THE ROCKEFELLER DRUG LAWS...
Myths and Facts
MYTHS AND FACTS ABOUT THE ROCKEFELLER DRUG LAWS
Myth: The Rockefeller Drug Laws "have been effectively utilized by law
enforcement to protect our communities.."
Fact: The Rockefeller Drug Laws have not succeeded in making our
communities
safer. Today, up to one million New Yorkers use drugs and an estimated
500,000 are addicts or abusers. Drugs are cheaper and more readily
available to the public than they were 20 years ago. NY's highest court
acknowledged that the "harsh mandatory treatment of drug offenders. has
failed to deter drug trafficking or to control the epidemic of drug abuse in
society, and has resulted in the incarceration of many offenders whose
crimes arose out of their own addiction and for whom the costs of
imprisonment would have been better spent on treatment and rehabilitation."
Myth: "The extraordinary statewide reductions in violent crime that
we have
enjoyed in recent years have been achieved, in significant part, by enforcing
tough drug laws.."
Fact: Violent crime was increasing until the mid 1990's, at the
same time
that significantly more drug offenders were being imprisoned. Then, violent
crime began dropping dramatically in localities across the nation, regardless
of their policing tactics, the harshness of their drug laws, or the extent to
which the laws were enforced, all of which vary from state to state and
community to community. There is evidence that drug treatment reduces
crime associated with the narcotics trade more effectively than incarceration:
a 1997 study by RAND's Drug Policy Research Center concluded that treatment,
significantly less costly than imprisonment, reduces 15 times more serious crime
than mandatory minimum sentences.
Myth: Most people imprisoned under our drug laws are violent
offenders.
Fact: According to official statistics from the NYS Dept of
Correctional
Services (DOCS), drug law offenders are overwhelmingly non-violent. Nearly
80% of drug offenders in prison have never been convicted of a violent
felony; about half have never even been arrested for one.
Myth: The majority of imprisoned drug offenders are drug kingpins.
Fact: Of the over 9,000 drug offenders sent to state prison in
1998, only
about 50 were convicted under the most serious provision of the drug laws.
Nearly 60% of the drug offenders in NYS prisons today were convicted of
selling or possessing only small drug amounts-amounts that are classified
under the 3 lowest felony categories. The vast majority of offenders
convicted of selling are not kingpins or in high-level drug trafficking
positions.
Moreover, many minor dealers are drug abusers who sell to
support their own habits. A Manhattan Institute report co-authored by
criminologist John J. DiIulio, Jr. concluded that, far from addressing the
root causes of why people sell drugs, "the main effect of imprisoning
drug sellers is merely to open the market for another seller."
Why is this the case? The main criterion for guilt under the laws is not the
offenders' role in narcotics transactions, but the amount of drugs in their
possession at the time of arrest. Drug kingpins rarely carry narcotics;
they hire other people to transport drugs for them. These "foot soldiers"
get caught literally holding the bag. The drug laws' weight provision
provides an incentive to police and prosecutors to concentrate on minor
dealers and users who are on the street with drugs in their possession,
rather than on the drug trade's major profiteers.
Myth: ".sweeping changes that would effectively dismantle [the
drug] laws.
would devastate our communities and cripple law enforcement efforts to curb
drug distribution."
Fact: There is no statistical basis for this claim. Even if
the drug laws
were repealed, judges would have the authority to sentence drug offenders to
prison. Judges would make decisions after weighing the views of the
prosecution and the defense. Mandatory sentencing schemes do not abolish
discretion; they remove it from the judge's hands and place it in the
prosecutor's office. Whoever sets the charge-the district
attorney-determines the outcome of the case. In America's adversarial
criminal justice system, these laws stack the deck in favor of the
prosecution. The primary reason the NYS Association of DAs aggressively
opposes even the most modest proposals to amend the drug laws is that such
measures would diminish their power. Requiring the consent of prosecutors
to divert offenders distorts the American criminal justice system.
Myth: Drug law reformers assert a "largely mythical claim that our
judges'
hands are tied by laws which fill our prisons with minor drug offenders."
Fact: A recent Legal Action Center report revealed that in 2000, judges
were
unable to divert approximately 8,700 drug offenders to treatment who would
have been eligible for diversion under Assembly member Jeffrion Aubry's
(D-Queens) repeal bill (A-2823), and almost 5,000 drug offenders under the
Assembly reform bill (A-8888; The Assembly reform bill does not allow
diversion for offenders who have any history of violence). There are over
21,000 drug offenders incarcerated in NYS prisons today; in 2000, over 44%
of all people sent to state prison were drug offenders-the vast majority of
whom were minor drug offenders with no history of violence. It is
incontrovertible that the drug laws have handcuffed judges, filled our
prisons with minor drug offenders, and denied sufficient alternatives to
offenders who need help.
