Changes Made to Drug Laws Don't Satisfy Advocates

By finally tackling New York State's three-decades-old drug sentencing laws - considered among the most severe in the nation - the State Legislature has raised a lot of hopes and plenty of questions among prisoners, their families, and their lawyers.

It has also raised fears among advocates for prison reform, who contend that the changes enacted to the Rockefeller drug laws on Tuesday are relatively modest, but may nevertheless reduce public pressure for a more comprehensive overhaul in the way New York treats drug offenders.

Indeed, to some advocates, the new bill is not even half a loaf, but more like a heel of bread, which will leave many prisoners and their families with dashed hopes.

"The important message to get out is that the laws are virtually as harsh as ever," said Robert Gangi, executive director of the Correctional Association of New York, a prison watchdog group. For example, he noted, judges must still sentence drug offenders to prison, rather than to alternatives like drug treatment.

But if New York still has some of the longest mandatory drug sentences in the country, "I think they should be," said Senator Dale M. Volker, a Republican from western New York who was in office in 1973 when Gov. Nelson A. Rockefeller pushed for laws to fight a growing heroin scourge.

Chauncey G. Parker, director of criminal justice services for the state, said that people arrested for felony level drug offenses have an average of three previous felony arrests and four prior misdemeanor arrests.

The new legislation, which Gov. George E. Pataki has pledged to sign, will reduce minimum sentences for drug offenses. For example, first-time offenders convicted of a Class A-1 drug felony, who under current law must receive a minimum sentence of 15 years to life in prison, would instead generally face terms of less than eight years.

In cases of drug possession, rather than sales, the new law also doubles the amount of heroin, cocaine and some narcotics that automatically turn cases into top-level felonies.

But the most heralded change will affect prisoners who were sentenced to especially long sentences, as much as 25 years behind bars, and will now be able to petition the courts to have their lengthy sentences reduced to the new, lower levels.

According to data from the New York State Department of Correctional Services, that change could affect 446 prisoners.

That is only a sliver of the 15,600 felons imprisoned on drug charges. So many families who were cheering the Legislature's efforts are now deeply disappointed, said Randy Credico, director of the Kunstler Fund for Racial Justice and an organizer of the group Mothers of the New York Disappeared. He is faced with calling many of the group's members, he said, and tell them their children "are not coming home."

One of those mothers is Cheri O'Donoghue, who said that her son, Ashley, 21, pleaded guilty to a lesser drug charge upstate to avoid a possible life term in prison under the old law; in March, he was sentenced to serve 7 to 21 years and is now in Clinton Correctional Facility near the Canadian border and far from his home in Manhattan.

He is not eligible for the new reduction program.

"If you are going to reform the laws after all this time, and they are so harsh to begin with, then why not really reform them and reform them in a way that makes sense for someone like Ashley's situation, which is a lot of people?" she asked. "He is young and he really wants to come home and he is in shock."

Many families do not know whether their child or spouse or parent qualifies for the sentencing reduction program. But they hope.

In the Bronx, Jane L. Gooden has been waiting more than seven years for her youngest son, Timothy Merritt, to be released from prison. She said he was living with friends upstate when drugs were found in the apartment where he was staying; according to court records, in 1997 he pleaded guilty to one count of criminal possession of a controlled substance in Columbia County.

It is hard for her to travel to Ulster County to visit him at the Eastern Correctional Facility, said Ms. Gooden, who is 61. "I've been sick since he's been gone," she said, adding that her husband died recently. "So I lost one - but I'm gaining one."

Public defenders, who are likely to handle the vast majority of the resentencing efforts, are still trying to figure out how the process will work. While some cases will be straightforward, in others "a lot of advocacy will be involved," said Alfred A. O'Conner, a lawyer with the New York State Defenders Association. The Legislature promised the prisoners lawyers, but did not authorize any money for the effort, he noted. Still, he added, "it's a chore that we welcome."

Ronald L. Kuby, the defense lawyer who has a daily radio program on WABC with Curtis Sliwa, said that his phones had already started ringing with inquiries from clients, ex-clients and family members. "They want to know how does this affect them, what can we do?" he said. "I assume my experience is being duplicated and replicated" in lawyers' offices across the state.

So far, he added, he does have one likely candidate, Roberto Oms, a Miami construction worker with no criminal record who came to New York with some friends who were drug dealers - and four kilos of heroin. Indicted in 1999, he went to trial, arguing that he was "just along for the ride," Mr. Kuby said. The judge disagreed and sentenced him to 15 years to life.

But the judge, Rosalind Richter, noted that she had adjourned the sentencing "a number of times to see if the Legislature had any willingness, along with the governor, to come to some thoughts about reducing the mandatory sentences under what is known as the Rockefeller drug laws." And if they did so, she was willing to hear from Mr. Oms's lawyers, she said, according to a transcript Mr. Kuby supplied.

Many judges have long pressed for a change in the Rockefeller drug laws, including Chief Judge Judith S. Kaye of the Court of Appeals, the state's highest court, who has been advocating for a rethinking of the laws since 1999. "We do feel it is a major step forward," said Jonathan Lippman, chief administrative judge of the courts. But, he added, "We hope they continue to look at the whole issue of the Rockefeller drug laws."

Some defense lawyers wish the new law had gone further, but prefer to focus on the hundreds of people who could be freed soon, or at least sooner. One is Lisa Schreibersdorf, executive director of Brooklyn Defender Services, who said she had one client in his 60's who has already spent 19 years in prison. "Instead of having his old age in jail," she said, "he's got a chance to come home."

Related Article:

New York State Votes to Reduce Drug Sentences  (12/8/04)
The New York Times, article