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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
53% 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—usually 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 Assemblymember
Jeffrion Aubry’s
(D-Queens) repeal bill, and almost
5,000 drug offenders under the
Assembly reform bill. (The
Assembly reform bill does not allow
diversion for offenders who have
any history of violence.)
There are almost 15,500 drug offenders
incarcerated in NYS prisons today;
in 2004, over 35% 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,
92% 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
allows for judicial discretion
in drug cases only to a very limited
degree; the Assembly reform bill
applies judicial discretion
to a broader range of cases, but
includes far too many exceptions.
The REPEAL BILL introduced
by Assemblymember 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 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.
Drop
the Rock c/o The Criminal Justice
Alliance
135
E. 15th St, New York,
NY 10003 Tel. (212) 254-5700 Fax
(212) 473-2807
www.droptherock.org
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