A Question of Justice


The call came early in the evening on September 30, 2003. Ashley O’Donoghue, 20, could feel his cell phone vibrating in the holster on his right hip. He flipped open the phone and glanced at the caller ID. “Hey, Peter,” he said. “What’s going on?” Every time Peter called, Ashley knew he was going to make some money.

Ashley didn’t know much about Peter, not even his last name. He didn’t know that Peter’s father is a leader in the drug-abuse treatment field, or that Peter had just graduated from Collegiate, one of Manhattan’s most prestigious prep schools. All Ashley knew was that Peter liked to buy cocaine two grams at a time, two times a week.

Then, at the end of the summer, Peter’s buying habits had changed. He’d left the city for Hamilton College in Oneida County. No longer could Peter meet him on Upper East Side street corners. Now Peter wanted the coke delivered to him upstate.

A few weeks into the fall semester, Peter called looking for 30 grams—a huge order. The prospect of such a large sale excited Ashley; his customers usually wanted only a gram or two. Ashley boarded an Amtrak train to Utica and met Peter and two friends outside the station. He handed over the bag of coke; they gave him $2,000.

Peter called again several days later, wanting an even larger delivery. The next morning, on October 1, Ashley took the train up again. This was to be his biggest deal ever. In exchange for 70 grams, Peter had promised to pay $5,000.

Soon after Ashley’s train pulled into the station, Peter called to say he was running late. Ashley wandered over to a vending machine for a pack of Newports. When Peter phoned again, he told Ashley, “I’m out front.” Ashley headed for the exit.

Just outside the door, Ashley turned to a stranger and asked for a light. Moments later, that man and three others tackled him. “State police!” one of them shouted. “Get on the ground!” They yanked his arms behind his back and cuffed his wrists together. Lying facedown on the concrete, Ashley realized Peter had set him up.

A few weeks into the fall semester last year, word sped along the Hamilton College grapevine: If you were looking for cocaine, two freshmen were selling it. On this campus of 1,750 students, it didn’t take long for the rumor to reach Patricia Ingalls, director of campus safety. On September 30, she phoned the local police chief, and he called the New York State Police.

Soon three undercover state troopers showed up on campus. Preston Kraus, one of the two students whose names had surfaced, was already seated in a room at the Campus Safety office. The three officers walked in, closed the door, and started asking questions. When the other suspect, Peter McEneaney, arrived at the office, two of the troopers interviewed him in a second room.

It took only a few minutes for the students to admit they had bought 30 grams of coke from a dealer in New York City. One of the officers, Trooper Eric Jones, walked with Preston to his dorm room. There he collected seven grams of coke from a desk drawer. Jones went with Peter to his room, too, and retrieved another seven grams.

“You’re in trouble in a big way,” Trooper Jones told the students. “Do you want to do the right thing? Try to help yourself out?” The “right thing,” he explained, was to become informants, and to set up their supplier. “We can’t make you any promises, but we have the D.A.’s ear, so if we tell them you cooperated, it usually goes a long way,” Jones said.

Peter and Preston, both 18, agreed to cooperate. “It didn’t really take any persuading,” recalls Jones, the lead officer on the case. “I think they were thinking about saving their school careers. They’re young, naive college kids who had probably never been in trouble in their whole lives.”

Since Peter had more of a relationship with Ashley, the officers wanted him to make the phone call. They asked Peter to double his last order and get more if he could. “We told him, ‘Get the most you can without being suspicious,’ ” Jones recalls. “We were shooting for two ounces . . . just to make the cutoff for an A.”

This is standard state police procedure: Set up suppliers with enough weight so they can be indicted for the highest-level felony, known as an A. Sale of two or more ounces is an A-1 felony; it carries a mandatory minimum prison term of 15 years. Possession of the same amount is a slightly less serious felony, known as an A-2.

A few minutes later, Peter stepped out of the Campus Safety building, dialed Ashley, and placed an order for 70 grams, which is about 2.5 ounces. Trooper Jones stood nearby, listening. The next afternoon, Ashley arrived at the Utica train station. Out front, Trooper Jones sat in the driver’s seat of an unmarked police car. Peter was in the back. When Ashley emerged from the building, Peter said, “That’s him.”

The police questioned Ashley in a security room at the train station and discovered a sandwich bag filled with white powder in his jacket pocket. That afternoon, he was arraigned on charges of second-degree drug possession—an A-2 felony—at Utica City Court. Afterward, the police took him to the county jail.

