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Moving in the Right Direction: An Analysis of the New York Assembly's Drug Law Reform Act
(New York, July 2001) In the past two decades, New York courts have handed down over 150,000 prison sentences to drug offenders, most of whom are guilty of minor, low-level crimes. For many of these men and women, prison is a misguided and cruel sentence. For the state, the sentences have been expensive, ineffective and even counterproductive. The courts have had no choice but to send drug offenders to prison, however, because the Rockefeller drug and second felony offender laws impose mandatory sentences determined solely by the weight of the drug involved and the presence of a prior conviction. These laws have usurped the judge's traditional function of calibrating sentences to fit the crime.

"A complete overhaul of the state's sentencing laws is long overdue. Legislation is needed that would meet the public's interest not only in reducing drug-related crime but in avoiding unnecessary incarceration and unjust sentencing."

Jamie Fellner Associate Counsel

A complete overhaul of the state's sentencing laws is long overdue. Legislation is needed that would meet the public's interest not only in reducing drug-related crime but in avoiding unnecessary incarceration and unjust sentencing. Assembly Bill 8888, the Drug Law Reform, Drug Treatment and Crime Reduction Act of 2001 (the Drug law Reform Act) is a significant improvement over current sentencing laws. While it has certain key flaws, as discussed below, we recognize the Act would nonetheless help:

- Reduce the number of incarcerated low-level drug offenders;

- Create more proportionate prison sentences for all drug offenders;

- Increase funding for prison-based and community-based substance abuse treatment programs;

- Restore to a significant extent judicial sentencing discretion; and

- Increase the diversion of offenders from prison to substance abuse treatment programs.

Mandatory Minimum Prison Sentences
The Drug Law Reform Act retains a structure of mandatory indeterminate prison sentences with minimum and maximum terms keyed to the weight of the drug involved. New York's history under the Rockefeller drug laws has revealed the injustice that results when judges are denied the authority to set drug sentences based on all the facts of the case. We believe the best reform would be a complete repeal of mandatory sentences for drug offenders.

Given that the Act retains mandatory sentences, we commend the effort by its authors to reduce the possibility of disproportionately severe sentences through various provisions. For example, the Act reduces the length of mandatory sentences for almost all drug felonies; increases the weights required to trigger the most serious Class A offenses; permits more judicial diversion of offenders to treatment; permits offenders charged with Class A offenses to plead guilty to Class B offenses; and permits judges to avoid overly harsh sentences for Class B offenders by imposing determinate sentences including periods of prison and probation.

Class A Offenders
Among the Act's most dramatic departures from current law are provisions that would establish considerably lower minimum and maximum sentencing ranges for different drug felony classes. While we believe the proposed sentencing range is still too high, we recognize that offenders would receive much shorter prison sentences than are possible under the Rockefeller drug laws. For example, under the Act, a judge would be able to impose a minimum sentence of somewhere between five and eight and one-third years on an offender convicted of a first time Class A-I sales or possession offense - a marked reduction from the current minimum of fifteen years. (A fifteen-year minimum could be imposed, however, if the court finds after a hearing that such a term is justified.) The current mandatory maximum sentence of life imprisonment for a Class A sale or possession felony would be replaced with a maximum set between fifteen and twenty-five, unless after a hearing the court concludes a maximum sentence of life is warranted. The Act also doubles the drug quantities required for Class A-I and A-II felonies.

While we endorse the effort to create more proportionate sentences for persons convicted of Class A offenses, the Act does not go far enough. The lowest sentence a judge would be permitted to impose on a first-offender convicted of a Class A-I possession for carrying a package containing eight ounces of cocaine for another person is a five to fifteen year sentence. The Act recognizes the possibility that in particular cases such a sentence would be unduly severe, and would permit a person charged with a Class A possession or sales offense to waive his or her right to trial and to plead guilty to a Class B felony. The ability to plead guilty to a Class B charge, however, depends on prosecutorial consent. If the lower sentence is just and proportionate, it should be within the judge's power to impose. We do not understand why the Act requires prosecutorial consent as well as a waiver of a constitutional right.

Class B and Other Offenders
Most drug offenders who are sent to prison are either convicted of Class B offenses (e.g. the sale of any amount of cocaine, regardless of how small) or are second felony offenders convicted of offenses in Classes B-E. The Drug Law Reform Act commendably expands the sentencing options for a first-time Class B offense to include a split sentence of prison and probation. But the lowest sentence that could be imposed on a second felony offender convicted of a Class B felony is a sentence of two and one-half to five years in prison, unless the offender is eligible for diversion to a substance abuse treatment program. In many cases, such a prison sentence would be excessive, yet the Act does not permit a shorter sentence. Nor does it permit alternatives to incarceration for offenders who are not addicted and do not qualify for substance abuse treatment programs.

If mandatory prison terms are to be retained, the Act should be amended to further reduce the minimum sentences, giving judges a wider sentencing range from which to select the appropriate sentence.

Diversion to Substance Abuse Treatment
One of the most important features of the Drug Law Reform Act is the expansion of opportunities for judicial diversion of addicted drug offenders to substance abuse treatment programs instead of prison. The Act would permit judicial diversion to treatment of most persons charged with drug sales or possession offenses. It excludes from diversion elegibility those charged with Class-A offenses and those who have a prior violent felony at some point in their past. We believe the purposes of the Act would be better served if those two exclusions were removed and judges had the authority to divert any substance abusing drug offender to treatment whenever they believe such diversion would serve the interests of public safety and justice.

While we believe expanding diversion to substance abuse treatment is a notable improvement over the current reliance on imprisonment, such diversion does not end the potential for excessive prison sentences. If the court determines an offender has failed the substance abuse treatment program or otherwise violated the terms of the court's diversion order, the offender faces mandatory sentencing regardless of whether those sentences would be fair and proportionate to his or her particular conduct.

The Act currently mandates prison sentences for Class B and second felony offenders, unless they qualify for diversion to substance abuse treatment programs. We believe the Act should be amended to permit judges to sentence non-addicted offenders to community-based alternatives to incarceration. Consistent with the principle that prison should be reserved for the most dangerous offenders, low-level drug offenders, whether first or second felony offenders, should be held accountable and their rehabilitation encouraged through non-incarcerative sentences to the greatest extent possible.

We endorse the provisions of the Act that would permit many convicted offenders serving indeterminate prison sentences to apply for re-sentencing. This provision will have the salutary effect of making certain aspects of the Act retroactive as a practical matter. Enabling offenders currently serving disproportionately harsh sentences to obtain sentence reductions, this provision will make their punishment consistent with that given to offenders sentenced in the future.

Exclusion from Act's Sentencing Provisions
There is no justification for the blanket exclusion of persons with prior violent felonies from the option of substance abuse diversion, reduced sentences and re-sentencing provisions. The exclusion applies regardless of the nature and circumstances of the prior felony, its circumstances and the length of time between the current offense and the prior one. If, for example, a person commits a Class A-I felony by carrying a package containing the requisite weight of drugs and is a first offender, his or her lowest possible sentence would be five to fifteen years. But if that person had a felony assault conviction stemming from a bar-room brawl twenty years earlier, the minimum sentence would have to be fifteen years to life. The extraordinary increase in sentence for the current drug offense cannot reasonably be justified on the basis of that long ago previous crime.

The exclusion from the Act's sentencing reforms of people with prior violent felonies appears to have been included for purely political reasons. It makes no contribution to public safety or other legitimate criminal justice goals.