New York Governor Takes Steps to Reform Drug Sentencing Laws

Human Rights Watch commends Governor Pataki for placing reform of the state's drug sentencing laws on the legislative agenda for 1999. He has taken a step in the right direction by recognizing the need to lower the highest sentences imposed under the current laws and to increase the number of addicted defendants placed in drug treatment programs.

Much more is needed, however. The legislation the governor has proposed fails to address the core problem with New York's current laws--the over-incarceration of low-level offenders, resulting from mandatory minimums, an excessively harsh sentencing structure keyed solely to the weight of the drug involved, and the ability of prosecutors to wield far too much power over the sentencing of individual defendants.

The limitations in the governor's proposal reflect an unwillingness to acknowledge the extent to which low-level nonviolent drug offenders are incarcerated. The announcement of Pataki's proposed reforms was accompanied by publication of a report, "Narrow Pathways to Prison: The Selective Incarceration of Repeat Drug Offenders in New York State," by Katherine Lapp, the state's director of criminal justice. In this report, Ms. Lapp contends the state is "very selective" in its use of prison for drug offenders and that those who are sentenced to prison deserve to be there. Lapp's conclusions are surprising, given that her data shows that 3,226 drug offenders were incarcerated in 1998 even though they were either first offenders or had previously been convicted only of nonviolent drug offenses.

Human Rights Watch believes the discussion of drug policy reform is best served by an understanding of the relevant facts. Unfortunately, "Narrow Pathways" offers a limited amount of data, much of it presented in a misleading fashion. We therefore offer some fact-based responses to Lapp's claims and provide some additional relevant information on drug offenders crucial to an informed drug sentencing debate.

Claim: Few first-time felony drug arrestees receive prison sentences.

Reality: 1,526 men and women with no prior felony arrests or convictions were incarcerated for drug offenses in 1998.

One in seven (14%) of convicted first time drug arrestees were incarcerated. Lapp contends their incarceration rate was only 9.8% through a statistical sleight-of-hand: she compared the number of those sent to prison against the number initially arrested. The relevant measure, however, is how many first offenders convicted of a nonviolent drug offense are sent to prison.

Claim: Many first offenders were incarcerated because they committed serious drug offenses, as shown by their arrest charges for Class A and B felonies.

Reality: Most incarcerated first offenders were convicted of low-level drug offenses. At the end of 1998, there were 6,382 men and women in prison for drug offenses sentenced as first offenders. Of these, 624 were convicted of Class A-1 felonies, 1,899 of Class A-2, 2,153 of Class B, and 1,706 of Classes C-E.

Arrest charges do not reflect the seriousness of a defendant's conduct. In drug cases police routinely make arrests on the highest possible charges. This permits the prosecutors to bargain for information and guilty pleas in exchange for lower charges and lower sentences. For example, drug offenders suspected of being involved in street-level drug sales of small drug amounts are routinely arrested on Class B charges and then are convicted of Class C or D level crimes.

Class A or B offenses are not limited to dangerous criminal conduct. Anyone who participates, however tangentially and in however minor a capacity, in the sale of two ounces of drugs or who possesses as little as four ounces, can be convicted of a Class A offense. Possession of half an ounce of drugs or the sale of any amount, however minute, constitutes a Class B offense.

Claim: Few drug arrestees whose prior criminal histories are limited to drug felonies ("drug-only" offenders) receive prison sentences.

Reality: 1,700 "drug-only" offenders went to prison for nonviolent drug crimes in 1998.

Two out of five, or 40%, of the drug-only offenders are incarcerated. Lapp states their incarceration rate is 30% because she compares the number of those sent to prison against those arrested. As noted above, however, the relevant measure is the number of convicted drug-only offenders sent to prison. But even Lapp's figure of 30%, or one in three, is remarkably high for a population that is nonviolent and consists primarily of low-level offenders.

Claim: The second-felony offender law is not primarily responsible for the incarceration of repeat drug offenders.

Reality: The basis for this claim is inexplicable. The second-felony offender law explicitly requires the incarceration of felony offenders with prior felony convictions. Lapp herself states that 72% of the 1996 arrestees with prior drug crimes had previously served prior probation or prison terms, i.e., had prior convictions for felonies.

Claim: The seriousness of the drug offense for which defendants were arrested helps explain the incarceration of "drug-only" repeat offenders.

Reality: Most incarcerated "drug-only" repeat offenders were convicted of the lowest level drug crimes.

According to the Department of Correctional Services, 15,922 people in New York prisons at the end of 1998 had been sentenced as second felony drug offenders. Only 1% were convicted of class A crimes.

Repeat Drug Offenders in Prison

Felony Class Number Percentage

A-II 236 1%

B 4,312 27%

C-E 11,456 72%

The Path to Prison

Data from the Department of Correctional Services and the Division of Criminal Justice Services shows that the road to prison for drug offenders is a broad highway and not--as Lapp erroneously contends --a "narrow pathway."

Fact: Thousands of low-level drug offenders are incarcerated each year.

As of December 31, 1998, there were 22,386 men and women in New York prisons convicted of nonviolent drug offenses. One in four was convicted of possessing drugs.

Fifty-nine percent of the incarcerated drug offenders, 13,612 people, were convicted of sales or possession offenses in the three lowest felony classes--Class C, D or E. These felonies involve minute drug amounts.

Fact: Thousands of drug offenders who have not engaged in violent, serious or dangerous criminal conduct are sent to prison each year.

-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 conviction for any crime.

- Half (50.9%) have no prior felony drug convictions.

- Half were people whose only prior criminal conduct--whether detected or undetected by law enforcement agencies--consisted of low-level nonviolent drug-related offenses.(1)

- Only 9.7% have prior convictions for both drug and violent felonies.

The Lapp report chronicles the criminal history of forty representative cases of men and women arrested in 1996 for drug offenses. Many had multiple arrests and convictions on misdemeanor as well as felony drug charges, as well as histories of failing to comply with the terms of pretrial release and/or probation. Their stories illustrate a well known fact about the current criminal justice system: it functions as a turnstile operation through which thousands of minor drug offenders spin without receiving adequate supervision or any drug treatment. Sooner or later, many end up as second felony offenders sent to prison at great cost to themselves, their families, their communities and the state.

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1. John J. DiIulio Jr., "Against Mandatory Minimums," National Review, No. 9, Vol. 51, p. 48.

2. Additional information and full citations can be found at the Human Rights Watch website at http://www.hrw.org. For an extensive analysis of the nature and impact of New York's drug laws, see the 1997 Human Rights Watch report, "Cruel and Usual: Disproportionate Sentences for New York Drug Offenders."