New York's Drug-Law Debacle
Christopher Clemente was supposed to be an Ivy League success story. But when cops busted into a Harlem apartment in 1990, they found the University of Pennsylvania sophomore tossing bags of crack vials out the window. A Bronx native who had won a scholarship to the prestigious Wharton School of Business, Clemente insisted he was in the wrong place at the wrong time. He says the cocaine--plus the two handguns police found in the apartment--belonged to his drug-dealing older brother. The police arrested Clemente, then 19, on drug and weapon charges.
Seven and a half years later, Clemente is still incarcerated. His brother was arrested on drug charges, but never went to prison and was fatally shot six years ago. Convicted under New York State's strict drug laws, Clemente got slapped with a mandatory sentence of 15 years to life plus one year for gun possession. "We all make mistakes, but to take someone out of their community for so long--it kills them," says Clemente, who is now 27 and eligible for parole in 2006. "I'm losing my youth."
Had Clemente stuck up a bodega, molested a child, or assaulted a girlfriend, he likely would be out by now. If he had been caught in almost any other state, he would have received a shorter sentence. And had he been from a foreign country, state officials might have already shipped Clemente home to be set free, like the Israeli drug kingpin who previously occupied his prison cell. But since New York's drug laws rank among the nation's toughest, he will spend his entire twenties locked up.
The 25th anniversary of the signing of the so-called Rockefeller drug laws, which falls on May 8, has reinvigorated the debate over the fate of inmates like Clemente. In 1973, former governor Nelson Rockefeller launched his own war on drugs--and started a national trend--when he signed legislation setting up mandatory sentences for defendants convicted of drug crimes. Often denounced as draconian, the laws have incarcerated thousands of people, driving up the state's prison population from 12,500 in 1973 to 69,458 today. Most of these inmates are in for nonviolent crimes, and one-third are drug offenders. In the last 15 years, the annual state prison budget has soared from $450 million to $1.7 billion. Despite this astronomical price tag, it is widely agreed that the Rockefeller drug laws have failed to stop the narcotics traffic.
For years, it has been considered political suicide to challenge any aspect of the war on drugs. But now some lawmakers are willing to take a chance on reform. A movement to change the state's drug rules has been building in recent months, fueled in part by the upcoming anniversary. Recently, 27 Democrats in the state assembly sponsored a bill to repeal the laws. This legislation is not expected to pass, but it could pave the way for compromise bills. On May 6, a high-profile, bipartisan group--including former Congressman Floyd Flake, former State Senate Majority Leader Warren Anderson, Princeton University professor John DiIulio, and led by former GOP State Senator John Dunne--is announcing its support for less-radical legislation that would reform the drug laws.
"These laws are wasteful, inefficient, unjust, and marked by racial bias," says Robert Gangi, executive director for the Correctional Association of New York, a prison watchdog group that is helping lead the reform efforts. "It's time to change them."
If you are one of the 28,000 New Yorkers arrested each year and indicted for a felony drug crime, you could wind up with a lengthy prison sentence. These mandatory sentences--which range from one-to-three years to 15 years to life--are based only on the amount of drugs you allegedly sold or possessed and not on your level of involvement. A conviction for possessing at least four ounces or selling at least two ounces of heroin or cocaine will get you 15-years-to-life. It does not matter if you are a small-time dealer or a first-time courier or a longtime junkie. The Rockefeller drug laws require the judge to give you a stiff mandatory sentence if a jury finds you guilty.
Whether you go to prison--and for how long--depends partly on how you play your cards. Most likely you will plead guilty and never even have a trial. This is what nearly everyone decides to do, including 98 per cent of first-time offenders. The possibility of going to trial, losing, and getting slammed with a long stint upstate is just too terrifying to risk. Up until 1979, when legislators modified the Rockefeller drug laws, you would have had little chance to plea bargain. But now if you don't have too many crimes on your rap sheet and you aren't a drug-gang boss and you weren't caught with hundreds of kilos of cocaine in your car trunk, you will probably be offered a reduced sentence in exchange for pleading guilty to a lesser crime.
If this is your first arrest, you may get probation, avoiding prison altogether. If you're an addict, you have a slim chance of landing a coveted bed in a drug treatment program instead of a prison cell. Your odds of cutting a good deal increase if prosecutors believe you could be a helpful informant--if you are well-connected and willing to wear a microphone in order to collect evidence against other drug dealers.
