The Queen had only one way of settling all difficulties, great or small. “Off with his head!” she said, without even looking round.
- Lewis Carroll, Alice’s Adventures in Wonderland
The Rockefeller drug laws, when they were enacted in 1973, were intended to combat drug abuse by providing such harsh sentences for drug offenses that users and dealers would be deterred from continued involvement in drugs. It didn’t work. John Dunne, one of the original sponsors of the laws, has admitted “beyond any shadow of a doubt that these laws are not working.”
Chief Judge Judith Kaye of the New York Court of Appeals has called for reform. The New York State Catholic Conference has issued a statement calling for more effective policies focusing on treatment. The newspapers, including The New York Times, Newsday and the Times Union have printed numerous articles, editorials and letters calling for the legislature to recognize the obvious: that these laws don’t work, they result in serious injustices and they need to be changed.
The first thing to recognize is that drug use is a criminal problem only because we have made it one. When drug use becomes drug abuse it is first and foremost a medical problem. Yet by seeking to impose criminal sanctions to limit both use and abuse of drugs, we have taken what is at worst a medical problem and turned it into a crime problem.
The most serious harms associated with the drug trade derive from the criminalization of drugs and not from the drug use itself: addicts may steal to support a drug habit made more expensive by the artificially high prices of an illegal market; dealers will resort to violence since the courts are not available as enforcement tools in commercial disputes.
The NYCLU has long maintained that regulation, not criminal prohibition, of drugs would be the most effective means of reducing drug abuse and violence and petty crime associated with an 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, not a criminal one. 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 if they were directed toward treatment of drug abusers where appropriate, not incarceration. 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, and the annual cost of incarcerating these offenders is estimated at over $710 million. Our law enforcement and justice systems, too, are heavily burdened with low-level drug offenders.
Treatment, on the other hand, is increasingly regarded as a more effective, and much more cost effective, way to curb drug abuse. As science continues to advance our understanding of the physiology of addiction, treatment methods will almost certainly increase in effectiveness.
Treatment on demand and education is a front on which we can wage a successful campaign to combat the misuse of drugs. As long as the punitive, and ineffective, provisions of the Rockefeller drug laws stand between individuals and meaningful treatment, the illegal drug trade will continue to flourish.
The damage inflicted by the Rockefeller drug laws goes well beyond their ineffectiveness and the excessive financial burden they place on the citizens of New York for costly and excessive incarcerations. These laws have resulted in injustices so severe that sentencing judges have railed against them even while imposing the extreme sentences compelled by the laws. Those who have been trapped in the inflexible mandates of these laws have had their lives, and the lives of their families, destroyed.
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. The abuse of state power is a far greater threat to our society than any individual’s abuse of narcotics could ever be.
Incarceration should be the penalty of last, not first, resort. 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.
The injustices inflicted on us by the Rockefeller drug laws take many different forms. First, the laws impose mandatory minimum sentences, removing judicial discretion and forcing judges to sentence offenders without consideration of the circumstances of the case.
The law has no regard for the defendant’s history, the individual facts of the case or the role the defendant may have played in any drug enterprise. Often, low-level couriers or buyers will receive harsher sentences than the so-called drug kingpins because they lack the leverage to bargain with prosecutors for reduced charges.
Second, the Rockefeller drug laws impose sentences disproportionate to the nature of the crime. First-time offenders with no history of violence, convicted only of possessing 4 ounces of a narcotic, must receive a prison term of 15 years to life. Combined with the second felony offender law, lengthy prison terms can be imposed for relatively small drug possession charges. Sentencing under these laws can result in more severe penalties than those imposed for violent crimes like rape.
The result is a litany of tragic stories, some reported in our newspapers and some probably known only to the families of those involved:
- Only last year, Lance A. Marrow was convicted under these laws because drugs were found in his apartment. They belonged not to him but to a guest. The sentencing judge told him “I am required by law to impose a sentence that in my view you don’t deserve.” He was sentenced to 15 years to life.
- When Elaine Bartlett was 26 years old she wanted to raise some money to make a down payment on a beauty shop to support herself and her four children. She made a mistake: she allowed herself to be persuaded to deliver some drugs for an acquaintance. She was arrested and sentenced to 20 years to life. It was her first encounter with the law. In the 1999 Christmas season Governor Pataki granted her clemency. She had served 15 years of her sentence and was 41 years old. Her eldest son was 11 the year she was arrested. On her release he would be 26 years old.
The extreme harshness of these laws has other unintended and truly tragic effects. Because juvenile offenders are not subject to the harshest provisions of these laws, children are recruited into the drug trade in the roles most vulnerable to capture and arrest. These laws are not protecting children from drugs. They are introducing them to drugs and recruiting them into the drug trade.
Harsh criminal penalties may also deter pregnant women from seeking adequate health care. Increasingly, experts are recognizing that the problems associated with infants whose mothers were using crack may be due to co-existing factors like poverty, inadequate nutrition and lack of prenatal care rather than simply drug use. Compassion for these infants should lead us to remove any barriers to their mothers seeking treatment and prenatal care.
Finally, the Rockefeller drug laws have a disproportionate impact on minority groups. Although studies indicate that the majority of those who use drugs are white, 94% of those imprisoned for drug offenses in our state prisons are African-American or Latino.7 Racial profiling is often used on the highways and in the streets to target likely drug offenders based on skin color, infringing the rights of those targeted and leading to the dangerous deterioration of trust between minority communities and the police.
These laws have not only failed to serve their purpose but have resulted in grave injustices and damaging, unintended effects on our children and on minority communities; and all this at huge and wasted expense to the citizens of the state. The legislature must take immediate steps towards meaningful reform of the Rockefeller drug laws and the second felony offender law.
There are a number of proposed bills to repeal or mitigate the effects of the existing Rockefeller drug laws and the second felony offender law. Without commenting in detail on each bill, NYCLU strongly urges legislators to take a comprehensive approach towards reform. Small adjustments in the name of reform will not overcome the serious injustices and damaging effects of these laws. A meaningful effort towards reform should address at minimum the following issues:
- Proportionality in sentencing. The classification of drug related offenses must be reduced to more rational levels. Possession of 4 ounces of narcotics is currently treated on a level with kidnapping, arson, and even murder-2, and more harshly than rape or assault.
- Restoration of judicial discretion. Restore reasonable discretion to judges to impose individualized sentences taking into account the circumstances of the case. The second felony offender law must be adjusted so that low-level possession charges do not result in mandatory incarceration. If a recovering alcoholic falls off the wagon, that person is encouraged to climb back on. Under the current sentencing scheme, a single relapse by a drug addict can result in mandatory incarceration.
- Increase availability of treatment alternatives. Treatment alternatives where appropriate may provide the best long-term hope that offenders may return to their families and communities to lead productive lives. Such alternative programs should be established and made available. The cost of treatment programs to the citizens of New York would be significantly lower than the cost of incarceration.
- Adjustment of prior convictions under the Rockefeller laws. Any reform should include a mechanism to adjust the sentences of those serving time under the current, failed, sentencing scheme.
Finally, reform of the Rockefeller laws and the second felony offender law should not be linked to other unrelated initiatives. Twenty-seven years ago your predecessors in this legislature made a mistake. Whether you agree or disagree with the principles that guided their actions, all must now admit that these laws have failed miserably. The time has come to admit that mistake and rectify it. The compelling need to reform these laws should not be used as a vehicle to push through other legislative initiatives.
The NYCLU strongly supports meaningful reform of the Rockefeller drug laws and the second felony offender laws.