Commission Must Reform Inhumane Drug Laws
- Arrest: It has been widely documented that the war on drugs has been waged largely in poor, inner-city communities. Noted sociologist Michael Tonry explains: “The institutional character of urban police departments led to a tactical focus on disadvantaged minority neighborhoods. For a variety of reasons it is easier to make arrests in socially disorganized neighborhoods, as contrasted with urban blue-collar and urban or suburban white-collar neighborhoods.”11 New York City's policing practices demonstrate the routine and widespread practice of racial profiling. According to data recently released by the NYPD, police officers conducted 508,540 stop and frisks in 2006. Fifty-five percent of those stop encounters involved blacks, 30 percent involved Latinos, and only 11 percent involved whites.12 Those percentages bear little relation to the demographic profile of the City's overall population. But the most salient fact is that 90 percent of the persons stopped were found to have engaged in no unlawful activity. Racial bias is starkly evident in New York City's marijuana arrest statistics. Although whites use marijuana at least as often as blacks, the per capita arrest rate of blacks for marijuana offenses between 1976 and 2006 was nearly eight times that of whites. During this period there were 362,000 marijuana possession arrests in New York City. Fifty-four percent of those arrested were black and 30 percent were Latino; only 14 percent of the arrestees were white.
- Prosecution: The plea bargaining process is largely hidden from public scrutiny; but even assuming prosecutors in New York are making completely race-neutral charging and plea-bargaining decisions, there are other factors that place black and Hispanic defendants in legal jeopardy. Chief among them is the fact of unequal access to legal resources. Most persons charged with drug crimes are poor and must rely upon the state's public defense system -- which is in a state of crisis, according to a recent report by the Commission on the Future of Indigent Defense Services. The Commission's report concludes that, “Whereas minorities comprise a disproportionate share of indigent defendants and inmates in parts of New York State, minorities disproportionately suffer the consequences of an indigent defense system in crisis, including inadequate resources, sub-standard client contact, unfair prosecutorial policies, and collateral consequences of convictions.”13
- Sentencing: By the time a drug case reaches the sentencing stage the die has been cast. The racial inequities that operate in each phase of the criminal justice system produce a pool of defendants comprised almost exclusively of poor people of color. Ninety-eight percent of those defendants will enter a guilty plea for which the judge will be required to impose the mandatory minimum sentence. Over the years, many judges have expressed frustration and outrage at the mandatory minimum sentences prescribed by the Rockefeller Drug Laws:14 “I sentence the defendant with a great deal of reluctance . . . and will state I think it's an inappropriate sentence and an outrageous one for what was done in this case.” Judge Florence M. Kelly, Supreme Court, New York County “When I say the law is draconian, in your case it is. I am required by law to impose a sentence that in my view you don't deserve.” Judge Martin E. Smith, Supreme Court, Broome County “But the bottom line is that I am handcuffed as a matter of law, so I have to do what the law says I have to do, because I cannot violate the law. But I am not going to give your client more than the minimum sentence.” Judge Seymour Rotker, Supreme Court, Queens County
Footnotes 1 Timothy Egan, "The War on Crack Retreats,” The New York Times, February 28, 1999. 2 Press Release, Campaign for Effective Criminal Justice, May 6, 1998. 3 Testimony of New York State Corrections Commissioner Thomas A. Coughlin, III: “Rockefeller Drug Laws -- 20 Years Later,” Before a hearing convened by the Assembly Committee on Codes, June 8, 1993. 4 Glenn C. Loury, “Why Are So Many Americans in Prison? Race and the transformation of criminal justice,” The Boston Review, July-August 2007. 5 New York State's population overall is 74% white, but its current prison population is 91% black and brown. Of every 100,000 whites in New York State, 174 are in prison or jail. The comparable figures for blacks and Hispanics, respectively, are 1,627 out of every 100,000, and 778 out of every 100,000. 6 New York State Department of Correctional Services data, as cited by The Correctional Association of New York; and by Rachel Porter in Unjust and Counterproductive: New York's Rockefeller Drug Laws, (Physicians for Human Rights and the Fortune Society), p. 23. 7 Carol L. Council, Weihua Shi, Laurel L. Hourani, “Substance Abuse and Mental Health in New York, 2001,” Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies, May 2005, at 5. “Illegal drugs” include, in order of popularity, marijuana, hashish, non-medical use of prescription drugs, cocaine, heroin, hallucinogens, and inhalants. 8 K. Jack Riley, “Crack, Powder Cocaine, and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities,” National Institute of Justice and the Office of National Drug Control Policy, Dec. 1997. 9 The Riley study found that powder cocaine users, who tend to be more affluent than heroin or crack users, “reported that they typically made indoor purchases in places of business more frequently than did other users.” 10 Alfred Blumstein, “Racial Disproportionality of U.S. Prison Populations Revisited,” University of Colorado Law Review, Vol. 64, No. 3 (1993). 11 Michael Tonry, Malign Neglect: Race, Crime and Punishment in America, Oxford Univ. Press, 1995, p. 105. 12 Al Baker and Emily Vasquez, “Police Report Far More Stops and Searches,” The New York Times, February 3, 2007, p. A1. 13 The Spangenberg Group, “Status of Indigent Defense in New York: A Study for Chief Judge Kaye's Commission on the Future of Indigent Defense Services,” June 16, 2006 at p. 158 14 From “Stupid and Irrational and Barbarous”: New York Judges Speak Against the Rockefeller Drug Laws, A Report of the Correctional Association of New York, December 2001. 15 Angela J. Davis, The Power of the American Prosecutor (Oxford Univ. Press 2007), p. 5. 16 P. 23. 17 Transcript, New York State Commission on Sentencing Reform, Testimony of Michael Bongiorno, July 18, 2007 at p. 148. 1818 Marc Mauer, Incarceration and Crime: A Complex Relationship, (The Sentencing Project, 2005), p. 3. 19 Ibid. 20 Glenn C. Loury, “Why Are So Many Americans in Prison? Race and the transformation of criminal justice,” The Boston Review, July-August 2007. 21 Jeffrey Fagan, Valerie West, Jan Holland, “Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods,” 30 Fordham Urb. L.J. 1551 (July 2003) at 1553. 22 Fagan, et al., p. 2. 23 Todd Clear, “Backfire: When Incarceration Increases Crime,” in The Unintended Consequences of Incarceration, (Vera Institute of Justice, January 1996), p. 185. 24 HUB SYSTEM: Profile of Inmate Population Under Custody on January 1, 2006, State of New York Department of Correctional Services, Division of Program Planning, Research and Evaluation, June 2006, p. 27; Identified Substance Abusers, December 2005, State of New York Department of Correctional Services, Division of Program Planning, Research and Evaluation, March 2006, p.3. 25 Rachel Porter, Unjust and Counterproductive: New York's Rockefeller Drug Laws, Physicians for Human Rights and The Fortune Society, 2004, p. 3. 26 Bruce Western, et al, “Black Economic Progress in the Era of Mass Imprisonment,” in Invisible Punishment (Eds. Mauer and Chesney-Lind, 2002), p. 177. 27 Loury, p. 5. 28 Loury, pp. 5-6. 29 Human Rights Watch, Collateral Casualties: Children of Incarcerated Drug Offenders in New York, June 2002, p. 2. 30 Jeffrey Fagan, Valerie West, Jan Holland, Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods," 30 Fordham Urb. L.J. 1551, July 2003 at p. 1554.