Legal Aid's Chief Attorney Calls the Rockefeller Drug Law Reform a Huge Breakthrough, Choosing Treatment Over Punishment and Restoring Judicial Discretion
MONDAY, MARCH 30, 2009

Calling the reform of the Rockefeller Drug Laws "a huge breakthrough for the State to choose treatment over counter-productive punishment," Steven Banks, Attorney-in-Chief of The Legal Aid Society, told the New York Law Journal that "judicial discretion is one of the bedrocks of our judicial system, and it is an important step forward that judicial discretion is being restored in this area after so many years in which judges were not allowed to be judges."

On Friday, Chief Judge Jonathan Lippman, Governor David Paterson, Assembly Speaker Sheldon Silver, and Senate Majority Leaders Malcolm Smith joined other legislative leaders to announce that they had agreed to divert the cases of thousands of nonviolent drug offenders in New York to an expanded treatment initiative that would rely on the discretion of state judges.

The New York Law Journal
OCA Prepares for Impact of Drug Law Reforms
Joel Stashenko
March 30, 2009

ALBANY - A court program of 15 years standing has provided the model for a new approach to drug offenses announced Friday that stresses treatment rather than incarceration, Chief Judge Jonathan Lippman said Friday.

The chief judge was on hand as Governor David Paterson and legislative leaders said they had agreed to begin diverting the cases of thousands of lower-level, nonviolent drug offenders in New York to an expanded treatment initiative that would rely on the discretion of state judges and use up to $80 million in federal stimulus money.

The reform would eliminate the last vestiges of the draconian Rockefeller Drug Laws enacted in 1973 to combat what officials regarded as an epidemic of heroin use. The program pushed by former Governor Nelson Rockefeller, with widespread political support from legislators, reflected dissatisfaction with judges' sentencing practices by establishing mandatory minimum sentences and maximums of up to life in prison for offenders caught with relatively small amounts of drugs.

A centerpiece of the agreement announced Friday is to give judges the discretion to send first- and, in some cases, second-time non-violent offenders into treatment over the objections of prosecutors.

Offenders who commit other crimes, such as burglary, linked to their drug use, also would be eligible for diversion into treatment programs, under the agreement.

At the same time, supporters pledged that sentences would be toughened for drug kingpins and dealers.

Chief Judge Lippman said in an interview that the new program would build on the success of drug treatment courts established in response to the crack cocaine epidemic of the 1980s and 1990s which have steered thousands of offenders into treatment programs and away from lengthy prison terms.

"The drug court approach is when the judge is the authority figure who takes a tough-love regimen," Chief Judge Lippman said in an interview. "The judge uses his discretion to oversee and monitor the drug treatment with a system of rewards and punishments," he said. The judge may require daily or weekly blood tests, or allow someone to return to court in several weeks. "The ultimate punishment [for failure] is you are going to go back to jail," he said.

Chief Judge Lippman said that current drug courts have handled about 50,500 cases since they were first established in 1995, and about 20,400 people have completed their treatment regimens. Federal studies have show that nearly 90 percent of those who complete drug treatment programs, which can last as along as 18 months, do not lapse into drug abuse and criminality again, he added.

However, Chief Judge Lippman wrote in an Albany Times-Union column last week that the state's 175 drug courts now admit only 2,600 new felony offenders a year, a small fraction of the 43,000 new felony drug arrests the system processes.

Senate Majority Leader Malcolm Smith estimated at the press conference that as many as 13,000 additional drug offenders a year could qualify for diversion under the agreement.

Chief Judge Lippman said a major drawback of the current drug courts is that while the courts are sensitive to the need to get eligible offenders treatment, prosecutors have been able to veto diversion for some offenders. That would change for the lower-level offenders under the agreement announced Friday, Chief Judge Lippman noted.

"This isn't about judges vs. prosecutors, in my opinion, and who should have the final say," Chief Judge Lippman said. "It's about the positives in terms of judges having the final say. We want input from prosecutors. The judge isn't going to do what they are going to do without substantial input from prosecutors."

Included in the Budget

The agreement will be included in the 2009-10 state budget bills to be put before state legislators next week. With the majority in the Senate in pro-drug reform Democratic hands for the first time in decades, the chances of final passage of the drug law reforms are considered high. The Assembly approved a similar bill earlier this year.