But perhaps you do not want to plead guilty--maybe you're stubborn, maybe your lawyer tells you to reject the prosecutors' offer, maybe you're innocent. So you go to trial. Here, the stakes are high. A minority are convicted of the highest-level drug felony and wind up serving 15 years or more. (There were 631 such inmates at the end of 1997.) More likely, you will be convicted of a lesser crime, like selling a half-ounce of cocaine, which has a mandatory sentence ranging from three years to life.
Suddenly, you have plenty of time to ponder your decisions. Just ask first-time offender Robert Sanchez, who turned down a plea offer of six years to life because he thought he could escape prison time. "When you're 19 years old and you hear the word life and you never had handcuffs slapped on you and have never seen the inside of a precinct, you're scared," says Sanchez, 30, who is imprisoned at Sing Sing Correctional Facility, serving a 15-years-to-life sentence for drug possession. "I look back now, and I think I should've copped out."
The Rockefeller drug laws were supposed to dismantle large-scale drug operations and toss the dealers behind bars. By some measures, they have been an overwhelmingly success. After all, they put away more than 20,000 of the state's current inmates, if you include all the drug offenders locked up under the Second Felony Offender Law, which was also passed in 1973 and mandates prison sentences for two-time felons.
Robert Silbering, who oversaw the country's busiest drug prosecution unit when he headed the city's Office of Special Narcotics from 1991 until last November, credits the Rockefeller drug laws with helping drive down the violent crime rate. "Did the Rockefeller drug laws deter use?" he asks. "No. But that's not to say as a sentencing tool that they're not effective."
Prosecutors like the laws because the harsh mandatory sentences provide a powerful incentive to get defendants to plead guilty. "If you didn't have laws like the Rockefeller drug laws, you might have judicial gridlock because these laws induce people to plead guilty and not go to trial," Silbering says. The lawsalso induce people to cooperate and help prosecutors fight drug kingpins. Even Queens District Attorney Richard Brown, who supports reforming the laws, says that without them, "I think the ability of multi-kilo dealers to move large quantities of drugs would have been greatly enhanced."
But everyone--judges, prosecutors, and defense attorneys--seems to agree that the success of these laws has come at a high price, both in dollars and human costs. The Rockefeller drug laws have locked up the youth of entireinner-city communities while costing taxpayers millions of dollars a year. Steering more addicts into treatment would cost taxpayers far less--an average of $20,000 annually per residential bed, versus the $30,000 for a year's prison stay. Brown, who fought the passage of these laws in 1973, when he was the city's lobbyist in Albany, says, "I think in the long run if we'd spent the kind of money we spent enforcing the Rockefeller drug laws on things like prevention and treatment and education, we'd be better off."
Silbering is less willing to criticize. "There have been a few cases where someone maybe shouldn't have gotten 15 to life or 25 to life," he admits. "But to say this law should be thrown out is not right."
The former top narcotics prosecutor would rather talk about how the laws helped crush drug gangs than dwell on injustices. "You might say, 'Geez, I made the guy an offer and he turned it down,"' says Silbering. "What more can I do? You know, these guys aren't princes anyway. We're not talking about convicting priests and rabbis here. We're talking about convicting guys who are making a living selling drugs. He probably doesn't deserve 15 to life, but maybe he deserves four or five years in jail. But he wanted it this way. He turned down the deal."
Critics of the Rockefeller drug laws charge that their impact extends far beyond a few individuals. They have put thousands of nonviolent offenders behind bars, including many junkies struggling to support their habits. Ironically, the felons with the longest prison sentences are not always the ones at the top of the drug trade, since mid-and upper-level dealers can trade information for less prison time. Almost everybody who gets the raw end of the deal under these laws is African American or Latino. Even though studies show that the majority of drug users are white, 94 per cent of people incarcerated under the Rockefeller drug laws are minorities.
Law-enforcement strategies partly account for this discrepancy. "Most centers of drug distribution are located in minority areas--Washington Heights, East New York, Jamaica, South Bronx, Bed-Stuy," says Silbering. "Most white drug use, which is casual drug use, is really done in somebody's home, maybe in a bar, but the police are going to center their resources obviously against those who are distributing drugs."
In impoverished, drug-infested neighborhoods, the lure of easy money can seem irresistible. Earning $50 working as a lookout or courier may be a hard offer to refuse, especially if you are an addict. But it carries very tough penalties. Elaine Bartlett learned this the hard way. "What happens with the blacks and Latinos is that you can't come out of your house and go to the playground--you can't go to school, you can't go to the store--without the drug selling being right there," says Bartlett, 40, who grew up in Harlem and went to prison for selling four ounces of cocaine. "Most of our candy stores have drugs in them, and you can come right out of your house and see people getting high. It becomes normal. I think that's how so many people get caught up."