Myth: If judicial discretion is restored, there will be greater
sentencing
disparities.
Fact: The possibility for sentencing disparities exists whether judges or
DAs have discretion. However, while judges make decisions in public that
are subject to review by higher courts, DAs make decisions behind closed
doors with no chance for public or legal review. As Justice James Yates of
the NY County Supreme Court stated: "Under current law, that determination
[of what sentence is given to a particular defendant] is made by an
assistant district attorney who is not bound by written public guidelines or
standards, is not compelled to hear arguments in favor of reduction, is not
required to explain or justify the decision, is not held accountable by the
public or through judicial processes and the decision is not reviewable by
any court . . . . [In contrast], in a system where a judge has authority to
set sentences, there are proceedings on a record in public, with advocacy on
both sides and a decision by a neutral party who must explain his or her
decision and can be held accountable."
Myth: Many more people of color are sent to prison for drug crimes than
whites because they buy, sell and use drugs in greater numbers.
Fact: Although government studies show that the majority of drug users
and
sellers are white, 94% of drug offenders in state prisons are African-American
and Latino. This stark racial discrepancy occurs because law enforcement
concentrates on poor communities of color where most drug transactions take
place on the street and minor dealers and users are more easily arrested.
Police generally ignore middle and upper-class areas where the majority of
people buy and use drugs behind closed doors. As Chicago Police
Department
Narcotics Division Chief stated in 1990, "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."
Myth: The drug laws are beneficial to communities throughout New York
State.
Fact: While the drug laws do benefit upstate, rural, mainly white
areas,
they drain resources, funding and political power from poor NYC communities
of color. The need for economic development in depressed upstate areas has
been met by the construction and staffing of prisons. Since 1982, NY has
opened 38 prisons, all in rural areas represented by Republican State
Senators. 93% of NYS inmates are housed in prisons located in Republican
Senate Districts. These prisons receive more than $1.1 billion annually to
cover operating expenses and employ almost 30,000 people. Although the
vast
majority of prisons are located in mainly white, upstate areas, over 65% of
the state prison population comes from a handful of poor NYC communities.
The US Census Bureau records inmates as residents of the town where they are
incarcerated, not where they are originally from, where their families still
reside. NY has thus transferred thousands of people of color from its
inner
cities to upstate areas and, along with them, the government funding and
electoral influence that are based on district population.
Myth: We can win the "war on drugs" if we just give it more money.
Fact: Even though the so-called war on drugs has been "fought" for
decades
and costs billions of dollars each year, illegal drugs are easily available,
substance abuse remains one of the country's most difficult problems, and
prison recidivism rates for drug offenders hold steady. Ill-advised drug
war policies like the Rockefeller Laws have done more harm than good: they
ruin lives, tear apart families, divest political power and funding from
poor communities of color, distort the criminal justice system, and skew
government priorities toward prisons and away from education and
alternatives to incarceration. These alternatives are far less expensive
and more effective in reducing crime than prison. Former NYS Court of
Appeals Chief Judge Charles Breitel stated that the Rockefeller Drug Laws'
"pragmatic value might well be questioned, since more than half a century of
increasingly severe sanctions has failed to stem, if indeed it has not
caused, a parallel crescendo of drug abuse."
Myth: Children are protected by locking up drug users and sellers
for long
periods of time.
Fact: Incarcerating parents for long prison terms does not reduce the chance
that their children will use or sell drugs. In fact, disruption of
families
by incarceration greatly increases the probability of children from such
families getting into trouble with the law. The best way to raise the next
generation of drug abusers is to put a generation of fathers and mothers in
prison.
CONCLUSION
The Rockefeller Drug Laws have eliminated the historic and proper role of
judges, as neutral arbiters, to balance appropriate factors in the process
of achieving justice. They have also proven ineffective, wasteful, and
racially biased. In the interest of justice, efficiency and public safety,
policy makers should repeal the drug laws and restore judicial discretion.
Governor Pataki's drug law reform proposal (S-4237) allows for judicial
discretion in drug cases only to a very limited degree; the Assembly reform bill
(A-8888) applies judicial discretion to a broader range of cases, but
includes far too many exceptions. The REPEAL BILL (A-2823) introduced by
Assembly member Jeffrion Aubry (D-Queens), Chair of the Committee on
Corrections, is the only proposal that would restore sentencing discretion
to trial judges in all drug cases, enable full retroactive review of
sentences for prisoners currently incarcerated under the laws, significantly
expand alternatives to incarceration (including education, drug treatment
and job training programs), and reduce sentence lengths for drug offenses.
Passing the Aubry repeal bill (A-2823) is a critical first step in reversing
a costly and ineffective prison expansion policy and the practices of racial
injustice carried out by our government.
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