Testimony: 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

Thank you for holding these hearings and for the opportunity to address you regarding the current proposals to amend the Rockefeller Drug Laws.

As you know, both the Governor’s proposed bill and the Assembly proposal contain a number of different components. I am sure that you have heard, and will hear from a number of different speakers about different aspects of the proposals. In particular, with respect to the Governor’s bill I am sure you will hear of the disadvantages of eliminating parole, of the insufficiency of the changes to the second felon offender laws and of the creation of enhanced penalties and additional crimes, including five new marihuana felonies. I would also like to express concern over the proposed broadening of the so-called “bawdy house laws,” which would allow drug offenders to be evicted from their homes. Many would agree that the most effective means of fighting drug abuse is through treatment and reintegration into the community. Eviction is not a good first step on the road to recovery.

I would like to focus today on one particular aspect of reform which we believe is essential and which we do not believe is properly addressed, if at all, by either the Governor’s bill or the Assembly proposal: the severely disproportionate classification of non-violent drug offenses.

As this Task Force recognized in its recent report Criminal Justice Reform: A Time That’s Come, “drug abuse and addiction should be treated as a public health concern, rather than as a criminal justice problem.” Yet under current law, we not only seek to limit both use and abuse of drugs through criminal sanctions, we have inexplicably singled out drug offenses for the harshest sentences with mandatory imprisonment and special restrictions on plea-bargaining and other measures available to other offenders.

Why should a non-violent drug offender ever face a life sentence? Under current laws the penalty of life imprisonment is reserved for the most heinous crimes. Murder, kidnapping, arson and conspiracy to commit these crimes are all A-I felonies that carry with them a life sentence. But the fifth crime in that class is non-violent sale of two ounces or possession of four ounces of narcotic drugs. From the highest felonies on down, drug offenses have been assigned to levels sharply disproportionate to the nature of the offense. As children we all had workbook exercises with four pictures asking “which of these does not belong?” We should apply the principle we learned from those exercises to how we in New York State treat drug criminalization.

While the Governor’s proposal reduces the minimum sentence for an A-I felony, it leaves the lifetime maximum intact. The Assembly proposal leaves a judge discretion to impose a life sentence for non-violent drug offences. While the Assembly proposal seems to reclassify some offences by changing the weight limit, it does not appear to change the fundamental structure that allows non-violent drug offenders to face longer prison terms than rapists or those convicted of stalking menacing and other violent or threatening crimes.

It defies reason to suggest that possession of four ounces of a narcotic is itself so heinous an act that it warrants possible life in prison. The disproportionate classification of drug offenses at all levels seems to be based on a belief that if a person has a certain quantity of drugs, he must be a drug kingpin or responsible for other, violent crimes and therefore should be incarcerated. But in our democracy we must prove beyond a reasonable doubt that a person has committed a crime before we can punish him for it. We cannot say to a jury “this person sold two ounces of drugs therefore you must convict him of murder because surely he has killed, or will kill, someone.” But if we cannot convict him of murder on that basis, then by the same token we must not sentence him as a murderer. If the prosecutor believes that someone has committed a violent crime, then he must do his job and prove it to a jury beyond a reasonable doubt.

We catch a glimpse of this troubling shortcut in the bill submitted by the Governor, which allows defendants to appeal to reduce the minimum sentence for the harshest class of drug felonies (although the maximum of life remains) based on certain elements such as whether the defendant played a significant role in a distribution enterprise. By considering these elements at sentencing, but not including them in the definition of the offense, the prosecutor is not required to prove them at trial. But it is unfair to shift to the defendant the burden of showing he is not a “kingpin” or to allow the prosecutor to argue it to a judge by a lower standard than “beyond a reasonable doubt.”

The testimony submitted to the Senate Codes Committee by the New York State District Attorneys Association demonstrates quite dramatically the conviction of prosecutors that drug offenders must be violent. But we should all be deeply troubled by the effort to impose harsh sentences of incarceration on people for offenses that have not been proven. Robert Carney, the District Attorney of Schenectady County testified that “the myth that I will address is that most people imprisoned under drug laws are non-violent.” Attached to the submission made to the Codes Committee was a pie chart showing that 30% of drug offenders under custody as of December 31, 2000 have one or more prior violent felony convictions. But if 30% have prior violent felony convictions, then 70% — most of them – do not.

So how does Mr. Carney address this so-called “myth?” At a minimum he must be arguing that even though we haven’t convicted them, most of them are guilty. That position would be inconsistent with the principle that we are innocent until proven guilty. Actually, the arguments in Mr. Carney’s testimony are even more dismaying. He tells the Committee that “whether or not a drug dealer has previously been convicted of a crime involving violence, he or she is part of an industry permeated by violence in every aspect.” This is guilt by association. It argues in essence that even though an individual is not violent, others in his or her industry are, so we can incarcerate that person as though for a violent offense without convicting or even charging them with a violent offense. That is inconsistent with the principles of due process on which this country is founded. Mr. Carney also told the committee “it should not surprise us that people willing to poison other human beings with deadly drugs on a daily basis, are poised to use violence to advance their purposes.” Putting aside the obvious comment about other dangerous, but legal, products, we should not, must not imprison people for what we would not be surprised to learn they might be poised to do.

The violence that is associated with the drug trade derives not from the drugs themselves but from the criminalization of drugs. The New York State District Attorneys Association itself appears to recognize this, acknowledging that dealers “resort to violent self-help as a necessary alternative to seeking assistance from law enforcement.” But if the drug laws lead to violence, then surely we can best reduce violence by changing those laws. Certainly we should not permit prosecutors to avoid their obligation to prove violent behavior by simply sentencing any drug offender, violent or not, to harsh sentences usually reserved for violent crimes.

As children we all had workbook exercises with four pictures asking “which of these does not belong?” Murder. Arson. Kidnapping. Possessing or selling drugs. More and more New Yorkers are concluding that one of these things is not like the others. We hope that Governor Pataki and members of the Legislature will take heed and apply those lessons to solving the problem of New York’s drug laws.