Including the drug law reforms in budget legislation is a time-honored Albany method of pushing potentially unpopular legislation, like drug law reforms, through the Senate and Assembly by daring lawmakers to vote against politically popular spending in massive budget bills.

Mr. Paterson, who was arrested in a display of civil disobedience at a 2002 anti-drug law demonstration in New York City, said at the press conference that it is time to "shift our services from punishment to treatment."

He said that the emphasis on incarceration had been "ineffective" and that, "We need a different approach."

Critics of the Rockefeller Drug Laws argue that changes instituted in 2004, which included scaling back the penalty for the most severe charge for narcotics possession from 15 years to life to 8 to 20 years and authorizing the resentencing of some inmates incarcerated under the old statute, did not go far enough.

"This agreement begins to fundamentally shift the foundation of New York's drug policy," said Assembly Speaker Sheldon Silver, D-Manhattan. "No longer will drug use and addiction be considered solely a criminal matter in this state, but a public health matter as well."

Senator Eric Schneiderman, D-Manhattan, said the diversion of more offenders to treatment will necessitate the creation of more slots in out-patient and in-patient substance abuse treatment facilities. He said the state will commit between $60 million and $80 million in federal stimulus funding toward the creation of more treatment opportunities.

Mr. Paterson said he can justify spending federal stimulus funds because the state will be creating economically productive individuals through rehabilitation efforts who would otherwise have to be supported by taxpayers if they were sent to state prison.

Mr. Smith, D-Queens, said it costs about $45,000 a year to incarcerate an inmate in state prison but only about $15,000 a year to provide addicts with substance abuse treatment at a residential facility. He estimated eventual cost savings to the state at about $250 million a year.

District Attorneys Skeptical

The president of the District Attorneys Association, Staten Island District Attorney Daniel M. Donovan, said in an interview Friday he is skeptical of the cost-savings being projected from the drug law changes and he questioned their potential downside.

Mr. Donovan said district attorneys believe the 2004 changes to the state drug laws have worked and that prosecutors have good reasons - some of which he said they cannot disclose in open court - for blocking some offenders from being diverted into drug treatment.

"Many times, we have more information than a judge is going to have before them in the 10 minutes they get" with a defendant, Mr. Donovan said. "What you are doing is you're cutting out an essential part of the process, the district attorneys. And we are the ones that are elected to protect the public safety. And now we have been cut out of the process that helps insure that public safety."

Republicans in the Legislature have opposed the drug law changes as a threat to public safety.

For example, Senator Dale Volker, R-Depew, has said that few drug offenders charged with felonies do not have violence in their records.

Mr. Volker, former Senate Codes Committee chairman, was not available for comment yesterday, but has argued that the harsh drug laws were originally adopted by the Legislature in the 1970s because legislators were dismayed that some New York City judges were failing to render tough sentences on defendants in heroin cases in an era when judges still had wider sentencing discretion.

But Chief Judge Lippman said Friday that the landscape of drug offenses and drug treatment is vastly different now and that courts understand far better what should be done with offenders for their own sake and for the safety of society.

"Are judges perfect? No," Chief Judge Lippman said. "Are mistakes ever made? Of course. But we think that judges are in the best position to make the best determinations . . . That is what our job is. That is what our constitutional obligation is."

The new law would affect judges in all criminal courts that handle drug cases, not just the ones in special drug treatment parts. Chief Judge Lippman said he was unsure whether additional resources would be required, but he said that training would be provided.

Ultimately, he said, the emphasis may make the drug courts obsolete as their lessons are adopted by the entire court system.

Paul Samuels, president and director of Legal Action Center, which was has opposed the Rockefeller Drug Laws since their enactment, called the proposed legislation a "dramatic breakthrough."

He said that in situations where the Rockefeller Drug Laws do not mandate prison time, judges are already "doing a very good job" of deciding which defendants should "appropriately be sent to treatment to deal with their addiction."

Steven Banks, Attorney-in-Chief of The Legal Aid Society, said, "Judicial discretion is one of the bedrocks of our judicial system, and it is an important step forward that judicial discretion is being restored in this area."