VOLUME 3, ISSUE 350 | Dec. 09 - 15, 2004


Albany Passes Drug Law Reform

After years of stalemate, lawmakers pass legislation that Pataki is expected to sign


The New York State Legislature voted on Tuesday to reform New York’s stringent “Rockefeller” drug laws, among the harshest in the nation, and eliminate stiff mandatory minimum sentences for first-time drug offenders caught selling small amounts of controlled substances.

Gov. George Pataki, a Republican, is expected to sign the measure into law.

If this vote in favor of reforming the drug laws is the last word and the reform efforts stop, then the changes provided by the new law are at best moderate advances.

On the other hand, if the vote is only the first chapter in a book that charts the tale of how prohibition ended in New York, then the vote is historic. The tide may have changed.

Tom Duane, the gay Democratic state senator from Manhattan, immediately warned that complacency would be dangerous.

“Everybody is going to say: Oh, congratulations, we did this big reform, and now we can forget about it for years,” he said.

Duane is right. The hardest work remains unfinished.

Manhattan District Attorney Robert Morgenthau points out that reaching an agreement was important given the contentious and frustrating history of negotiations on this legislation. But he is still studying the impact of the legislation before reaching any conclusions.

Nevertheless, Democratic Assembly Speaker Sheldon Silver argued that the Republicans in the Senate acted under pressure from New York voters. In November, Albany County voters ousted their hard-line district attorney and elected David Soares, who campaigned for more lenient drug laws. His election set off shock waves among the state’s 62 district attorneys.

Manhattan’s David Paterson, the Senate’s minority leader, led a highly successful election effort that added three Democratic seats, and perhaps a fourth pending the results of a disputed Westchester election. Paterson immediately pledged to start pressing for new reforms when the Legislature reconvenes in January. The Senate Republican majority has clearly acknowledged the need for flexibility on drug policy. From this perspective, this bill could be the first of many that to revamp New York drug laws.

The new law brings some immediate benefits. About 400 prisoners subjected to the draconian provisions of the Rockefeller drug laws—named for the 1970s governor who after years positioned as a New York liberal suddenly adopted a tough approach to fighting crime—will have their time recalculated, and become eligible for release. New convicts found guilty of lesser drug crimes will be able to reduce their sentences by taking courses and enrolling in drug treatment programs.

Under the new law, first offenders will get more lenient sentences, mostly because the drug weight levels for the most serious prison terms are doubled. The “A-1” felony that brought about the sentences of 25 years to life will now carry a 20-year maximum, a limited but positive change. Secondly, the threshold amount of drugs that lead to these most serious charges is increased from four to eight ounces. Mandatory life sentences are gone.

These positive changes, unfortunately, will apply to only a small number of cases.

“A” felonies are the most serious and draw the biggest sentences, but “B” felonies represent the most common drug charges prosecuted

The new legislation slightly reduces sentences for “B” felonies. A buy and bust operation, for example, frequently yields the “B” charge of criminal sale of a controlled substance, as a stop and frisk often leads to the charge of criminal possession with the intent to sell. A first-time offender under such a scenario can face penalties of between one and nine years in state prison. Those are essentially the same sentences as were handed down under the existing Rockefeller laws. For the police, it will be business as usual.

The new charges are still based on the weight of the drug confiscated and in the case of “B” felonies the weight is set low. The judge has limited discretion and cannot divert the defendant to a drug treatment program, nor even in the interest of justice examine the role that the arrested person played in the transaction. A “mule,” used to carry drugs, can serve the same sentences as “the drug kingpin.”

Bob Gangi of the Correctional Association, a leader in the Drop the Rock Campaign, warns that harsh sentences are still in effect and that the major problems caused by these laws are left “unsolved.”

Supporters of the new legislation recognize that the basic philosophy of the existing law is still intact, but under new sentencing guidance. The judge imposes the sentence without having the parole board second-guess his decision. In this limited sense, judicial discretion is increased.

But no one believes that New York has embraced a new philosophy for facing the challenges posed by drug use, and until Albany takes this step, Gangi warns, “No one should go asleep.”

However, the election of Soares in Albany and the fact that prosecutors did not participate in the final legislative negotiations have left drug reformers with a sense of possibility—a feeling that momentum is on their side.

One drug law reformer, Michel Blaine, who represents the Drug Policy Alliance in Albany, told supporters, “We believe that given some current changes in the political climate in Albany, people are beginning to rethink bad drug policy.”

At a drug reform fund-raiser at the home of Dr. Mathilde Krim, who chairs the American Foundation for AIDS Research (AmFAR), on the night the new legislation passed, a feeling of optimism was in the air.

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