Rockefeller Drug Law Repeal

Background

With the active support of then Governor Nelson Rockefeller, the New York Drug Laws were enacted in 1973, instituting lengthy prison sentences for a wide range of drug offenses. The law was amended in 1979 mainly to reduce the penalties for offenses involving marijuana. The punishments required by this law for the possession or sale of heroin, cocaine, and other hard drugs still rank among the most severe in the nation.

For example, the harshest provision of this statute mandates a judge to impose a prison term of no less than 15 years to life for anyone convicted of selling 2 ounces or possessing 4 ounces of a narcotic substance. The penalties apply without regard to the circumstances of the offense or the individual's character or background. Whether the person is a first-time or repeat offender, for instance, is irrelevant.

Problems

The Expense
As of December 31, 1998, there were over 23,000 drug offenders locked up in New York State prisons. It cost the state over $2 billion to construct the prisons to house these people. And the operating expense for confining them comes to over $715 million per year.

Prison Overcrowding
To accommodate the tremendous growth in the inmate population caused in part by the application of the Rockefeller Drug Laws, the State has spent extraordinary sums each year on building new prisons. From 1981 through 1996, the State added about 40,000 beds to its prison system, at an average construction cost of $100,000, for a total capital expense, not counting debt service, of approximately $4 billion. At the close of 1997's legislative session, policymakers approved another 3100 prison beds, all double-celled, virtually all expected to hold inmates charged with disciplinary infractions, who will be kept together in their cells for at least 23 hours a day. It cost about $300 million to build these new facilities. Moreover, in his fiscal year 1999-2000 budget, Governor Pataki has proposed allocating $360 million to build two new double-celled prisons that will each confine 1,500 inmates. It will cost the state nearly $100 million every year to operate these maximum-security facilities.

Despite these enormous expenditures, New York's prison expansion has not kept pace with the increase in the number of inmates. The State's corrections system is hobbled by crisis conditions. Prisons are overcrowded; there are not enough programs to productively occupy prisoners; and, idleness and tension levels are high. The system has been forced to double bunk or double cell over 12,000 inmates --an especially hazardous arrangement given the presence of tuberculosis and its potential to spread among inmates and staff. The State has also been forced to rush a large number of prisoners out the back door of the system, through work release and day reporting programs that have not been able to provide participants with adequate support and supervision.

The Skewed Effect on Law Enforcement
These statutes result too often in the arrest, prosecution, and long-term imprisonment of minor dealers or of persons only marginally involved in the drug trade. Major traffickers usually escape its sanctions. The problem is that the Rockefeller Drug Laws place the main criteria for culpability on the weight of the drugs in a person's possession when he or she is apprehended, not on the actual role he or she plays in the narcotics transaction. Aware of the law's emphasis, drug kingpins are rarely foolish or reckless enough to be caught carrying narcotics; whereas a teenage mother, employed as a courier by that same kingpin, is more likely to be picked up on the street and charged with a serious felony for having a small amount of drugs in her possession.

Another criticism of the law is that major dealers often take advantage of its provisions permitting lifetime probation sentences in exchange for cooperation in turning other drug offenders over to the authorities. Less culpable persons generally do not possess information that would be useful to prosecutors. These people often decline to plea bargain and insist on a trial instead. If these persons are found guilty, they frequently must be sentenced to a mandatory minimum term of 15 years to life in prison.

Our overriding point here is that this statute, as a principal weapon of, and as it is implemented in, the so-called 'War Against Drugs', results directly in the following misguided practice: law enforcement agencies focus their efforts on those minor actors in the trade who are the most easily arrested, prosecuted, and penalized, rather than on the middle-and high-level criminals who are drug dealing's true masterminds and profiteers.

The Injustices
The Rockefeller Drug Laws result in many individual cases of injustice, where people with no histories of violent or predatory behavior, who function barely on the margins of outlawed drug markets, are slammed with the harshest punishments our criminal justice system can dispense. For example, the Correctional Association's research in New York showed that 95 percent of the women charged as drug couriers in our sample had no previous criminal involvement. In New York, murderers, arsonists and kidnappers face the same penalties as 'drug mules'. Rape, the sexual abuse of a child and armed robbery carry lesser sanctions.

Our research showed also that many drug mules, often poor and uneducated women, are coerced by threats of violence or tricked into transporting drugs and are therefore hardly culpable of the charges. However, many of them, facing 15 years to life in prison, plead guilty to a lesser offense in exchange for a much shorter term of incarceration.

Some who are mothers and primary caretakers of children say they are afraid to risk long-term separation from their families by presenting their cases at trial. In effect, and in a mockery of the justice system, the Rockefeller Drug Laws are being used to bludgeon guilty pleas from people who are facing long prison sentences and do not have the resources or savvy to defend themselves.

