need to come closer to the middle and there needs to be more negotiation and it's unfortunate that we haven't had that yet because it's just time for it."

However, with Cuomo's new initiative, going through the motions of reform without any significant movement may no longer suffice. "He's the first statewide mainstream politician who has urged repeal of the laws rather than some kind of reform," said Gangi of Cuomo. "When you have a credible and mainstream candidate for governor calling for repeal, it's important for two reasons. It undermines the argument that repeal is an unrealistic position and also it puts some pressure on McCall and the governor to take stronger positions for reform."

For the most part, aside from scattered allusions, until Cuomo's call for repeal, the drug laws were marginalized as a campaign issue with the most significant items coming from columnists and editorials. Considering that statewide elections are right around the corner, the lack of focus on the landmark issue is yet another trait indicative of the bizarre nature of New York politics. With these recent developments, it's reasonable to speculate that the whispers of negotiations will increase a few decibels and legislation may actually materialize.

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