Two days later, Peter and Preston turned themselves in as part of a prearranged deal. Their parents and lawyers accompanied them to the police barracks, then to the town courthouse. Both students were arraigned on a B-level felony. If convicted, they would receive at least one to three years in prison. Afterward, they were released to their parents.

Peter and Preston had known each other for years; they attended Collegiate School together on the Upper West Side. News of their arrest buzzed around Hamilton College. Sophomore Ian Mandel, an editor at The Spectator, the school paper, tracked them down in their dorm rooms. Neither wanted to talk. The paper published their photos on the front page under the headline “Hamilton Students Arrested for Cocaine Possession.”

Peter’s father, Kevin McEneaney, is the executive vice president and chief operating officer of Phoenix House, the nation’s largest nonprofit drug-treatment provider. He hired a top defense lawyer from Syracuse for his son. Philip Kraus, Preston’s father, is a plumbing contractor; his company contributes to the state Republican Party. The Kraus family retained Dennis Vacco, the former New York State attorney general, to handle Preston’s case. At the time, Vacco had just joined the Albany lobbying firm where William Powers, former chairman of the state Republican Party, was a partner. The firm’s clients included the union for the New York State Troopers—the same agency that had arrested Preston and Peter.

Since Peter and Preston were 18, they qualified for youthful offender status, known as “Y.O.” status, which means they were eligible for a reduced punishment. A judge granted them this status, and their records were automatically sealed. The prosecutor who oversaw this case refuses to reveal exactly what deal was hammered out.

Peter and Preston left Hamilton College. Because they received Y.O. status, they’re not obligated to tell future employers or college admission officers about their arrest. They can truthfully say they do not have a criminal record.

Ashley grew up on East 28th Street in Manhattan. His mother works as an editor at a glossy magazine; his father is a part-time chef and a superintendent at two apartment buildings. Ashley attended public schools and was in and out of special-ed programs starting in second grade. A doctor diagnosed him with attention-deficit/hyperactivity disorder. He attended three high schools before dropping out altogether.

In the summer of 2003, Ashley’s family moved to a small town near Poughkeepsie. His parents asked him to join them, but he wanted to stay in the city. At the time, his parents didn’t know he was dealing cocaine. Ashley, who is black, was selling to a few dozen people, all of them white—prep school kids, college students, a stockbroker, a banker. According to Ashley, he got the coke from a dealer in Washington Heights.

Ashley’s customers knew him by his a/k/a, “Will.” They called his cell phone all night long, and he’d take cabs around the city making deliveries. Some calls came from kids at clubs, like Lotus or Bungalow 8. Other customers called from their loft apartments in Tribeca, wanting coke for their parties. Whenever Ashley arrived, he was the most popular guest. “Oh my God, it’s Will!” somebody would shout. “Hey, Will, you want some sushi?”

From the 2003 Hamilton College facebook: 18-year-old freshmen Preston Kraus (top) and Peter McEneaney

According to Ashley, he had been selling coke for about six months when he was arrested. By then he was 20, two years too old to qualify for Y.O. status. The police originally charged him with possession, but a grand jury indicted him for a sale. Since more than two ounces were involved, this was an A-1 felony. If he went to trial and lost, he would receive at least 15 years to life.

His parents hired a well-known attorney in Utica. Cheri O’Donoghue, Ashley’s mother, says the lawyer had little empathy for Ashley. “It’s the smut from the city who come up here and do these things,” Cheri says the attorney told her. He denies saying “smut,” but he acknowledges the family didn’t like his “bedside manner.” Cheri fired him and hired a Manhattan attorney, Lawrence Dubin.

Dubin began making regular trips to Oneida County. He submitted a motion to suppress the evidence, arguing that the police had unlawfully arrested and searched Ashley. He visited Hamilton College to try to persuade the dean to intervene. Neither effort worked. He didn’t know the names of the students who had set up Ashley, or he might have contacted them. He asked Ashley if he would consider working with the police, but Ashley had no interest in becoming a snitch.

The details of Ashley’s case—his age, his lack of a criminal record, the prospect of spending the rest of his twenties in prison—bothered Dubin.”I felt really bad, horrible,” he says. “This was a very nice family.”

A judge set bail for Ashley at $100,000, and on December 16, his family got him out, putting up his grandparents’ house in California as collateral. Back in Manhattan, Ashley tried to make the most of his borrowed time. He wrote a letter to Russell Simmons asking for help. He worked with his father, cleaning hallways and renovating bathrooms. He spent weekends with his girlfriend at his family’s house.

