MANDATED MINIMUM

Mandatory sentencing laws deny judges their traditional powers of discernment and discretion. Judges cannot reduce the term for offenses that carry prescribed minimum sentences, and they are restricted from imposing alternative sentences no matter what mitigating circumstances may be involved.

Sentencing discretion has, to a great extent, thus been taken away from judges and given to police and prosecutors. When a person is arrested, a police officer or prisecutor decides what the charge will be. Once he or she decides that charge, the minimum sentence is automatically determined if the person is found guilty.

REFORM OF NEW YORK'S DRUG LAWS

George Pataki, Governor of New York, has proposed (on January 17, 2001) significant canges to New Yorks mandatory drug laws. While these proposals have been welcomed, they fall short of what is needed.

EXCERPTS FROM RESPONSES TO THE GOVERNOR'S PROPOSALS
ARE CITED BELOW:

THE NEW YORK STATE BAR ASSOCIATION SAYS:

There should be no mandatory minimum sentences except for A1 drug felonies.
Restore judicial discretion for A1 felonies giving trial judges the authority to impose a minimum sentence as low as 14 months in appropriate cases. The Governor’s proposal involves prosecutorial consent. Judges are in the best position to make objective, neutral decisions as to what constitutes the most appropriate sentence. They should be given full authority to make those decisions.
Only allowing A1 offenders to apply to have their sentences reconsidered is unfair. The application should be made to the trial court as it is in the best position to assess whether or not a sentence reduction is appropriate, and also to reduce the burden on the appellate division.
Sentencing judges should have the authority to divert repeat non violent class B, C, D and E drug felons, whether charged with possession or sale, to court supervised or prosecutor-sponsored residential or non-residential treatment programs.
Requiring offenders who fail in treatment to serve a prison term without any credit for the time that they attempted to conquer their addiction is too punitive and will discourage some inmates from participating in a drug treatment diversion program.
For those drug offenders who are not addicts, treatment may be required that consists of education, job training, parenting skills, life skills or mental health treatment. The court, in consultation with treatment providers should tailor treatment programs, residential or non-residential, to meet the needs of offenders.
Significant funds must be added to the budget to expand existing and create new drug treatment programs so that they can accommodate the thousands of offenders expected to be diverted to treatment.
New York would be better served by utilizing the definition of "drug kingpin" applied in federal prosecutions.

THE NEW YORK CITY ASSOCIATION OF THE BAR SAYS:

Restore sentencing discretion to trial judges, and abandon conditions of prosecutorial consent.
Make available to Class B non-violent predicate felons the diversionary residential programs that your proposal makes available to Class C, D, and E non-violent predicate felons.
Improve drug treatment programs available in prisons.

THE LEGAL AID SOCIETY SAYS:

Restore prosecutors to their traditional roles as adversaries, and restore control over sentence and treatment decisions to independent judges.
The Governor's proposal fails to deal with the most serious problem in the present law, which is the complete absence of judicial discretion to divert any persons charged with Class B offenses - first offenders as well as repeat offenders - to drug treatment in lieu of prison.
(In the Governor's proposal) sentence enhancements would be mandated for offenders who have previously been convicted of a violent felony offense without regard to whether the prior violent offense was remote in time, or the product of an untreated addiction. We think the better approach would be to focus on the circumstances of the current conviction, and to punish that crime appropriately; treatment options should not be foreclosed where the real issue is drug dependency.
Fundamental fairness requires that drug law reform should be fully retroactive, with sentence reductions available to all those under sentence for the crimes that have been targeted for reform.
Resources for expanded drug treatment must be allocated at the same time that sentencing laws are revised.