Some experts believe that the judicial system is stacked against minorities, particularly those who are poor, even after they are arrested. While 94 per cent of people in prison under the Rockefeller drug laws are minorities, only 85 per cent of people indicted for drug felonies are African American or Latino, according to a 1997 report by Human Rights Watch.
The factors that determine the fate of people apprehended by the police include whether the cops decide to make an arrest or give a desk appearance ticket, if the defendant can afford a good attorney, and how much support he or she gets from friends and family. This level of support can, in turn, influence how plea negotiations proceed as well as whether bail is set and how high it is. Charles Adler, a veteran defense attorney and critic of the Rockefeller drug laws, says, "There are seven or eight places from the initial confrontation with the police before you get to sentencing, and at each of them there's a skewing based on racial or class biases."
Other, less tangible factors include the defendant's appearance. "If he goes to a trial, what does he look like to the jury?" asks Adler. "Does he look frightening or does he look benign? A person who's brought from the jail every day even if he has civilian clothes doesn't look the same as the person who got up and took a shower and had scrambled eggs and coffee before coming to court."
Clemente had twice been arrested but never sent to prison when he got his 15-years-to-life sentence for drug possesion. Still, the former college student believes race played a role in determining the outcome of his case. "Had I been white, I think the whole arrest and search and seizure would have been thrown out and the case would've fallen," says Clemente, an African American. "I think somewhere down the line, a deal would've been made. Sombody would've said, 'This guy's got a future. Let's give him probation. Let's not mess his future up."'
When hundreds of white college kids began streaming into New York state prisons in the mid 1970s, there was a public outcry and the laws were changed. At that time, possession of more than a quarter ounce of marijuana was a felony. Assemblyman Richard Gottfried, a Manhattan Democrat who was elected to the state legislature in 1970, recalls, "You had college students with otherwise clean records going to state prison because the local district attorney did a raid on campus and found a collection of seeds in somebody's drawer."
The group shouting the loudest about the injustice of the marijuana laws was the state's Parent-Teacher Association. In 1977, legislators passed a bill decriminalizing pot. Possessing less than seven-eighths of an ounce of marijuana is now a "violation" and not technically a crime. Gottfried, who sponsored this legislation and was the chair of the Assembly Codes Committee, says, "If the marijuana laws had not been ruining the lives of a great many middle- and upper-income white kids, I don't think the legislation would have passed."
Jan Warren had never even heard of the Rockefeller drug laws in 1986, when she agreed to carry eight ounces of cocaine from Newark to Rochester. The threat of a lengthy prison sentence clearly did not stop her from agreeing to work as a drug mule. Four months pregnant at the time, Warren, then 35, was supposed to get $2000 for transporting $15,000 worth of drugs. Instead, the first-time offender got a prison sentence of 15 years to life.
Warren is just one of hundreds of drug mules imprisoned under the Rockefeller drug laws. Sister Marion Defeis, a chaplain at the women's jail on Rikers Island, started rallying support for these women several years ago after meeting so many with similiar stories. Women were frequently caught at JFK airport, trying to smuggle drugs from Colombia or the Dominican Republic. "Many of the women were claiming they were coerced or trickedinto bringing in drugs," says Defeis. "What the women did for the most part was they went before a judge, and said they were guilty when they were innocent because they didn't want to get a sentence of 25 years to life."
Once arrested, these women are often at a disadvantage in negotiating with prosecutors. They tend to be at the bottom of the drug-gang hierarchy, and so they are not desirable informants. "If I'd been in a position to offer them something good that they could sink their teeth into, then I would never have gone to prison," says Warren, now 46, whose most serious crime before her drug arrest was a traffic ticket.
It is not known how many of the 2108 women in prison for drug crimes at the end of 1997 were mules. But it is clear that women are disproportionately affected by the Rockefeller drug laws. There are now 3628 women in New York state prisons, up from 397 in 1973. Sixty per cent of these women are in for drug charges compared with 32 per cent of men. An estimated 75 per cent of these female inmates have children.
Leah Bundy may know better than anyone the effects of incarcerating mothers. When she was 14 years old, her mother went to prison for murder. "I was a child running wild," says Bundy, 29, who grew up in the Bronx. "I was really angry and upset with her. We had a good rapport and then it was demolished." Bundy stayed in her childhood home with her mother's boyfriend. But, she says, "I had no direction and no parental guidance. I raised myself."
