Unfortunately, after a careful review of the Felony Drug Law Reform Act of 2001 (the FDLRA) introduced in the New York Senate at the request of Governor George Pataki, Human Rights Watch has concluded that the Governor's proposed legislation fails to provide the reforms that are needed.

The FDLRA retains many of the worst features of the Rockefeller laws: it keeps a structure of mandatory prison sentences; leaves low-level nonviolent offenders vulnerable to excessive sentences; and maintains the undue power of prosecutors over sentencing and diversion decisions. It creates new offenses subject to mandatory sentence provisions and arbitrarily increases sentences for certain predicate offenders.

1) Harsh Prison Sentences Retained for Possession or Sale of Small Quantities of Drugs
There has been almost universal condemnation of the draconian prison sentences mandated by the Rockefeller drug laws for offenders convicted of Class A felonies, involving small quantities of controlled substances. Under the FDLRA, prison sentences would continue to be triggered by one factor, the weight of the drug involved, and the Act does not change the relatively low weight thresholds under current law. The mandatory maximum remains a life sentence. Thus, under the FDLRA, as under the Rockefeller drug laws, a judge must impose a maximum life sentence on the first-time offender who transports a single four ounce package of cocaine to earn some extra money.

Related Material U.S.: Pataki Drug Reform No Improvement Press Release, July 16, 2001 Critique of the New York Assembly's Drug Law Reform Proposal, July 2001

The bill modestly lowers the mandatory minimum terms for Class A possession or sales offenses, from 15 years to twelve or ten, depending on the offender's prior record. The FDLRA also establishes a cumbersome procedure by which a Class A offender can seek a sentence reduction of two years from an appellate court "in the interests of justice" if certain conditions are met. Under the FDLRA, therefore, the most lenient sentence an offender trial judge can impose on a low level offender convicted of a Class A-I felony is a ten year to life sentence that might be reduced on appeal to eight and one third years if the offender has no prior convictions. The minimum sentence is ten years if the offender has a prior nonviolent conviction anytime in the previous decade. If the prior conviction was for a violent felony then the minimum sentence is twelve years, regardless of when the violent offense was committed.

The FDLRA does create an important exception to the mandatory Class A-I sentences: if the prosecutor consents, the court would be able to sentence an A-I drug offender with no prior violent felony convictions as a Class B offender. (For reasons that are not clear, offenders convicted of Class A-II would not be eligible for this sentence reduction.) We endorse the apparent objective of avoiding overly harsh sentences for low-level drug offenders convicted of Class A-I felonies. But those intentions should have been pursued through elimination of the mandatory minimums or through a marked lowering of the sentencing range for Class A offenses. If a low sentence is appropriate for a minor offender convicted of a Class A offense, judges should have the power to impose it. As currently drafted, the FDLRA simply maintains the distortion in prosecutorial powers that is one of the principal flaws of the Rockefeller drug laws.

2) Mandatory Prison Sentences Retained for Class B and Lower Felonies
The vast preponderance of drug offenders sent to prison under the Rockefeller drug laws, whether first-time or repeat offenders, are convicted of drug felonies in Classes B through E. Currently, about ninety percent of all drug offenders behind bars were convicted of these offenses. Individuals whose first offense is a Class B felony (e.g., possession with intent to sell or the sale of any amount of narcotic drug), as well as second felony offenders convicted of any Class B-E offense, face mandatory prison time.

The FDLRA retains mandatory sentences for these offenders. It would, however, replace the current indeterminate sentences with mandatory determinate sentences for both first time and repeat offenders. In most cases, the lowest possible sentence provided under the FDLRA would be slightly lower than the current minimum. The Act continues to deny judges their traditional role of determining just and proportionate sentences based on the facts of the case.

For example, under the FDLRA, the minimum determinate sentence for a first-time offender convicted of a Class B offense (e.g., selling any quantity of cocaine, however small) would be fourteen months in prison, two months longer than the current lowest minimum sentence. The lowest determinate sentence permitted for a Class B second felony offender would be four years, six months shorter than the current lowest minimum sentence under current laws. The Act would institute longer sentences for second offenders whose prior felony was a violent crime. A second felony class B offender with a prior violent felony would face a mandatory sentence of at least six and one-half years.

