Dutchess County Drop the Rock Petition

Today (May 24th, 2006) I sent this letter below to my colleagues in our County Legislature...

If you agree, please sign this petition, pass it along to all you know, and jot off an email on it to countylegislature@co.dutchess.ny.us-- and call our Governor and state legislature directly toll-free at (877) 255-9417.

Joel Tyner
County Legislator
Clinton/Rhinebeck
[email protected]
876-2488

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Colleagues-- it's not just today's Journal editorial; 79\% of New Yorkers want judges to have sentencing discretion again re: drug offenders; let's weigh in on this...

Hi all...

I hope we might be able to pull together to send a message to Albany to pass and sign into law A.6796 with a letter or resolution based on the information below (based on current state law, one wonders how many folks might unnecessarily be in our county jail for nonviolent drug offenses instead of getting treatment).

Besides the strong editorial in today's Poughkeepsie Journal calling for the state to return sentencing discretion to judges when it comes to drug offenses,
[see below the May 24th editorial, and here: http://www.poughkeepsiejournal.com/apps/pbcs.dll/article?AID=/20060524/OPINION01/605240306 ]...

"An October 2002 New York Times poll reported that judicial discretion
involving drug cases was favored by 79\% of New Yorkers. Additionally,
64\% of individuals polled believed a legislator who votes for drug
law reform is NOT "soft on drugs" according to a Zogby International
poll."
[ http://www.realreformny.org/fact_judicial.html ]

"In a Zogby International poll, 74\% of those polled overwhelmingly supported treatment over incarceration for such people. Another survey
conducted by the Open Society Institute found that 63\% of Americans
saw drug abuse as a public health problem and not a criminal justice
problem."
[ http://www.drugpolicy.org/library/publicopinio/zogby_poll.cfm
http://stopthedrugwar.org/chronicle/243/norockefellerreform.shtml
http://www.realreformny.org/fact_treatment.html ]

All of the following groups across our state support judicial sentencing discretion (see http://www.DroptheRock.org ):

NAACP
New York State Church Women United
New York State Community of Churches
Interfaith Impact of New York State
Lutheran State Wide Advocacy
New York State Episcopal Public Policy Network
Citizen Action of New York
Center for Constitutional Rights
1199 National Health and Human Service Employees Union
New York Gray Panthers
New York Civil Liberties Union
New York Society for Ethical Culture
New York State Association of Criminal Defense Lawyers
Citizens United for the Rehabilitation of Errants
Center for Community Alternatives
Coalition for Parole Restoration
Coalition for the Homeless
The Correctional Association of New York
Families Against Mandatory Minimums
Prison Families of New York
Prison Moratorium Project
Prisoners' Legal Services of New York
Legal Action Center
Legal Aid Society
Statewide Youth Advocacy

NYS Comptroller Alan Hevesi, along with New York State Senators Velmanette Montgomery, Kruger, Schneiderman, Duane, Smith, and Hassell-Thompson support this effort as well; Assemblymember Jeffrion Aubry's bill to repeal the Rockefeller Drug laws has been endorsed by fellow Assemblymembers Gottfried, Powell, Perry, Gantt, Wright, Green, Clark, Pretlow, Greene, Arroyo, Cohen A, Cook, Diaz R, Espaillat, Farrell, Glick, Grannis, Heastie, Hooper, Hoyt, Jacobs, John, Lavelle, Lopez, McEneny, McLaughlin, Ortiz, Paulin, Perry, Scarborough, and Towns.

This from the Assembly bill memo for Assemblymember Aubrion's A.6796:
[see http://www.assembly.state.ny.us/leg/?bn=A06796 ]

"Provides new sentencing guidelines for offenses involving the possession and sale of controlled substances to eliminate the "Rockefeller drug laws" by removing non-violent felon classification from determinate sentences and allowing judicial discretion.

The purpose of this bill is to repeal the mandatory sentencing requirement under existing penal law in relation to drug offenses otherwise known as the Rockefeller Drug Laws.

This bill provides new sentencing guidelines for offenses involving
the possession and sale of controlled substances and allows judicial
discretion in sentencing offenders to alternative punishments.

This bill would repeal the mandatory sentencing requirements of the Rockefeller Drug Laws and the Second Felony Offender Law as it relates to drug offenses. It would also repeal subdivision 5 of Section 70.06 of the penal law relating to lifetime probation.