Racial Matters

The Drug Laws have a harsh and disproportionate impact on communities of color. Studies by the FBI and the National Institute for Drug Abuse have shown that whites make up the vast majority of people who consume drugs. There is also evidence to suggest that more than half of drug dealers are white. Yet, most of the people doing time in New York State prisons for a drug offense, over 90% in fact, are African-American or Latino. The specific ethnic breakdowns are: blacks comprise 48.7% of the drug offenders in state prison; Hispanics, 45.5%; whites, 4.9%.

If larger numbers of whites participate in buying and dealing drugs, why are so many more blacks and Latinos in prison for these crimes? The problem -- and it is a problem that is at least partially a function of having these drug laws on the books -- is that law enforcement efforts focus almost entirely on inner city communities of color. In New York City, for example, the police squads carrying out recent anti-drug initiatives have been sent solely into such areas.

Much of the white drug activity takes place behind the closed doors of corporate offices and suburban living rooms. By contrast, much of the drug trade in minority neighborhoods is carried out on the streets where it is much easier to make arrests.

In addition, there is probably more violence involved in the drug trade in our low income, inner city communities. The drug trade there is more visible, more disruptive to the stability of the community and, therefore, there is a greater call for a police response.

Finally, white middle and upper class people involved in drugs often have the resources and political influence to resist law enforcement attempts to punish them. Well-paid, high-powered attorneys are just one of the means such people can use to derail the effective prosecution of their crimes.

The head of the narcotics division of the Chicago Police Department may have very well been speaking for urban police leaders everywhere when he said: "There is as much cocaine in the Stock Exchange as there is in the black community. But those guys are harder to catch. Those deals are done in office buildings, in somebody's home, and there is not the violence associated with it that there is in the black community. But the guy standing on the corner, he's almost got a sign on his back. These guys are just arrestable."

The rationale for the policy that produces this outcome might make sense superficially, but the practices are ultimately discriminatory and have a devastating impact -- by uprooting individuals and breaking up families -- on communities of color. Repealing the Rockefeller Drug Laws would remove a regressive tool from law enforcement's arsenal and would inevitably lead to a more balanced approach on the part of prosecutors and police in the fight against drug abuse.

Proposed Correctional Association Reform

The Correctional Association urges repealing the Rockefeller Drug Laws, so that prison terms would no longer be mandated for drug offenders convicted of the least serious crimes.

Flexibility in sentencing would allow judges to utilize less costly and more productive punishments for many of the minor drug offenders who have taken up increasing amounts of valuable prison space because of the impact of the Rockefeller Drug Laws. It is important to note that more than 5,600 people are locked up in New York on a conviction for merely possessing narcotics. It costs the state about $180 million a year to keep these individuals confined.

An Effective Alternative Punishment

The most suitable alternative punishment for these non-violent, drug-involved offenders is intensive supervision probation that includes such features as day reporting, community service, job training, and mandatory participation in proven drug treatment programs.* Implemented properly, this program can closely monitor the offenders' behavior while simultaneously providing them with support services and making sure, where appropriate, that they repay the community and/or the victim for the property stolen or damage done.

The added value of a well-run alternative punishment is that it gives selected offenders a critical opportunity to become law-abiding members of society. Under current practices, too many people are unnecessarily relegated to the grim and criminogenic world of state prison.

Benefits Of The Correctional Association Proposal

Removing the Rockefeller Drug Laws from the books would have several positive effects:

1. Expanding the use of effective alternative punishments for suitable offenders, thereby reducing the use of unnecessary incarceration, increasing the availability of needed drug treatment, and helping to make our criminal justice system more fair and rational;

2. Saving the state substantial sums of money by reducing the number of persons occupying expensive prison space who do not have to be locked up for public safety reasons;

3. Returning appropriate discretion to judges who could then individualize the sentencing decision for the non-violent, low-risk offender. In this way scarce prison resources could be better focused upon the most serious offenders; and

4. Providing meaningful relief to the state's prison overcrowding problem, thereby helping to make the state's prisons safer for inmates and corrections officers and more manageable for prison administrators.

For more information on this issue, please contact Robert Gangi, Executive Director of the Correctional Association, at 212-254-5700

February 1999

* A 1997 Study by RAND's Drug Policy Research Center found that treatment is the most effective option in the fight against drug abuse, reporting that treatment reduces 15 times more serious crime than mandatory minimum sentences. Several studies sponsored by the National Institute on Drug Abuse have also shown that drug treatment programs, on the whole, are successful in reducing the levels of drug abuse and crime among participants and in enhancing their ability to hold a job.