3) Judges Still Denied Full Authority over Diversion to Drug Treatment
To avoid harsh prison sentences for addicted offenders who would benefit from substance abuse treatment, prosecutor-created Drug Treatment Alternatives to Prison (DTAP) programs and drug courts have been set up in certain counties. In either situation, the prosecutor must agree to adjourn sentencing to permit a Class B or second felony offender, who would otherwise be
sentenced to prison, to enter substance abuse treatment programs instead. Upon successful completion of the program, the case is dismissed or the offender is given a significantly reduced sentence.

The FDLRA seeks to increase the diversion of addicted offenders to substance abuse programs, an objective we endorse. Unfortunately, the proposed legislation makes prosecutors, rather than judges, the final arbiters of most diversion decisions. Under the FDLRA, prosecutors have control over whether Class B offenders, or second felony offenders charged with sales offenses, can be diverted to treatment instead of prison. Judges are only given full diversion discretion in the cases of offenders convicted of Class C, D or E drug possession felonies. In those cases, judges can impose a sentence of probation on an offender instead of prison, and can require participation in a drug treatment program as a condition of probation. The Act also unduly restricts judicial powers to supervise an offender's treatment progress. Recovery from addiction can be a long and difficult process that often includes relapses. If the offender is found to have violated any of the probation sentence conditions, for example, by using drugs, the court must revoke the probation and send him or her to prison, unless the prosecutor consents to revised terms of probation.

4) Creation of Overbroad New Class A Felony with Severe Mandatory Sentences
The FDRLA creates a new Class A felony drug offense: conducting a controlled substance organization. This part of the Act has been presented as targeting drug kingpins, the leaders of major criminal drug enterprises. But the proposed bill language is drafted so broadly that it could be applied to far less culpable people. Indeed, it would apply to a person who helps organize three other people to make a single small drug sale.

Under the Act's provisions, a controlled substance organization can consist of as little as four people who decide to commit a one-time drug offense. There are no requirements that would narrow the targeted groups to those of a certain history or size (e.g., there are no criteria of prior criminal conduct or of a certain level of illegal profits nor even of a quantity of drug sales or purchases that would signify a substantial threat to public safety). A person is guilty of conducting the organization if he or she has a "supervisory position," defined as having responsibility for leading, organizing, directing or financing any aspect of its operation. Every member of a small group can be deemed to have a "supervisory position" if each has lead responsibility for a different aspect of the joint effort. No illegal act need be undertaken, as long as the organization has the goal of accomplishing the purchase or sale of drugs and at least one overt act (e.g., calling a meeting) is committed in furtherance of that agreement.

If the intent is to undertake drug-related conduct that would be a Class A felony (e.g., the sale of two ounces of cocaine), then the mandatory minimum sentence for "conducting" the organization is fifteen years. If the intent is to engage in conduct that would constitute a Class B felony (e.g., the sale of any amount of cocaine, no matter how small), the mandatory minimum sentence is five years. If the offender has a prior conviction, even for a minor drug felony, the minimum term is ten years. The mandatory maximum term is life.

In sum, the FDLRA threatens egregiously severe mandatory sentences for small time street dealers, who work with others to obtain and sell small amounts of drugs. If legislation is needed to ensure appropriate punishment for major drug traffickers, it should be crafted carefully so that it targets only those whose prior and current conduct unequivocally demonstrate a high level of responsibility for large-scale, dangerous drug organizations.

5) New Higher Mandatory Sentences for Offenses Committed Near Parks
Current law mandates increased sentences for drug offenses committed within 1000 feet of a school. The FDLRA extends increased sentences to crimes committed in or within 1000 feet of a public park. For such offenses, the shortest possible prison sentence is two years. The new sentence enhancement is unnecessary and would lead to lengthened prison sentences with no appreciable increase in public safety. Police will be encouraged to stage "buy and bust" operations within a thousand feet of a park so that the offender faces increased sanctions. In New York City, it is hard to imagine any drug transaction that would not be within either 1000 feet of a school or of a public park.

6) Retroactivity
The FDLRA would permit an extremely small group of incarcerated drug offenders, those sentenced for Class A-I offenses without prior convictions, to seek sentence reductions within a year of the Act's enactment. There is no justification for failing to grant all drug offenders currently serving disproportionately long sentences the opportunity to have their sentences reduced to the lower sentences permitted under the Act.