Under the existing Rockefeller Drug Laws, judges are now bound by rigid guidelines requiring stiff prison terms for drug offenses, even for possession of relatively small amounts of drugs. The sentences escalate steeply when a person is convicted of a second felony within 10 years. The Rockefeller Drug Laws have led to an explosion in the state's prison population, which has increased fivefold since the drug laws were enacted in 1973. As a result, New York taxpayers have borne the financial burden of building over 40,000 new prison beds at a cost of over $4 billion. Restoring judicial discretion in the sentencing process would allow judges to utilize less costly and more productive alternatives to incarceration."

Please let me know if you agree.

Joel
876-2488

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Today's Poughkeepsie Journal editorial:

"Drug Laws Need Reform"
http://www.poughkeepsiejournal.com/apps/pbcs.dll/article?AID=/20060524/OPINION01/605240306

Gov. George Pataki is running out of time to push for reforms he
knows are needed, and nowhere is this more evident than with New
York's drug laws.

Over the years, the governor has conceded the state went too far in
some instances when it instituted the so-called Rockefeller drug laws
more than 33 years ago. But few changes have been made over the
years. Tellingly, Pataki has used 28 of the 32 clemencies he has
granted as governor to free inmates serving long sentences under the
drug laws. In nearly every case, the inmates were serving up to life
sentences for possession or sale of a small amount of drugs, even
though they had no prior convictions nor a history of violence.

The legislative fixes to this problem have been incomplete, at best.

New York houses more than 60,000 prisoners, and the vast majority of
them belong behind bars. But thousands of inmates - first-time
offenders with no history of violence - could be better served in
drug treatment programs. Studies have shown this would save taxpayers considerably, not to mention increase the chances these inmates will free themselves of addiction and become productive members of society.

Broad approach needed

While lawmakers have talked about making substantial changes to the
drug laws, they have instead cherry-picked a few of the statutes,
making improvements that affect only a few hundred prisoners.

For example, lawmakers have reduced the mandatory prison terms for
people caught in the toughest of the drug laws. In those cases,
convicts were facing 15 to 25 years to life for some first-time
offenses - sentences that were beyond what some rapists and murderers sometimes face. Now those drug offenders can be sentenced to 8 to 20 years.

But real reform will occur only when judges are allowed to take in
account whether someone is a first-time or repeat offender. Judges
also should be able to consider a person's overall role in a drug
transaction.

The Rockefeller laws are so rigid, they focus primarily on the weight
of drugs and whether they are in someone's actual possession. But
big-time pushers often use front-line dealers who are addicts
themselves to carry and store drugs. Judges should be able to
consider such mitigating factors.

Over the years, the Assembly has shown its willingness to make broad
changes to the drug laws, but the Senate has refused. Pataki,
wrapping up his third and final term as governor, should nudge these
talks along. He shouldn't leave office without leading the state to
strike a better balance between tough punishment and fair treatment
programs.

------------------------------------

From http://www.RealReformNY.org ...

As of December 31, 1998, there were over 22,000 drug offenders locked up in New York state prisons, about 33\% of the entire prison
population. It cost the state over $2 billion to construct prisons to
house these people. The operating expense for confining them comes to over $715 million per year. Of the 19,453 commitments to the New York prison system in 1998, 9,063 (46.6\%) were for drug offenses. In 1980, 886 drug offenders were sent to State prison, 11\% of the total
commitments for that year.

The overall effect of the Rockefeller Drug Laws has been that law
enforcement agencies focus their efforts on those minor actors in the
trade who are the most easily arrested, prosecuted, and penalized,
rather than on the middle and high-level criminals who are drug
dealing's true masterminds and profiteers. Of all of the drug
offenders sent to New York state prisons in 1997, nearly 80\% were
never convicted of a violent felony and nearly half were never
arrested for a violent felony. Of drug offenders sent to New York
state prisons in 1997, nearly 32\% had no prior felony convictions and
over 17\% had never been arrested for a felony.

A 1997 study by RAND's Drug Policy Research Center concluded that
treatment is the most effective tool in the fight against drug abuse,
finding that treatment reduces 15 times more serious crime than
mandatory minimum sentences. Studies sponsored by the National
Institute on Drug Abuse have shown that drug treatment programs, on
the whole, are successful in reducing the levels of drug abuse and
crime among participants and in increasing their ability to hold a
job.