THE CAMPAIGN FOR EFFECTIVE CRIMINAL JUSTICE SAYS:

Trial judges should have discretion to sentence non violent addicted offenders to mandatory, court- supervised, community-base treatment, regardless of the nature of the charge.
The definition of "drug kingpin" should target the heads of drug trafficking organizations, not low level street sellers.
Except for "drug kingpins" sentences for felony drug sale and possession should be substantially reduced so as to be proportionate with sentences for other non-violent crimes.
Alcoholism and substance abuse treatment and alternatives to Incarceration (ATI) programs should be expanded substantially to accommodate increased diversion from incarceration of appropriate offenders.

OTHER EVIDENCE

Public Safety. Crime will be reduced.

The Reform Campaign will allow judges to divert drug offenders out of the criminal justice system and into alcohol and/or drug treatment, and into supportive services, including vocational training, family counseling, literacy training and job placement, as needed. Consider the following:

Drug dealing declined by 78%, shoplifting declined by 82%, and arrests for any crime were reduced by 64% among those who completed a treatment program.
National Treatment Improvement Evaluation Study ’96
Treatment reduces criminal activity by 66 percent.
General Report, CALDATA, '94
Client arrests and convictions during treatment decreased 68% in alcoholism outpatient clinic programs and 96% in residential drug free programs, vs. offenses prior to treatment.
NYS OASAS Evaluation Systems, September, 1999
The NYS Commission on Drugs and the Courts, in June 2000, stated: "We estimate that, last year, there were as many as 10,000 non-violent addicted criminal defendants who could have been eligible for treatment, but who were instead sentenced to jail or prison."

Costs. Taxpayers will benefit.

The Reform Campaign will reduce the cost of law enforcement by focusing on treatment and prevention, rather than incarceration. Consider the following:

The annual operating budget for NYS prisons has increased from about $450 million in fiscal year 1982-83 to over $2.0 billion today. A major part of that increase is for incarceration of drug offenders.
NYS Div. Of Budget, 00
It costs NYS taxpayers about $2 billion to construct prisons to house drug offenders, and $710 million each year to confine them.
Correctional Association of NY, ’00
The average cost to the taxpayers of New York is about $32,000 per inmate per year. Drug treatments in community based services cost a fraction of that.
Correctional Association of NY, ’00
Since 1988, there has been nearly a dollar for dollar tradeoff, with the NYS DOCS receiving a $761 million increase while budgets for NY State and City university systems declined by $615 million.
Justice Policy Institute, ‘98
Treatment saves in many other ways; - e.g.: reduced detoxification costs and court costs for treatment clients discharged over a 2 year period resulted in NYS savings of $143 million.
NYS OASAS Evaluation Systems Report, Sept. 1999
New York can reduce the number of state prison beds needed for drug offenders by thousands within a few years of enacting this campaign. The result in net savings to the state would be millions of dollars annually, even though additional treatment funds would be needed.

Racial Impacts. Oppression will be reduced.

Heavy-handed drug enforcement policies have hit African American and Latino communities the hardest. Drug use levels (% of population) are relatively consistent across racial lines. However, African Americans and Latinos are much more likely to be convicted on drug-related charges, in part because they have considerably less access to treatment facilities. Consider the following:

There are five times more white drug users than black. Yet, relative to population black men are admitted to state prison on drug charges at a rate that is 13.4 times greater than white men.
"Punishment and Prejudice: Racial Disparities in the War On Drugs," Human Rights Watch.
Research done by the U.S. Department of Health and Human Services has shown that of the drug sellers, approximately 82% were whites, and 16% were blacks. And, of the illicit drug users, approximately 9.9 million were whites and 2.0 million were blacks.
African Americans and Latinos comprise over 94% of the drug offenders in NYS prisons.
NYS Dept. of Correctional Services

Women, Children, and Families

Families of the incarcerated are the forgotten victims of crime and the criminal justice system. Emotionally, the children are hit very hard when a family member is sent to prison. They are confused with a sense of loss, and are often shuttled to non-enthusiastic relatives or to foster care. Consider the following:

