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Who Goes to Prison for Drug Offenses?
A Rebuttal to the New York State District Attorneys Association

In an effort to refute criticism of New York’s drug laws, the New York State District Attorneys Association (NYSDAA) has recently issued a document titled, “New York State Drug Laws: Myth and Fact.1 This report ignores or misrepresents key data on drug offenders in New York’s prisons.


  • Thousands of low-level drug offenders are sent to prison

  • Most Drug Offenders are Nonviolent

  • New York drug offenders face harsh sentences
  • There are legitimate grounds for differences of opinion about how best to reduce drug abuse, promote strong communities and ensure a fair criminal justice system. But the public is ill-served when officials sworn to serve justice produce documents that obscure rather than illuminate the facts.

    Mandatory minimum sentencing laws enacted twenty-five years ago compel the over-incarceration of drug offenders and disproportionately harsh sentences. Judges cannot fashion a punishment that fits the crime because the law require prison terms keyed to two facts: the weight of the drug involved and whether there were prior felony convictions.

    The preponderance of drug offenders incarcerated under mandatory sentencing laws are nonviolent men and women convicted of low-level drug offenses.2 Whether repeat or first time offenders, whether convicted of possession, sale, possession with intent to sell or attempted sale, most of these offenders are guilty of minor crimes for which they should be held accountable—but for whom prison is a misguided sentence.

    FACT: Thousands of low-level drug offenders are sent to prison.

    Since 1980, there have been 126,734 commitments to New York prisons for drug offenses. Whether first-time or repeat offenders, most were street-level dealers selling small quantities, bit-players in the drug trade, addicts trying to support their habit.

    In 1998, 9,063 drug offenders were sent to prison. Most were convicted of low level offenses. 63% were sent to prison convicted of the lowest level drug offenses—felony classes C-E.

    · One in three (31.8%) of drug offenders sent to prison were first offenders with no prior felony convictions.3

    Current Population of Drug Offenders in Prison

    There are currently 22,386 men and women in New York prisons convicted of drug offenses 6,383 were first offenders and 15,922 were repeat offenders.

    13,162 of the drug offenders behind bars were convicted of offenses in the three lowest felony classes—classes C, D, or E—which involve only minute drug amounts.

    · 89% of the repeat drug offenders were convicted of minor crimes (class C, D or E).

    · Only 624 people are in prison for the most serious drug offenses, the A-1. Another 2135 were convicted of A-II offenses.

    · One in four incarcerated drug offenders was convicted of simply possessing drugs. The rest were convicted of possession with intent to sell, attempted sale or sales. Whether guilty of possession or sales-related offenses, most of the incarcerated offenders were low-level offenders involved with small amounts of drugs.4

    · New York has a much greater proportion (28.5%) of first time drug offenders with no prior convictions behind bars than the national average (17.4%).5

    FACT: Most Drug Offenders are Nonviolent.

    Most drug offenders in prison are men and women whose illegal conduct involves non-coercive transactions to obtain, possess and/or sell drugs. Supporters of existing drug laws argue that even if their current offense is nonviolent, most drug offenders are nonetheless dangerous, violent individuals. The facts are otherwise:

    · Three out of four (77.5%) drug offenders sent to prison have never been convicted of a violent felony.

    · One in three (31.8%) has no prior felony convictions for any crime.

    Data on incarcerated drug offenders nationwide recently published by the U.S. Department of Justice6 indicates similar pattern of nonviolent drug offenders: 76.4%.of drug offenders in state prisons in 1997 had no prior convictions for violent crimes; 32% of drug offenders had prior sentences limited to drug offenses and 17.4% were first offenders with no prior convictions for any kind of crime.7

    FACT: New York drug offenders face harsh sentences.

      · Mandatory minimum sentencing laws impose excessively harsh sentences on drug offenders.

    Table 1

    Mandatory Sentences for Unlawful Sale and Possession of Narcotic Drugs

    Felony Class

    First Offender

    Second or Repeat Offender






    Possession: 4 oz.

    Sale: 2 oz.

    15 - 25 years

    15 - 25 years





    Possession: 2 oz.

    Sale: ½ oz.

    3 - 8 1/3 years

    3 - 8 1/3 years



    6-12 ½ years

    life imprisonment

    Possession: any amount with intent to sell; ½ oz. simple possession

    Sale: Any amount

    1 year - up to 1/3 of max

    1 year - up to 1/3 of max

    3 - 25 years

    3 - 25 years

    4 ½ - 12 ½ years

    9 - 25 years

    Possession: 1/8 oz.

    Sale: n/a

    1 year - up to 1/3 of max**

    1 year - up to 1/3 of max

    3 - 15 years

    3 - 15 years

    3 - 7 ½ years

    6 - 15 years

    Possession: 500 mg*

    Sale: any amount

    1 year - up to 1/3 of max**

    1 year - up to 1/3 of max

    3 - 7 years

    3 - 7 years

    1 ½ - 2 years

    3 - 4 years

    Source: N.Y. Penal Law, Controlled Substance Offenses, Art. 20 and N.Y. Penal Law § 70.00, Sentence of Imprisonment for Felony.
    * Pure weight. Other weights are aggregate, including any mixture containing drug.
    **In certain cases the court may impose a determinate sentence of one year or less for Class C and D drug felonies. N.Y. Penal Law § 70.00 (4).