There are over 1,500,000 alcohol and substance abusers in New York
State. About 270,000, 15\% of the total are served in publicly or
privately run treatment programs. The cost of keeping an inmate in
NYS prison for a year is about $32,000. In comparison, the cost of
most drug free outpatient care runs about $2,700-$4,500 per person
per year; and the cost of residential drug treatment is
$17,000-$21,000 per participant per year. Well-run alternative
punishment gives selected offenders a critical opportunity to become
law-abiding members of society.

------------------------------------

From http://www.realreformny.org/fact_judicial.html ...

Mandatory minimum sentencing laws force judges to give out fixed
sentences without parole, no matter the circumstances surrounding an
individual's arrest. The main criterion for guilt under these laws is
not the offender's role in the drug transaction or whether they pose
a genuine threat to themselves or others, but simply the quantity of
drugs in possession at the time of arrest.

Under the Rockefeller drug laws, judges are forced to give out
unusually long sentences that waste scarce New York tax dollars
incarcerating mostly low-level nonviolent drug offenders. For
example, anyone selling two ounces or possessing four ounces of an
illegal narcotic receives a prison term of NO LESS than 15 years to
life. With over 15,500 drug offenders currently incarcerated, the
state spends nearly $500 million per year incarcerating these
offenders-nearly 80\% of whom have never been convicted of a violent
felony.

In order to save taxpayer money and produce fair and just sentences
for drug offenders, judges need two kinds of discretion returned to
them. First, judges should have the discretion to give sentences that
are appropriate to each individual case. Second, judges should be
able to divert offenders with substance abuse problems, when
appropriate, to treatment instead of jail or prison.

------------------------------------

From http://www.realreformny.org/fact_treatment.html ...

Community-based drug treatment programs and other alternatives to
incarceration should be expanded substantially. A 1997 study by the
RAND Corporation (a nonprofit research organization) found that
treatment is fifteen times more effective at reducing crime than
mandatory minimum sentencing. Offering treatment as an alternative to
incarceration under the Rockefeller drug laws would cut crime, save
taxpayer money, and help people, families, and communities.

Drug treatment presents an effective, efficient and humane
alternative to the current Rockefeller drug laws that would save New
York taxpayers millions of dollars a year and help cut crime. There
are over 5,500 drug offenders locked up in New York State prisons for
possession alone, costing New Yorkers an estimated cost of $180
million per year. Incarcerating one person costs the state
approximately $32,000 per year, but treatment works better and costs
far less, ranging from $2,700 to $21,000 per year (for residential
treatment).

Community-based drug treatment helps to keep families and communities intact. Approximately 65\% of individuals serving time under the Rockefeller Drug Laws are from New York City, while two-thirds of state prisons are over three hours by car from the city. Sufficiently expanded treatment options, especially outpatient treatment, would allow offenders to stay in their own communities with their families.

------------------------------------

From http://www.DroptheRock.org ...

The drug laws provide an incentive to police and prosecutors to
concentrate enforcement efforts on minor dealers and users who are
the most easily arrested, prosecuted, and penalized, rather than on
the drug trade's major profiteers.

* The main criterion for guilt under the drug laws is not the
offenders' role in narcotics transactions, but the amount of drugs in
their possession at the time of arrest.

* Drug kingpins know about this law and are rarely foolish enough to
be caught carrying narcotics. They hire other people to transport
drugs for them. These couriers are often caught with drugs in their
possession, charged with serious felonies and given long mandatory
prison sentences.

The drug laws fill prisons with non-violent, minor offenders and
drain resources from other programs and services, such as drug
treatment and education.

* There are over 15,000 drug offenders incarcerated in New York State prisons.

* In 2004, nearly 35\% of the people sent to state prison were drug
offenders, compared to only 11\% in 1980.

* Of all drug offenders sent to NYS prisons in 2000, nearly 80\% were
never convicted of a violent felony.

* Over 50\% of the drug offenders in NYS prisons were convicted of
selling or possessing only small drug amounts.

* It cost the state over $1.7 billion to construct new prisons to
house drug offenders. The annual operating expense for confining drug
offenders comes to about $500 million per year.

