The Association suggests that if the Drug Law Reform Act becomes law, New York communities will suffer from increased violence at the hands of dangerous "predatory" drug offenders left free on the streets. It goes so far as to make the incredible statement that for many drug offenders it's "a small step" from selling drugs to shooting enemies. The state's interest in securing an effective and meaningful reform of its outdated sentencing laws is ill-served by such "scare tactics."
Without any substantiation, the Association asserts most drug offenders are "predatory" dealers, many of whom have committed violent crimes. In fact, most of the men and women convicted of drug offenses are low-level, nonviolent offenders who engage in consensual sales transactions with other adults or who perform low level tasks, such as transporting drugs from one place or person to another. Many of them are addicted. Whether guilty of possession or sales offenses, whether first or repeat offenders, few pose such a serious threat to community safety that severe prison sentences are warranted.
According to data from the New York State Division of Criminal Justice Services, 30.7 percent of the drug felons sentenced to prison last year had no prior felony convictions and another 46.1 percent had prior convictions limited to nonviolent felonies. Only 23.2 percent had any prior violent felony convictions. Less than one percent had ever been convicted of murder or voluntary manslaughter. The prior drug history of most offenders sent to prison consists of convictions in the lowest classes for drug felonies. In 1997, for example, 89 percent of all drug offenders sent to prison who had prior drug convictions had been previously convicted of only Class C, D or E felonies.
In our judgment the Drug Law Reform Act would significantly improve current sentencing laws. It would help reduce the unnecessary incarceration of low-level offenders, increase the availability and appropriate use of alternatives to incarceration, and avoid unnecessarily severe sentences that violate basic norms of fairness and proportionality.
The Act provides judges with an increased range of sentencing options. It also significantly increases their ability to divert addicted drug offenders to substance abuse treatment programs instead of prison. These welcome reforms will increase the ability of judges to tailor sentences appropriate to the circumstances of each offender. When appropriate, a judge can impose lengthy prison sentences. But unlike the current sentencing laws, the Act does not force judges to hand down disproportionately severe sentences.
The state's district attorneys should champion these reforms. Instead, they raise numerous, mostly spurious, objections. The bottom line would appear to be that the district attorneys do not want reforms that lessen the sentencing power they now wield. Their most strenuous objections are targeted at increasing judicial authority over diversion decisions. Under existing prosecutor-sponsored diversion programs, prosecutors control which defendants can enter substance abuse treatment programs instead of prison. The Assembly bill would give far greater opportunities to judges to make that determination, regardless of prosecutorial consent.
The Association's letter suggests that district attorneys are better able than judges to make sentencing and diversion determinations because they have more information about a defendant's conduct and criminal history. This is, of course, information they can and should provide to the court. Under the Drug Law Reform Act, district attorneys would continue to advocate particular sentences, give their opinion concerning the appropriateness of substance abuse treatment diversion, express their concerns about an offender's progress in treatment, or otherwise provide the court with pertinent facts. But the ultimate sentencing determination in most cases would be where it should be-with an impartial judiciary whose decisions (unlike those of prosecutors) are public and reviewable.
We hope the New York State District Attorneys Association will reconsider its opposition to the Drug Law Reform Act. Public safety and the reduction of substance abuse will be well served by new sentencing laws that permit more proportionate and more sensible sentences, which provide substance abuse treatment instead of prison for addicted offenders, and which restore much needed judicial discretion to the criminal justice system.
Sincerely,
Jamie Fellner
Associate Counsel
cc. Speaker Sheldon Silver
Governor George Pataki
