Rockefeller Drug Laws Cause Racial Disparities, Huge Taxpayer Burden
Testimony of Robert A. Perry, on behalf of The New York Civil Liberties Union, before the New York State Assembly Committees on Codes, Judiciary, Correction, Health, Alcoholism and Drug Abuse, and Social Services regarding The Rockefeller Drug Laws. My name is Robert Perry. I am the legislative director of the New York Civil Liberties Union (NYCLU). The NYCLU, a state affiliate of the American Civil Liberties Union, has approximately 50,000 members. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional principles embodied in the Bill of Rights of the United States Constitution and the Constitution of the State of New York. Central to this mission is our advocacy regarding fairness and equality in the state's criminal justice system. The legislature's announcement of this hearing appears to acknowledge the broad and growing consensus among policy experts, criminal justice scholars, and law makers that the “war on drugs,” with its singular emphasis on incarceration, has failed. It was in 1999 that federal drug czar General Barry F. McCaffrey stated, “We can't incarcerate our way out of [the drug] problem.” Many prominent New Yorkers who were early supporters of the harsh penalties prescribed by the Rockefeller Drug Laws have renounced their support for those laws. John Dunne, the former Republican senator and original sponsor of the Rockefeller Drug Laws, has said, “The Rockefeller Drug Laws have failed to achieve their goals. Instead they have handcuffed our judges, filled our prisons to dangerously overcrowded conditions, and denied sufficient drug treatment alternatives to nonviolent addicted offenders who need help.” The late Thomas A. Coughlin, III, who for fifteen years served as the state's Corrections Commissioner, concluded that under the drug laws the state was “locking up the wrong people for the wrong reasons.” Other critics have deplored the grave collateral consequences of the state's harsh mandatory sentencing scheme -- particularly for the low-income inner city communities of color that have been the primary focus of drug-law enforcement. In an article published recently in The Boston Review, the African American scholar Glenn C. Loury, a noted social conservative, called the war on drugs a “monstrous social machine that is grinding poor black communities to dust.” We urge you, as legislative leaders, to advance the critique of a sentencing structure that ties the hands of judges, grants prosecutors enormous and essentially unreviewable powers, and results in the routine miscarriage of justice. I respectfully submit that in order to pursue this inquiry the legislature must address the stark racial and ethnic disparities in the population incarcerated for drug offenses; the impact of drug-sentencing laws on the integrity of the criminal justice system; the relationship between rates of incarceration and crime rates as regards drug offenses; and the social and economic consequences of the high incarceration rates for drug offenses.
The racial and ethnic disparities among the population incarcerated for drug offenses in New York State do not reflect higher rates of offending among African Americans and Latinos.
In a relatively recent government study, a total of 1.8 million adults in New York (about 13 percent of the total adult population) reported using illegal drugs in the preceding year. Of those reported users of illicit drugs, 1.3 million – or 72 percent -- were white.
Moreover, research indicates that whites are the principal purveyors of drugs in the state. When the National Institute of Justice surveyed a sample of more than 2,000 recently arrested drug users from several large cities, including Manhattan, the researchers learned that “respondents were most likely to report using a main source who was of their own racial or ethnic background regardless of the drug considered.” Upon closer analysis these findings reveal that there are, indeed, many more drug sales in white communities than there are in communities of color, but the transactions that occur in white communities tend to escape detection because they take place behind closed doors in homes and offices.
Criminologist Alfred Blumstein, the nation's leading expert on racial disparities in criminal sentencing practices, has concluded that with respect to drug offenses, the much higher arrest and conviction rates for blacks are not related to higher levels of criminal offending, but can only be explained by other factors, including racial bias.
The over-representation of African Americans and Latinos in New York's prison population is the consequence of unequal treatment at each stage of the criminal justice process.
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.”
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. 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.”
• 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:
“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
- Racial disparity
- The integrity of our system of criminal justice
- Incarceration rates and crime rates
- The harm caused by the state's drug laws