* From 1988 to 1998, the state increased annual prison spending by
$761 million. During that same time period, the state decreased
annual spending on the State and City Universities of New York by
approximately $615 million.

---------------------------------

More from http://www.DroptheRock.org ...

* The Rockefeller Drug Laws were enacted in 1973 under then
Governor Nelson Rockefeller. They require long prison terms-eight to
20 years-for the possession or sale of relatively small amounts of
drugs.

* The penalties apply without regard to the circumstances of
the offense or the individual's character or background. Whether the
person is a first-time or repeat offender, for instance, is
irrelevant.

The drug laws drive prison expansion, fill prisons with non-violent,
minor offenders, and drain resources from other services, such as
drug treatment and education.

There are currently over 15,000 drug offenders in NYS prisons.

It cost the state about $1.7 billion to build new prisons to house
drug offenders. The annual operating expense for confining them
comes to about $500 million per year.

* From 1988 to 1998, the state increased annual prison spending
by $761 million and decreased annual spending on the State and City
Universities of NY by approximately $615 million.

The drug laws skew law enforcement efforts.

* Guilt under the drug laws is determined by the amount of
drugs in the offenders' possession at the time of arrest, not by
their role in the drug transaction.

* This provision creates an incentive for law enforcement to
concentrate on poor communities of color where most drug transactions take place on the street and minor dealers and users are more easily arrested.

* Police generally ignore middle and upper-class areas where
the majority of people buy and use drugs behind closed doors.

The drug laws are a form of institutionalized racism.

* Studies show that the majority of people who use and sell
drugs are white, yet African-Americans and Latinos make up over 92\%
of the drug offenders in NYS prisons.

* Nearly 65\% of NY State prisoners are from NY City-almost all
from a handful of poor communities of color. 2/3 of NY's prisons are
located more than 3 hours by car from NYC, cutting many inmates off
from family and community ties.

* The US Census Bureau records inmates as residents of the area
where the prison that confines them is located, not as residents of
the community they come from, where their families still reside.

* NY has transferred thousands of people from its inner cities
to upstate areas and, along with them, the government funding and
electoral influence that are based on district population. Moreover,
inmates and parolees cannot vote.

In conjunction with NYS laws that deny felony offenders the right to
vote (felon disenfranchisement laws), the drug laws drain political
power and resources from poor communities of color.

Because poor NYC communities of color have disproportionately high
rates of drug arrests and convictions largely due to the drug laws
they are is proportionately stripped of voting power.

* Felon disenfranchisement laws were part of a series of Jim
Crow policies that were first adopted in the South during the late
19th Century. Others included literacy tests, poll taxes, and
grandfather clauses, all designed to keep African-Americans from
voting.

* Criminal disenfranchisement was the most indirect way to deny
the vote to African Americans, and is the only Jim Crow practice that
survives today.

Alternatives to incarceration are available that would help cut
crime, save money and rebuild lives, families, and communities.

* Studies show that treatment is more successful than prison in
fighting drug abuse, reducing recidivism rates, and preparing
participants for stable and productive lives in the community.

*The cost of keeping an inmate in NYS prison for a year is
about $32,000. In comparison, the cost of most outpatient drug
treatment care runs between $2,700-4,500 per person per year and the
cost of residential treatment is $17,000-$21,000 per person per year.

---------------------------------

From http://www.DroptheRock.org ...

Myth: The Rockefeller Drug Laws "have been effectively utilized by
law enforcement to protect our communities."

Fact: The Rockefeller Drug Laws have not succeeded in making our
communities safer. Today, up to one million New Yorkers use drugs
and an estimated 500,000 are addicts or abusers. Drugs are cheaper
and more readily available to the public than they were 20 years ago.
NY's highest court acknowledged that the "harsh mandatory treatment
of drug offendershas failed to deter drug trafficking or to control
the epidemic of drug abuse in society, and has resulted in the
incarceration of many offenders whose crimes arose out of their own
addiction and for whom the costs of imprisonment would have been
better spent on treatment and rehabilitation."

Myth: "The extraordinary statewide reductions in violent crime that
we have enjoyed in recent years have been achieved, in significant
part, by enforcing tough drug laws."

