Testimony: Public Hearings On The Rockefeller Drug Laws, Special Housing Units, And Transitional Services For Inmates

New York State Senate Democratic Task Force on Criminal Justice Reform Public Hearings On The Rockefeller Drug Laws, Special Housing Units, And Transitional Services For Inmates

Testimony of Marina Sheriff, Legislative Director
New York Civil Liberties Union

Asked to close their eyes and envision a drug user, 95% of Americans picture a black person, according to the results of a survey published in 1995 in the “Journal of Alcohol and Drug Education.”

But most drug users aren’t black. In fact, nationwide black Americans represent about 13% of all drug users, roughly in proportion to their share of the population (12%). White Americans represent about 72 % of drug users. Most drug users aren’t black.

Yet 95% of us think of a black person when we think of a drug user. And it seems that that is true of police and prosecutors as well.

Fewer statistics are available on the Latino population, so I will discuss primarily the statistics available on blacks, but I would suggest that the impact on the Latino population is similarly disproportionate.

In spite of the fact that only 13% of drug users are black, nationwide, blacks are 38% of those arrested on drug charges, 59% of those convicted on drug charges, and a stunning 74% of those sentenced to prison for a drug offense. In New York State in 1996, 18% of the population was black but 68% of the drug admissions to prison were black. In New York, African-Americans and Latinos comprise over 94% of the drug offenders in New York State prisons. At each stage of the law enforcement and criminal justice systems, blacks are disproportionately subjected to the harsher consequences of drug laws.

This is not a big surprise. Over this past week, increasingly stark revelations of racial profiling on New Jersey’s highways have been splashed all over the headlines. New Jersey officials have responded that it is the federal government that wrote the textbook on singling out minority drivers and that they have taught that tactic to police departments across the country. In New York, the Attorney General’s report on the NYPD’s notorious “stop and frisk” practices indicates that 45% of those stopped on suspicion of drug charges were black, 36% Hispanic and only 16% white. Yet most drug users are white.

In our state there are two devastating results of this structure. First, minorities are disproportionately subjected to the extremely harsh, punitive sanctions of the Rockefeller drug laws. Of the blacks in the prison population 48% are there on drug offenses compared to 30% for crimes of violence. Black men are 11 times more likely than white men to be incarcerated for a drug offense. Yet most drug users are not black.

When black drug offenders are disproportionately incarcerated under the extreme provisions of New York laws the ripple effect is felt in their families and throughout their communities.

Even worse, the drug laws are in part the cause of racial profiling. It is because we have criminalized drugs and because 95% of us have that image of a black drug user, that innocent black citizens are subjected to stop and frisks by the police and other racial profiling. This has led to the devastating and dangerous deterioration in trust between the police and the minority communities they are sworn to serve and protect. Patrick Dorismond was an innocent victim of the drug wars. When the police approached him, they were looking for a drug arrest.

The stereotype of the drug user, combined with the criminalization of drugs leads to profiling. The profiling leads to disproportionate arrest, convictions and incarcerations of black New Yorkers. The disproportionate incarcerations reinforce the stereotype. And we are trapped in that cycle.

It is surely past time to step back and take a look at what we are doing.

At the outset, let us acknowledge one point: These laws don’t work.

Even if you believe that the goals of these laws are laudable and their methods acceptable, (and we do not believe that), they don’t work. If harsh sanctions could win the “drug war” then the war would be over in New York. Instead the percentage of inmates incarcerated for drug offenses has increased dramatically from about 11% in 1980 to over 44% in 1999. Even John Dunne, one of the original sponsors of the bill, has admitted “beyond a shadow of a doubt that these laws are not working.”

If we truly seek to reduce the harms associated with drug abuse, what should we do?

The first thing to recognize is that drug abuse is first and foremost a medical problem. By seeking to impose criminal sanctions to limit both use and abuse of drugs, we have taken a medical problem and converted it into a crime problem. The most serious harms associated with the drug trade derive from the criminalization of drugs and not from drug use itself: for example, addicts may steal to support a drug habit made more expensive by the artificially high prices of an illegal market; and dealers resort to violence because the courts are not available as enforcement tools in their business disputes. The NYCLU has long maintained that regulation, not criminal prohibition, of drugs would be the most effective means of reducing drug abuse and the violence and petty crime associated with the illegal drug trade. Alcohol prohibition, and its repeal, should have taught us that lesson.

Like alcohol addiction, drug addiction should be viewed as fundamentally a medical problem. Even those who believe that the state should continue to involve itself in combating private drug use must recognize that those efforts would be more effective it they were directed toward treatment, not incarceration. A 1997 study by the RAND Drug Policy Research Center estimated that treatment should reduce serious crime approximately 15 times as much as incarceration. A 1994 study by RAND concluded that treatment was seven times more cost-effective in reducing cocaine consumption than were law enforcement efforts. At the moment, the annual operating expense for incarcerating drug offenders is estimated at of $710 million. Our law enforcement and justice systems, too, are heavily burdened with low-level drug offenders.

The NYCLU urges the Legislature to undertake a serious investigation into the effects of drugs and the effects of criminal prohibition of drugs. We believe that such an inquiry will lead to the conclusion that criminal prohibitions in general are ineffective and have created problems that the drugs themselves were powerless to create; and that a regulatory system is a more appropriate approach to controlling the availability of drugs.

We are aware of the political realities surrounding this issue and we recognize that moving from a system of criminalization to regulation may be a difficult process politically. We hope that you have the will to do it. But at a minimum the extreme injustices perpetuated under the Rockefeller Drug Laws must be eliminated. To that end we urge the Legislature to repeal those laws through legislation which at a minimum provides:

  • Proportionality in Sentencing. The classification of drug related offenses must be reduced to more rational levels. Non-violent possession charges should not be treated more harshly than rape.
  • Restoration of judicial discretion. Judges must have reasonable discretion to impose individualized sentences taking into account the circumstances of the case. The second felony offender law must be addressed so that low-level possession charges do not result in mandatory incarceration.
  • Increase the availability of treatment alternatives.
  • Adjust prior convictions under the Rockefeller drug laws.

The NYCLU is encouraged that you are holding these hearings to examine not only the Rockefeller laws but other laws and policies relating to sentencing, alternatives to prison and prison conditions. We live in a society that tends to over-incarcerate, and it is certainly time for the New York Legislature to move strongly for reform.

The power of the state to restrict our physical freedom is one of the most serious intrusions on our liberty that the state can impose. As such it should always be used with great caution. Incarceration should be a penalty of last, not first, resort and should only be used when there is no less restrictive alternative that will serve society’s legitimate goals. Of course incarceration is appropriate and necessary in some circumstances for the protection of society. But treatment or other programs designed to reintegrate the individual into society are more consistent with the rights of the offender and, ultimately, society’s interest in regaining a useful member rather than an expensive long-term inmate.

A Legislative Memorandum dealing with additional aspects of the Rockefeller Drug Laws is attached for submission to the Task Force.