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Op-Ed: Make-Believe Drug Law Reform (New York Newsday)

By Donna Lieberman — In the final days of the legislative session, reform of the Rockefeller Drug Laws has become a game of make-believe.

Again and again, the Governor marches to the microphone proclaiming his commitment to “unprecedented” or “comprehensive” reform — when it’s plain to everyone, he doesn’t believe what he’s saying.

The governor issues the rules of this game; but the rules are written by the District Attorney’s Association.

Here’s how the game works: the Governor strongly endorses “real” reform, but introduces a bill that embraces the status quo. The Governor says he will give judges authority to send a drug offender to treatment instead of prison — provided the prosecutor agrees.

The Governor states he is acting in good faith, when he has broken faith with the thousands of families that are being destroyed by the state’s harsh mandatory sentencing scheme for drug offenders.

With very few exceptions, the Governor’s so-called reform bill, introduced June 11, leaves in place a rigid schedule of excessive sentences for drug offenders. The judge remains a bystander in the courtroom.

While the governor’s bill lowers the 15-year-to-life sentences for the top drug offenses (a small minority of offenders is incarcerated for these crimes), it includes a number of provisions that may well increase both the number of persons incarcerated as well the length of sentences served — even for lower-level non-violent drug offenses.

The Pataki bill creates new determinate, or fixed, sentences for all drug offenses. It would also impose severe determinate sentences on non-violent offenders under a “3 strikes” provision. A new “drug kingpin” crime is so broadly defined that even a first-offender with only a minor role in a drug transaction could now face a mandatory sentence of up to 14 years.

Treatment, instead of incarceration, is a key component of drug-law reform. But the Governor’s bill would make many, if not most, drug offenders ineligible for treatment if they had a prior conviction — even a misdemeanor.

In short, the bill gives prosecutors new statutory tools by which drug offenders can be coerced into accepting a plea that puts them in prison for a long time.

There is now a near-unanimous consensus among legislative leaders and policy makers that the Rockefeller Drug Law’s sentencing requirements are inefficient and wasteful. There is also irrefutable evidence that these laws are enforced in a way that makes a mockery of the constitutional principle of equal protection — that each of us must be judged according to the same legal standard.

The majority of people who sell and use drugs are white; but more than 90 percent of drug offenders in New York prisons are black or Latino. Why? A senior officer with the narcotics division of the Chicago Police Department put it this way: “There is as much cocaine in the Stock Exchange as there is in the black community. But those guys are harder to catch. . . . [T]he guy standing on the corner, he’s almost got a sign on his back. These guys are just arrestable.”

The Governor promised meaningful reform of New York’s drug laws and deserves some credit for this. But the bill he has put on the table is not reform. Indeed, if that bill were to become law not much would change. Except for the campaign slogan of the true reformers: “Repeal the Pataki Drug Laws.”

Donna Lieberman is executive director with the New York Civil Liberties Union; Robert Perry is the NYCLU’s legislative counsel.

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