    As seen in Table 1, the minimum sentences for a first offender person guilty of selling two ounces of cocaine is 15 years to life, the same sentence as given a murderer. A-I sentences are not restricted to major traffickers and violent king-pins. Because the crime is determined by the weight of the drugs involved, one-time couriers or “mules” with no prior records and peripheralfigures—e .g., girlfriends of dealers who are bystander s to drug transactio ns—are convicted of A-1 felonies and receive 15 years to life sentences.8

    · The NYSDAA attempts to obfuscate the impact of the law by pointing out that many people indicted for A-1 drug felonies are not sent to prison. That many of those arrested for A-1 felony are not subsequently convicted of that crime has no bearing on the fairness of the sentences imposed on those who are convicted of A-1 felonies.

    · Prison sentences for lesser drug offenses are also significant, particularly if the offender is sentenced as a repeat offender.

    · Even if an offender does not serve the maximum period behind bars, his or her liberty remains conditional until the maximum period is completed. A minor violation any time can lead to a return to prison for the remainder of the sentence.

    Drugs and violence:

    Harsh sentences for drug offenses are frequently justified with the argument that drugs encourage or cause violence. The NYSDAA cites several studies showing drug use linked to violent crimes. Most of these studies address alcohol as well as drugs. In fact, alcohol is more closely associated with crimes of violence than drugs.

    · 41.7% of state prisoners nationwide sentenced for violent offenses were under the influence of alcohol at the time of the offense, compared to 29.0% under the influence of drugs.9 10

    · According to the National Center on Addiction and Substance Abuse, “Alcohol is a bigger culprit in connection with murder, rape, assault and child and spouse abuse than any illegal drug.”11

    The Need for Drug Law Reform

    Human Rights Watch believes mandatory minimum sentencing for drug offenders—be they first or repeat felony offenders—yields disproportionate sentences that violate basic norms of justice and common sense. Marginal nonviolent players in the drug trade are incarcerated at enormous cost to the state, their communities and families—not to mention the personal toll and the difficulties each will face reintegrating into lawful society after release from prison. The imprisonment of over one hundred thousand offenders has, moreover, had scant impact on the use or availability of drugs. Police readily acknowledge that for every low-level drug seller taken off the streets, another person quickly fills his or her place.

    Prison is a resource that should be used sparingly and only to the extent necessary to protect society from dangerous criminals. Alternatives to incarceration, including drug treatment andcommunity-based sanctions, should be relied on for most low level nonviolent defendants who pose scant danger to anyone. Reforming mandatory minimum sentencing laws to return sentencing discretion to the judiciary would necessarily constrain the unbridled power prosecutors currently wield over the lives and futures of drug offenders. Prosecutors may protest, but justice will be better served when judges are returned to their rightful role in the criminal justice system.

    1 New York State District Attorneys Association, “New York State Drug Laws: Myth and Fact,” January 1999.

    2 Data in this update is based on information provided by the Department of

        Correctional Services and the Department of Criminal Justice Services. DCJS provided information on offenders sentenced to prison in 1998. DOCS data reflected population of sentenced drug offenders under custody as of 12/31/98.

    3 DCJS data for drug offenders sentenced in 1997.

    4 The NYSDAA suggests most of those convicted of simple possession are more “dangerous” than they might otherwise seem because most had originally been charged with drug sales. The fact that police officers routinely make arrests on the highest possible charges to give prosecutors room for plea bargaining has scant bearing on the soundness of mandatory drug sentences.

    5 "Prior History of Drug Offenders Sentenced to Prison in 1997,” New York State Division of Criminal Justice Services, December 1998 on file at Human Rights Watch. DCJS data also shows that of the men and women sentenced to prison for drug offenses in 1997, 50.9% had no prior drug felony convictions, 17.2% had never been arrested for any felony, and only 9.7% had prior convictions for both drug and violent felonies.

    6 6U.S. Department of Justice: Office of Justice Programs, Bureau of Justice Statistics, “Substance Abuse and Treatment, State and Federal Prisoners, 1997,” NCJ 172871, (Washington, D.C.: DOJ, January 1999).

    7 The NYSDAA misuses statistics from a 1991 Department of Justice survey of state prisons to argue that prisons are populated by inmates who are “repeat, violent and serious.” In fact, the 1991 DOJ data shows that only half (49%) of state prisoners were in prison for a violent crime; 21.3% were incarcerated for drug offenses; among the drug offenders, only 16% had prior convictions for violent offenses; 38% of state prisoners were in prison for a nonviolent offense and had never been convicted previously of a violent crime.

    8 "Cruel and Usual”

    9 7Ibid.

    10 For murder, the percentage under the influence of alcohol was 44.6% compared to 26.8% under the influence of drugs; for assault the figures were 45.1% under the influence of alcohol compared to 24.2% under the influence of drugs.

    11 8The National Center on Addiction and Substance Abuse at Columbia University (CASA), "Behind Bars: Substance Abuse and America’s Prison Population,” (New York: CASA, January 1998), p.8.

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