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Odile Weissenborn

Odile Weissenborn

Posted March 26, 2009 | 12:50 PM (EST)

"The Jim Crow Laws of the 21st Century": Will New York Change?


Our new president came in on a platform of change, and just a few months after his inauguration, we're seeing some exceptional things. The pristine fountains on the White House lawn were dyed green this year for St. Patrick's day. Big-shot executives are now giving back their bonus pay! New government is shaking things up--and not just on a federal level.

In New York, the 36-year-old Rockefeller Drug Laws may be massively overhauled. With Democrats in charge of both arms of the NY State Legislature and in the governor's seat, reformers--joined by celebrities like Russell Simmons, P. Diddy, Susan Sarandon and Mariah Carey--have their big chance.

Passed under Governor Nelson Rockefeller in 1973, the Rockefeller Drug Laws put anyone caught with 2 ounces or more of drugs (4 ounces for narcotics) in prison for a minimum of 15 years. Five years ago the minimum sentence was brought down a notch, to 8 years (and the amount of drugs needed to convict on certain charges was raised).

Judges can't consider the circumstances when imposing a sentence--criminal background, for example, or role in a crime--since prison sentences are mandated without exception. And judges are prohibited from ordering treatment or rehab as an alternative to incarceration. As a consequence, prisons have been steadily filling up these past 36 years with low-level nonviolent offenders.

Proponents of reform argue these prison sentences are ineffective and an injustice. They say low-level drug criminals aren't cured in prison cells; they argue taxpayer money should be spent on drug treatment programs or mental health services. They say most low-level offenders come from disadvantaged communities, and they're overwhelmingly of color. A report released two weeks ago by the NYCLU charged, "The Rockefeller Drug Laws are the Jim Crow laws of the 21st Century."

Others say the Rockefeller Drug Laws keep criminals locked up; they're a great help to prosecutors and law enforcement. They say handing offenders off to treatment facilities will just absolve them of responsibility. They say druggies will repopulate the streets, and neighborhoods will become dangerous again.

The New York Senate has been debating the issue. Instead of voting on it, they decided this year to throw it in with the budget. Some say that was a neat way to avoid a vote that the slim majority might lose, but Democrats said through their spokesman that "it's as much of a budget issue as it is a sentencing issue." They reason that alternatives to incarceration--like drug treatment services--cost money.

Palladia, one of New York City's largest multi-service nonprofits, has forty years of substance abuse treatment services under its belt. It would welcome more funding, but with caution. I spoke with Debbie Pantin, Vice President of Outpatient and Centralized Services and Susan Ohanesian, Vice President of Residential Services. "We must be prepared for significantly increased demands on these systems," they said. How the funding is used--what programs are put in place and how they are implemented--is just as important as actually getting the money.

And they aren't foolishly ready to absorb every single low-level offender. "The professional treatment community in New York understands that not everyone who is arrested for a drug crime is a drug user," they told me, but "we know that treatment works and that treatment is a more rational and cost effective solution...than is mandatory incarceration."

So treatment works, okay. But why can't prisoners receive treatment in prison? Because data and studies prove that services offered in prison for addicts (or for those suffering from mental illness) are woefully inadequate. Last month, the abysmal level of care in its prison system prompted a federal court to order the state of California to simply release tens of thousands of inmates, up to one third of all its prisoners. The ruling reads, "There is no relief other than a prison release order that can remedy the constitutionally inadequate medical and mental health care."

And this brings us back to the Rockefeller Drug Laws which have been sending a stream of low-level drug offenders to prison. According to the Partnership for Responsible Drug Information, "The percentage of the prison population incarcerated for drug offenses has been increasing since 1973, the year the Rockefeller Drug Laws were enacted."

And the New York State Assembly's own website says the Rockefeller Drug Laws are the reason that "large numbers of drug offenders continue to be incarcerated in New York State prisons. As of January 1, 2008, 13,425 drug offenders were in state prison representing more than 21% of the male prison population and more than 33% of the female population." Nationally (remember California?), the prison population has nearly tripled.

But wait. The Big Apple is bucking the trend. "According to the U.S. Bureau of Justice Statistics, New York had the largest decrease in the rate of incarceration of any state in the nation from 2000 to 2007, even as the incarceration rate increased in 37 other states," Brian Fischer, Commissioner of the New York State Department of Correctional Services, said last month. So if New York's prison population is declining, where's the problem? Why are reformers who say prison is a waste of money still protesting?

Because they don't just want a smaller prison population, they want better alternative-to-incarceration programs. In fact, many people attribute the prisoner decline to the success of these programs, for example the drug treatment programs offered by Palladia.

