The Rockefeller Drug Laws: 35 Years of Unjust, Biased Policy


When Governor Nelson A. Rockefeller championed the passage of the harsh New York drug statutes bearing his name in May 1973, the liberal Republican sought to burnish his national crime-fighting credentials with the hard right wing of his party. Distant as his Attica-era motives may seem today, according to opponents of his drug policy, raw political calculations offer one of the few ways to understand why the mind-bogglingly draconian Rockefeller Drug Laws persist.

Among the toughest laws of their kind in the nation when they were passed 35 years ago, and even now after celebrated but humble reforms in 2004, the Rockefeller Drug Laws mandate severe prison sentences for anyone convicted of the possession and sale of relatively small amounts of narcotics, which included marijuana until 1979. Because the laws remove judicial discretion and mandate minimum sentences based on the amount of drug found on the person, and not his or her role in the transaction, advocates of repeal say that the Rockefeller Drug Laws brew a perfect social storm of ineffectiveness, racial basis, waste, and injustice.

“It’s rare that you get to the heart of the beast,” said Robert Gangi, executive director of the Correctional Association of New York, during a panel on the human and financial costs of the Rockefeller Drug Laws held at the New York Society for Ethical Culture on Thursday evening. “The Rockefeller Drug Laws are at the heart of the beast.”

Panelists presented a devastating critique of the social price of the Rockefeller Drug Laws since 1973, followed by calls to Governor Eliot Spitzer and the Senate and Assembly for repeal. The outline of their charges almost resonated like a mantra.

The Rockefeller Drug Laws are ineffective.
A focus on the amount of drugs found on an individual, which for sellers is a mere two ounces, encourages the capture of street-level offenders and not drug kingpins, who know better than to carry any amount of substances. As a result, law enforcement fails to reach a major source of the drug problem, and instead punishes people who are hardly the most violent. In fact, among the 13,000 drug offenders in state prisons, nearly 80% were never convicted of a violent felony.

The Rockefeller Drug Laws are racially biased. Policing that targets low-level offenders and prioritizes numbers in the so-called dollars-for-collars style naturally gravitates toward communities of color in urban areas, where the drug trade is more likely to be conducted in the open, and arrests and prosecutions made easier. While their rates of drug use are not drastically different from whites, African-Americans and Latinos comprise about 90 percent of the drug offenders in state prisons.

The Rockefeller Drug Laws are wasteful. Between 1982 and 2000, to help accommodate the influx of inmates owing to the strict drug statues, some 38 prisons were built in upstate, majority-white areas of New York represented by Republicans. The facilities, which cost billions to build and operate over the decades, house mostly minority prisoners from downstate areas, who are counted as upstate residents for the purposes of the U.S. Census and federal funding formulas. The operating costs for confining all drug offenders comes to about $500 million per year, much more than the estimated costs for treatment that would actually help fight drug abuse and reduce recidivism rates.

The Rockefeller Drug Laws are unjust.
Near the close of the panel, Cheri O’Donoghue relayed the story of her son, Ashley, who was incarcerated under the Rockefeller Drug Laws after he was convicted of attempting to sell 2.6 ounces of cocaine to two Hamilton College students in 2003. The well-connected students, one the son of a national leader in drug-abuse treatment, had agreed to contact him as part of a sting operation to save themselves after they came under fire for supplying cocaine on their Utica campus.

“My son I basically feel did a prison sentence for all three of them,” said O’Donoghue, who acknowledged her son’s mistake, but decried the excessive strain of driving over seven hours each way to visit him in a prison near the Canadian border, and years of fighting for his release. “It’s not right and it doesn’t make any sense,” she said.

In an apparent effort to exert some kind of logic, last year Governor Eliot Spitzer enacted the New York State Commission on Sentencing Reform. Established by Executive Order 10, the purpose of the commission is to rationalize sentencing schemes in New York, where the Rockefeller Drug Laws were understood to be a commission priority because of how deeply they bog down the system.

“Rockefeller is an aberration.” said Assmeblymember Jeffrion Aubry, at the panel, which drew about 80 attendees and was sponsored by NYSEC, the Correctional Association of New York, Drop the Rock and the Women’s City Club of New York. “Because you don’t allow a judge to be a judge.”

However, Aubry added that it appears unlikely the commission will recommend reform of the Rockefeller Drug Laws when it releases its report in early April. So in the meantime, he and opponents of the Rockefeller Drug Laws are promoting an advocacy day in Albany on March 27, among other tactics, in an attempt to rally Senate support for A.6663, his legislation that passed the Assembly last April. The bill would repeal major flawed areas of the Rockefeller Drug Laws by returning discretion to judges in all drug cases; further reducing sentence lengths for drug offenses; expanding funding available for alternatives to incarceration, like drug treatment, job training and education; and making sentencing reform retroactive so that current inmates can petition the courts for review of their sentences.

As the bill heads to a Republican-controlled Senate desperate to maintain its thinning majority, perhaps the political calculations of Rockefeller seem not so remote, after all.