THE BLOG
04/26/2009 05:12 am ET Updated May 25, 2011

Rockefeller Drug Laws and Judicial/Prosecutorial Power Struggle

I was a young, mini-skirted lawyer back in 1973 when the Rockefeller
drug laws took over New York's criminal justice system. Now I've spent
25 years as a judge of this state and it is still haunted by draconian
mandatory sentences and over-incarcerating non-violent drug users
arrested for possession, instead of utilizing treatment alternatives.
The Rockefeller laws are still running the courts, ruining lives that
could be saved, handing out life sentences at $45,000 a year. And while
the political tough guy posturing for power has not even come close to
winning the "war on drugs," it has destroyed judicial independence by
taking away judges' sentencing discretion and handing it over to
prosecutors. While our democracy stands on the separation of powers,
and the scales of justice are meant to balance adversaries -- prosecutor
on one side, defense on the other, with a neutral judge in the middle --
that is not the reality and has not been for the last 35 years.

Under existing law, despite the public perception of powerful judges, it
is the state, through its prosecutors, and not its judges, that calls
the shots on judgment day. Without permission of district attorneys,
judges are denied the discretion to impose the sentence they determine
is the most appropriate and just. In those counties which now have Drug
Treatment Courts, the local prosecutor determines which category of
crime can be considered for alternatives and the judge never gets to see
the defendants who might have been great candidates for treatment and
re-entry into the community.

I have seen judges cry because they have been forced to impose mandatory
sentences, no matter how excessive and inappropriate they may be under
the harshest sentencing scheme in the western world -- three years to
life, let's say, for a mother with no prior criminal record. Or an AIDS
patient too weak for a life of crime, and too sick for a life in prison.
A battered woman may be trapped in a drug house, but the D.A. can
insist that prison is the only option for her, no matter what a judge
might think. Appellate courts have regularly sent cases back to trial
judges for going below mandatory minimums. But legislators have been
afraid to appear weak by taking control away from prosecutors and giving
it back to judges where it belongs. And, of course, district attorneys
lobby heavily to keep their awesome power over the courts and judiciary.
Meantime, if crime is big business, so is criminal justice in terms of
prison construction and prison jobs, particularly upstate, reducing
incentives for alternatives to prison.

New York's prisons now hold about 12,000 non-violent drug offenders who
might have had a better chance to become contributing members of society
if they had been sentenced to alternatives to incarceration or treatment
programs which are closely monitored, which are cost effect, and which
may break the pattern of drugs and crime, which prisons have never
accomplished and which cost about ten times more than treatment
programs. And it is well established that recidivism is greatly
decreased by treatment rather than prison. But reform has been elusive.
Until, perhaps, now.

Right now there is a chance for real reform, through a bill passed by
the Assembly and awaiting Senate adoption. The stakes are very high for
another generation, for judicial independence and for the adversary
system itself. The Assembly bill (which also increases penalties for
certain drug-related crimes) restores discretion to judges in most drug
cases, allows low-level, non-violent offenders access to a fairer
sentencing structure and to drug treatment programs in prison and out.
It also gives judges the power to seal prior records after an individual
is "redeemed" by leading a law abiding life, thereby increasing
employment possibilities. And it gives the judges a chance to do what they're supposed to do:
Justice.

Reform has been elusive, but Albany must do the right thing now, so
that judges of New York can do just that.