Some are afraid that "alternative to incarceration" are fancy words for being soft on crime. Who better to ask than a former federal prosecutor?

At the Department of Justice, Paul Butler handled drug cases and prosecuted a U.S. Senator, FBI agents, and other law enforcement officials. Now a professor at George Washington University Law School, Paul Butler is not soft on crime. "I think incarceration should play a role. There are some people who deserve prison," he told me. "But there are literally hundreds of thousands of people now who don't deserve to be there."

The low-level nonviolent drug offenders targeted by Rockefeller Drug Laws, says Butler, don't belong in prison. "When you lock someone up with a violent offender for years, in fact it makes us less safe. If it helped us by making it safer then maybe it would be worth it, but it doesn't have that effect," he points out. "And you can certainly get drugs in prison, so it's not like it's preventing you from using drugs."

After 17 years in prison, Paul Wright is now editor of Prison Legal News, which he co-founded while incarcerated. "If you ask me of a single positive aspect about going to prison," he said to me, "I'm at a loss to name one. Prisons in this country, they're not just brutalizing and dehumanizing, but the negative effects far outstrip the positives: job loss, loss of housing. Putting people in prisons is a pretty drastic step." He went on to say that drug crimes are best prevented through treatment. When I asked about drug treatment in prison, he said, "We should try to keep people out of prisons in the first place."

Butler, perhaps surprisingly, agrees. Beyond saying incarceration is inappropriate for those nabbed by the Rockefeller Drug Laws, he explains how mass incarceration isn't an appropriate solution to crime. "Although it's counterintuitive," he admits, "If fewer people go to prison, public safety will benefit." He says there's a tipping point; prisons reduce crime to a point, but when too many are incarcerated, society suffers. Reducing incarceration will lead to a reduction in crime. This is exactly what we're witnessing in New York, and the trend will continue, says Butler, if reform continues.

In Butler's forthcoming book, Let's Get Free: A Hip-Hop Theory of Justice, he explains why incarceration is innately harmful (this view is actually an academic theory). Perhaps the most interesting concept is that "the policy of mass incarceration creates the reasonable expectation that many people are going to go to prison." Prison becomes a rite of passage, and "mass incarceration changes the way that people think about crime and punishment....If you expect to do some time, the deterrent effect of the criminal law disappears."

Butler isn't alone in his views, and even for a former DOJ prosecutor, his support for alternatives to incarceration isn't that radical. The former presidents of Colombia, Mexico and Brazil, fed up with the failure of the war on drugs, also recommend alternatives to incarceration. Their op-ed last month in the Wall Street Journal sounded like an ode to Rockefeller Drug Law reform: "We must start by changing the status of addicts from drug buyers in the illegal market to patients cared for by the public-health system."

New York's Governor Paterson agrees. In his first State of the State address, on January 7, he said, "I can't think of a criminal justice strategy that has been more unsuccessful than the Rockefeller Drug Laws." But he somehow has to satisfy his conservative constituents, like those at the Daily News who say reform of the Drug Laws would put "hardened criminals...in line for easy breaks."

Those who are afraid of being soft on crime may want to look elsewhere. The high cost of trials is what's making us soft on crime--not the Rockefeller Drug Laws. Richard Deiter, Executive Director of the Death Penalty Information Center, was interviewed by Solomon Moore of the New York Times, who wrote, "in June, the California Commission on the Fair Administration of Justice reported that the death penalty system cost $138 million a year." According to Deiter, "the economic meltdown and budget constraints were dissuading prosecutors from seeking capital trials, which usually cost millions of dollars and take decades to complete."

The expense of trials, and prison, is especially relevant in today's economic climate. Columnist and pundit Errol Louis has been reminding us that reform of the Rockefeller Drug Laws could save us money. "With the state facing a $2 billion deficit, it's fiscally foolish," he writes, "to slap nonviolent, first-time drug offenders with 15-year mandatory minimum sentences." He says we can use the money we'd save on alternative-to-incarceration programs. "Justice reinvestment," he calls this. "Spending prison money in ways that cut down on crime and those expensive cells." Drug treatment, for example, is a lot cheaper than paying "rent" on a cell.

In October of 2002, some folks were arrested outside then-governor Pataki's office. They were protesting the Rockefeller Drug Laws. Among them, given a summons for disorderly conduct, was Nelson Rockefeller's very own granddaughter. An incredible reversal--kind of like Madoff going to jail, and like all the other change we're seeing now. Some things, though, shouldn't change.

Guess who was with Nelson's granddaughter in 2002, arrested alongside her in an effort to change the Rockefeller Drug Laws? Governor Paterson. I hope he still has that fighting spirit; I hope he hasn't changed.