Fact: Violent crime was increasing until the mid 1990's, at the same
time that significantly more drug offenders were being imprisoned.
Then, violent crime began dropping dramatically in localities across
the nation, regardless of their policing tactics, the harshness of
their drug laws, or the extent to which the laws were enforced, all
of which vary from state to state and community to community. There
is evidence that drug treatment reduces crime associated with the
narcotics trade more effectively than incarceration: a 1997 study by
RAND's Drug Policy Research Center concluded that treatment,
significantly less costly than imprisonment, reduces 15 times more
serious crime than mandatory minimum sentences.

Myth: Most people imprisoned under our drug laws are violent offenders.

Fact: According to official statistics from the NYS Dept of
Correctional Services (DOCS), drug law offenders are overwhelmingly
non-violent. Nearly 80\% of drug offenders in prison have never been
convicted of a violent felony; about half have never even been
arrested for one.

Myth: The majority of imprisoned drug offenders are drug kingpins.

Fact: Of the over 9,000 drug offenders sent to state prison in 1998,
only about 50 were convicted under the most serious provision of the
drug laws. Nearly 53\% of the drug offenders in NYS prisons today
were convicted of selling or possessing only small drug
amounts-amounts that are classified under the 3 lowest felony
categories. The vast majority of offenders convicted of selling are
not kingpins or in high-level drug trafficking positions. Moreover,
many minor dealers are drug abusers who sell to support their own
habits. A Manhattan Institute report co-authored by criminologist
John J. DiIulio, Jr. concluded that, far from addressing the root
causes of why people sell drugs, "the main effect of imprisoning drug
sellersis merely to open the market for another seller."

Why is this the case? The main criterion for guilt under the laws is
not the offenders' role in narcotics transactions, but the amount of
drugs in their possession at the time of arrest. Drug kingpins
rarely carry narcotics; they hire other people to transport drugs for
them. These "foot soldiers" get caught literally holding the bag.
The drug laws' weight provision provides an incentive to police and
prosecutors to concentrate on minor dealers and users who are on the
street with drugs in their possession, rather than on the drug
trade's major profiteers.

Myth: "sweeping changes that would effectively dismantle [the drug]
laws would devastate our communities and cripple law enforcement
efforts to curb drug distribution."

Fact: There is no statistical basis for this claim. Even if the
drug laws were repealed, judges would have the authority to sentence
drug offenders to prison. Judges would make decisions after weighing
the views of the prosecution and the defense. Mandatory sentencing
schemes do not abolish discretion; they remove it from the judge's
hands and place it in the prosecutor's office. Whoever sets the
charge-usually the district attorney-determines the outcome of the
case. In America's adversarial criminal justice system, these laws
stack the deck in favor of the prosecution. The primary reason the
NYS Association of DAs aggressively opposes even the most modest
proposals to amend the drug laws is that such measures would diminish
their power. Requiring the consent of prosecutors to divert
offenders distorts the American criminal justice system.

Myth: Drug law reformers assert a "largely mythical claim that our
judges' hands are tied by laws which fill our prisons with minor drug
offenders."

Fact: A recent Legal Action Center report revealed that in 2000,
judges were unable to divert approximately 8,700 drug offenders to
treatment who would have been eligible for diversion under
Assemblymember Jeffrion Aubry's (D-Queens) repeal bill, and almost
5,000 drug offenders under the Assembly reform bill. (The Assembly
reform bill does not allow diversion for offenders who have any
history of violence.) There are almost 15,500 drug offenders
incarcerated in NYS prisons today; in 2004, over 35\% of all people
sent to state prison were drug offenders-the vast majority of whom
were minor drug offenders with no history of violence. It is
incontrovertible that the drug laws have handcuffed judges, filled
our prisons with minor drug offenders, and denied sufficient
alternatives to offenders who need help.

Myth: If judicial discretion is restored, there will be greater
sentencing disparities.

Fact: The possibility for sentencing disparities exists whether
judges or DAs have discretion. However, while judges make decisions
in public that are subject to review by higher courts, DAs make
decisions behind closed doors with no chance for public or legal
review. As Justice James Yates of the NY County Supreme Court
stated: "Under current law, that determination [of what sentence is
given to a particular defendant] is made by an assistant district
attorney who is not bound by written public guidelines or standards,
is not compelled to hear arguments in favor of reduction, is not
required to explain or justify the decision, is not held accountable
by the public or through judicial processes and the decision is not
reviewable by any court . . . . [In contrast], in a system where a
judge has authority to set sentences, there are proceedings on a
record in public, with advocacy on both sides and a decision by a
neutral party who must explain his or her decision and can be held
accountable."