Ashley returned to Oneida County on February 3 and pleaded guilty to a B felony as part of a deal his lawyer had struck. On March 22, he celebrated his 21st birthday at a Knicks game at Madison Square Garden. Eight days later, at 5 a.m., his parents drove him back up to Utica, where a judge sentenced him to seven to 21 years.

Ashley entered the New York State prison system at the same time that legislators in Albany were debating the state’s narcotics laws, known as the Rockefeller drug laws. This has become an annual spring ritual: politicians promising reform, then doing nothing. When the legislative session ended on June 22, hopes dimmed once again.

One of the major sticking points in the debate is who gets to decide how drug felons are punished—judges or prosecutors. The Rockefeller drug laws, which were enacted in 1973, established mandatory minimum prison sentences, stripping judges of the power to dole out prison terms as they saw fit.

In New York, 98.5 percent of people convicted last year of a drug felony pleaded guilty rather than risk going to trial. Prosecutors determine the amount of time these people spend in prison by how they negotiate plea deals. Plea offers vary from one county to another. If Ashley had been arrested in Manhattan, he likely would have received a shorter sentence. In Manhattan, the median prison term for first-time drug offenders convicted of a B felony is one to three years.

Ashley’s arrest prompted his mother to join Mothers of the Disappeared, an organization fighting to abolish the Rockefeller drug laws. Since mid May, Cheri has made three trips to Albany. Her entry into the Rockefeller debate came just as legislators were paying increased attention to B-level drug prisoners, who did not benefit from the provision created last year that enables A-1 inmates to reduce their sentences. Of the state’s 16,397 drug prisoners, the largest group—Ashley and 5,262 others—is doing time for a B felony.

In New York, a B-level drug felony is equivalent to rape, manslaughter, and armed robbery. New York’s drug laws are the most punitive in the nation, according to a report released earlier this year by State Senate Minority Leader David A. Paterson. Cheri and many other activists want legislators to reduce sentences for B-level felonies and make the changes retroactive.

Not surprisingly, the families of Peter McEneaney and Preston Kraus are not eager to jump into the debate. When the Voice called Kevin McEneaney of Phoenix House and asked him about his son’s arrest, he said, “I’m not really interested in talking about it. He lost a year of his life. So, end of story. He’s trying to put it back together again.” Neither Peter nor Preston responded to a letter requesting an interview or to phone messages left at their parents’ homes.

Trying to forget the past is a luxury Ashley does not have. In early June, he was transferred to Clinton prison in Dannemora, near the Canadian border. There he is housed in the maximum-security annex, which used to be a state hospital for insane convicts and now holds 800 inmates. Ashley spends his days listening to Tupac and Nas and Mobb Deep on his Walkman. He put his name on a list for the GED program, but was told the wait is six to 12 months.

On a recent weekday morning, Ashley sits at a table in an empty visiting room. He wears the standard inmate uniform—forest green pants and shirt—plus a pair of black New Balance sneakers. It is easy to tell that not long ago he was a cocky teenager—the sort of kid who thought he could beat the system by selling drugs, making a lot of money, and never getting caught. On the side of his neck, in elegant script, are the words “God’s son.”

Ashley rolls up his left sleeve and reveals his newest tattoo. This one suggests an older, more mature, less carefree self. “R.I.P. Brenda and Maria,” it reads, a reference to his girlfriend’s mother and sister. They died when a fire engulfed their Bronx home on December 30. Ashley and his girlfriend narrowly escaped the blaze by leaping out a third-story window.

Ashley looks down, picking at the edge of the visiting room table. “I’ve got my whole family stressed out,” he says. “My fiancée is out there by herself, struggling to get an apartment with Section 8.” He pauses, then begins again, softer this time. “I’ve never seen my mother like this,” he says. “She’s crying all the time.”

It is not hard to predict how much Ashley’s prison sentence will cost. For taxpayers, the price tag will be $32,000 a year, likely more than $200,000 in total. Already, the O’Donoghues have exhausted their life savings and had to borrow from friends. They’ve spent nearly $50,000 on lawyers, bail fees, and collect calls.

“I feel like he has to pay for the crime that he has done,” Cheri says. “I wouldn’t want anything less than that because I want him to learn to do the right things in life. I don’t expect him to get off easy. But it doesn’t seem to me that the amount of time fits for the crime he committed.” Ashley O’Donoghue will be eligible for parole in 2010.