As of January 1, 2002, there were 19,164 drug offenders in New York prisons-17,741 men and 1,423 women. Drug offenders constituted 40 percent of prison admissions in 2001, and represented about one-third of the total state prison population.4 New York sends people to prison on drug charges at a far higher rate, relative to population, than it does violent offenders.5 Since 1980, there have been 150,085 drug offender admissions to state prison.6
Few of the drug offenders sent to prison are major traffickers or violent, dangerous individuals for whom serious prison sentences are justified. Whether first time or repeat offenders, most of them were convicted of participating in voluntary, nonviolent, retail-level transactions between adults to obtain or sell drugs, or of functioning in other low-level roles in the drug trade:
· 60 percent of the incarcerated drug offenders were convicted of offenses in the three lowest classes of drug felonies-Class C, D, and E-which involve only minute drug amounts.7
Drug sentences in New York are keyed to two factors: the weight of the drug involved and whether the offender has a prior conviction. In most cases, drug felons receive an indeterminate term that includes a minimum and maximum period of imprisonment. A judge cannot impose a minimum sentence lower than that specified by statute, regardless of the nature of the offender's role in the offense or the threat he or she poses to society. For example, for a single $10 sale of cocaine, the lowest sentence a court can impose is a term of one to three years. If the offender has a prior conviction-as many drug offenders do-the lowest sentence is a term of four-and-one-half to nine years in prison. The sentences can be far worse: a first-offender convicted of involvement in the sale of two ounces of cocaine faces a mandatory minimum sentence of fifteen years, with a life-term maximum.
The unfairness of many drug sentences is compounded by their discriminatory impact. Prison sentences for drug offenses have been imposed disproportionately on members of racial and ethnic minorities-blacks and Hispanics constitute 94 percent of the drug felons sent to prison but only 31 percent of the state's population. Black men in New York are sent to prison on drug charges at eleven times the rate of white men.10 The racial disparity in incarceration for drug offenses bears little relation to racial differences in drug offending. Available evidence indicates that whites-who constitute 62 percent of New York residents-use, buy, and sell drugs in proportions that differ little from blacks. In absolute numbers, the total of whites who commit drug offenses exceeds the number of blacks. Yet blacks are more likely than whites to be arrested, convicted, and incarcerated on drug charges, because drug law enforcement efforts target participants in street-level, retail drug transactions in poor-primarily minority-urban neighborhoods.11 Incarceration for drug offenses has led to disproportionately high rates of incarceration of minorities and significant racial disparities in the state's incarcerated population (including persons in jail as well as prison):
· 6.4 percent of all of New York's black men and 3.0 percent of all Hispanic men aged eighteen to sixty-four are behind bars, compared to 0.5 percent of all white men.12
4 Data from the New York State Department of Correctional Services (hereinafter the Department of Correctional Services), on file at Human Rights Watch. In 1996, drug offenders constituted 31 percent of new prison admissions (excluding returned parole violators). See Human Rights Watch, "Punishment and Prejudice: Racial Disparities in the War on Drugs," A Human Rights Watch Report, vol. 12, no. 2, May 2000. Figure 6.
6 The Correctional Association of New York, "Basic Prison and Jail Fact Sheet," http://www.corrassoc.org/visiting_fact.html (accessed May 17, 2002).
8 Data for 2000 new court commitments provided by the New York State Division of Criminal Justice Services, on file at Human Rights Watch. Similar criminal history profiles were evident in prior years as well. See Human Rights Watch, "Who Goes to Prison for Drug Offenses?" New York does not differ from other states in this regard: nationwide, three quarters of drug offenders in state prisons in 1997 had no prior convictions for violent crimes; one-third had prior sentences limited to drug offenses. See Bureau of Justice Statistics, "Substance Abuse and Treatment, State and Federal Prisoners," (U.S. Department of Justice, 1997), p.2.
9 Although there are prosecutor-sponsored diversion programs in some parts of the state, they require prosecutorial consent, and they exclude many drug offenders from eligibility. Human Rights Watch, "Cruel and Usual."
12 The figures reflect incarceration in jails, prisons, and other adult confinement facilities. Human Rights Watch, "Race and Incarceration in the United States," A Human Rights Watch Backgrounder, February 2002. Table 2A, 4, and 5.