Myth: Many more people of color are sent to prison for drug crimes
than whites because they buy, sell and use drugs in greater numbers.

Fact: Although government studies show that the majority of drug
users and sellers are white, 92\% of drug offenders in state prisons
are African-American and Latino. This stark racial discrepancy
occurs because law enforcement concentrates on poor communities of
color where most drug transactions take place on the street and minor
dealers and users are more easily arrested. Police generally ignore
middle and upper-class areas where the majority of people buy and use
drugs behind closed doors. As Chicago Police Department Narcotics
Division Chief stated in 1990, "There is as much cocaine in the Stock
Exchange as there is in the black community. But those guys are
harder to catch. Those deals are done in office buildings, in
somebody's home, and there is not the violence associated with it
that there is in the black community. But the guy standing on the
corner, he's almost got a sign on his back. These guys are just
arrestable."

Myth: The drug laws are beneficial to communities throughout New York State.

Fact: While the drug laws do benefit upstate, rural, mainly white
areas, they drain resources, funding and political power from poor
NYC communities of color. The need for economic development in
depressed upstate areas has been met by the construction and staffing
of prisons. Since 1982, NY has opened 38 prisons, all in rural areas
represented by Republican State Senators. 93\% of NYS inmates are
housed in prisons located in Republican Senate Districts. These
prisons receive more than $1.1 billion annually to cover operating
expenses and employ almost 30,000 people. Although the vast majority
of prisons are located in mainly white, upstate areas, over 65\% of
the state prison population comes from a handful of poor NYC
communities. The US Census Bureau records inmates as residents of
the town where they are incarcerated, not where they are originally
from, where their families still reside. NY has thus transferred
thousands of people of color from its inner cities to upstate areas
and, along with them, the government funding and electoral influence
that are based on district population.

Myth: We can win the "war on drugs" if we just give it more money.

Fact: Even though the so-called war on drugs has been "fought" for
decades and costs billions of dollars each year, illegal drugs are
easily available, substance abuse remains one of the country's most
difficult problems, and prison recidivism rates for drug offenders
hold steady. Ill-advised drug war policies like the Rockefeller Laws
have done more harm than good: they ruin lives, tear apart families,
divest political power and funding from poor communities of color,
distort the criminal justice system, and skew government priorities
toward prisons and away from education and alternatives to
incarceration. These alternatives are far less expensive and more
effective in reducing crime than prison. Former NYS Court of Appeals
Chief Judge Charles Breitel stated that the Rockefeller Drug Laws'
"pragmatic value might well be questioned, since more than half a
century of increasingly severe sanctions has failed to stem, if
indeed it has not caused, a parallel crescendo of drug abuse."

Myth: Children are protected by locking up drug users and sellers
for long periods of time.

Fact: Incarcerating parents for long prison terms does not reduce the
chance that their children will use or sell drugs. In fact,
disruption of families by incarceration greatly increases the
probability of children from such families getting into trouble with
the law. The best way to raise the next generation of drug abusers
is to put a generation of fathers and mothers in prison.

Conclusion

The Rockefeller Drug Laws have eliminated the historic and proper
role of judges, as neutral arbiters, to balance appropriate factors
in the process of achieving justice. They have also proven
ineffective, wasteful, and racially biased. In the interest of
justice, efficiency and public safety, policy makers should repeal
the drug laws and restore judicial discretion.

Governor Pataki's drug law reform proposal allows for judicial
discretion in drug cases only to a very limited degree; the Assembly
reform bill applies judicial discretion to a broader range of cases,
but includes far too many exceptions. The REPEAL BILL introduced by
Assemblymember Jeffrion Aubry (D-Queens), Chair of the Committee on
Corrections, is the only proposal that would restore sentencing
discretion to trial judges in all drug cases, enable full retroactive
review of sentences for prisoners currently incarcerated under the
laws, significantly expand alternatives to incarceration (including
education, drug treatment and job training programs), and reduce
sentence lengths for drug offenses. Passing the Aubry repeal bill is
a critical first step in reversing a costly and ineffective prison
expansion policy and the practices of racial injustice carried out by
our government.