Bundy got the chance to live with her mother again seven years ago. Their reunion took place inside Bedford Hills Correctional Facility, where Bundy was sent after getting a 15-years-to-life sentence for drug possession. She was with Christopher Clemente when cops burst into his brother's apartment and discovered the sizeable stash of cocaine. Bundy was the girlfriend of Clemente's brother, but says she was not involved in his drug-dealing operation.
Bundy worries that her own children will continue the family's cycle of incarceration. For Elaine Bartlett, this worry has already become reality. Bartlett was raising four children in a Harlem housing project when she got sent to prison at age 26. From prison, she has watched her son Jamal follow in her footsteps. Jamal, who was six when his mother was incarcerated, is now at Attica Correctional Facility serving a two-to-six-year sentence for drug sales.
"The only thing you have to offer them is a visiting room," says Bartlett, about raising children from prison. "They get angry, and they have every right to be angry. The younger they are, the easier it is because they don't really feel the impact of it. But when they start growing up and being teenagers, it becomes harder. No mother wants to see their child make the mistake that they made or wind up in jail."
If you want to see how New York's soaring incarceration rate affects the families left behind, go to Columbus Circle on a weekend night. Thousands of women and children flock there--armed with bags stuffed full of edible treats--to board buses that will take them to upstate correctional facilities. The weariness on their faces betrays the strain family members endure when they have to care for the kids of an incarcerated mother or stretch their resources to compensate for the lost income of an imprisoned caretaker. The families sleep overnight on the bus, visit during the day, and then return to the city. Depending on which prison they go to, the trip can take up to 12 hours each way.
On a recent Friday evening, five dogged activists showed up to publicize a vigil being held at Rockefeller Center on the 25th anniversary of the drug laws. The slogan on their pamphlets was "Too Much Time for Non-Violent Crime!" The activists spoke to the mothers, wives, girlfriends, and children of inmates about the injustices of the drug laws. Led by the William Moses Kunstler Fund for Racial Justice, this coalition of activists hopes to repeal the Rockefeller drug laws.
Even the state's highest-ranking judge would like to see change. "We are incarcerating so many people who are low-level substance abusers," says Chief Judge Judith S. Kaye. "I think we need a more discerning remedy, instead of putting away so many people for lengthy periods of incarceration--especially young people, who are going in substance abusers and coming out hardened criminals and substance abusers still."
When he was elected in 1994, Governor George Pataki announced plans to reform the Rockefeller drug laws. He has yet to deliver on this promise, though legislators tinkered with the state's sentencing laws in 1995. Perhaps the biggest obstacle to reform is the clout of upstate Republican legislators. Few politicians publicly defend the laws, but many have benefited from the boom in the state's prison population. Every time a new prison is about to be built, legislators scramble to get it in their district. "The dirty little secret in Albany is that prisons are the economic development engine for upstate New York," says Vince Marrone, a longtime drug-policy advocate.
Meanwhile, inmates incarcerated under the Rockefeller drug laws watch the years roll by. "I first came here in 1984, and the women I met then are still coming here," says Bartlett, a first-time offender who is serving a 20-years-to-life sentence at Bedford Hills for a 1984 drug sale conviction. "There are women here who have done my whole sentence with me on an installment plan, coming back and forth to prison. They'll say to me, 'Hi Elaine, how you doing? You still here? Did you go home?' I'll say, 'No, I didn't go home. I'm still sitting here.' Even people with long rap sheets and career criminals--people who have been coming here all their life--don't get the time we get for a first offense. If I'd killed somebody, I'd be home by now."
A vigil for prisoners incarcerated under the Rockefeller drug laws will be held at Rockefeller Center (Fifth Avenue and 50th Street) on May 8 at noon. For information, call the William Moses Kunstler Fund for RacialJustice at 924-6980.
The Rockefeller drug laws established mandatory sentences for the sale and possession of narcotics. A conviction for the highest-level offense--selling at least two ounces or possessing at least four ounces of cocaine or heroin--will result in a prison sentence of at least 15 years. (Two ounces of heroin can be divided among hundreds of glassine envelopes. The equivalent of two ounces of crack is between 400 and 640 vials--presumably more than needed for personal use.)
Below, sentences for some well-known violent criminals.
Killed girlfriend Jennifer Levin
Sentence: 5 to 15 years
Crime: Killed daughter Lisa
Sentence: 8 to 25 years
Crime: Beat daughter Elisa Izquierdo to death
Sentence: 15 years to life
Crime: Shot Mary Jo Buttafuoco
Sentence: 5 to 15 years
Dr. Malcolm Scoon
Crime: Shook baby daughter to death
Sentence: 2 to 6 years
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