Parents held in U.S. prisons had an estimated 1,498,800 minor children in 1999.
U.S. Bu. Justice Statistics, "Incarcerated Parents and Their Children," August, 2000
Two-thirds of the women in state prisons are mothers of dependent children.
U.S. Bu. Justice Statistics, "Women Offenders," 1999
More than half of the women in state prisons never see their children during their incarceration.
U.S. Bu. Justice Statistics, 1997 National Survey
Children of offenders are six times more likely than their peers to end up in prison.
Eric Brenner, Fathers in Prison: A Review of the Data, National Center on Fathers and Families, 1998
The dramatic increase in the women’s prison population is driven largely by mandatory minimum sentences for drug law violations.
Excessive incarcerations, with their collateral effect of removing fathers and mothers from the home, now are seen more clearly as contributors to the destruction of many young persons in coming generations. Incarceration contributes to the growth of fatherless homes and the dire consequences to children. To illustrate:
· Sixty-three percent of youth suicides are from fatherless homes.
· Ninety percent of all homeless and runaway youths are from fatherless homes.
· Seventy five percent of adolescent patients in substance abuse centers are from fatherless homes.
"Economic Shifts That Will Impact Crime Control and Community Revitalization," NIJ Research Forum, 1998

Democratic Principles. Compromised.

Denied judicial discretion. Current drug laws are a distortion and erosion of the traditional judicial processes in America. Prison sentences for drug offenses have been made mandatory. Judges have little or no discretion in handing down these sentences. Circumstance of the crime and the relative role of the offender in the crime or in the criminal hierarchy cannot be considered by our judges.
Shift in judicial power. Over the past 15 to 20 years there has been an extraordinary shift in power in the criminal justice system from judges to prosecutors. Prosecutors negotiate with defendants and decide on the charges, and the judges are required to automatically impose corresponding mandatory sentences without consideration.
Coercion to convict. More than ever before, prosecutors are able to use the threat of these very long prison terms to induce criminals, liars, drug addicts and others into providing testimony against alleged criminals. Some cooperate in return for leniency in their own cases. Sometimes they cooperate truthfully and help send criminals to prison. And sometimes they lie, telling prosecutors anything they want to hear.
"The only way to avoid those mandatories is to provide substantial assistance to a prosecutor, and if it means telling a wild story to avoid spending almost life in prison without parole, there are many people who will do that."
Eric Sterling, former Counsel to the U.S. Committee on the Judiciary, who helped draft mandatory minimum sentencing laws.
Racially tainted drug war. Disproportionate sentences that focus on minorities contradict faith in the principles of justice and equal protection of the laws that should be the bedrock of any constitutional democracy. They undermine faith among all races in the fairness and efficacy of the criminal justice system.
Disenfranchisement. The current excessive drug laws have likewise eroded our nation’s system of fair representation. An estimated 3.9 million Americans have currently or permanently lost the ability to vote because of felony convictions. 1.4 million African American men, or 13 percent of the black male population, are disenfranchised, a rate that is seven times the national average. This excessively distorts our electoral processes.
"Losing the Vote," The Sentencing Project and Human Rights Watch, Oct. ’98

Editor’s Note: Other nations allow prisoners to vote. The Constitution of the United States Amendment XV, Section 1 states: - "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Prison is a type of temporary servitude, and when a citizen leaves prison, he should be given back his right to vote.

Alternatives to Incarceration will do a better job.

. A range of alternatives should be available to judges in order for them to fairly fit the sentence to the nature of the crime and the circumstances of the defendant.

NYS judges said:
"It is apparent that each year thousands of persons who present no, or a minimal, threat to public safety are being committed to State prison. And this is being done despite the exorbitant costs involved and despite the fact that community-based programs may well be as effective, or appreciably more effective, in rehabilitating these offenders."
"Obviously, alternative programs, particularly those that offer long-term residential drug treatment, are not only a cheaper form of supervision but also may do a better job than incarceration in rehabilitating certain offenders."
"The overwhelming percentage of trial judges consider limited program availability to be an obstacle in sentencing offenders. Because alternative programs are less costly than incarceration, and because research strongly suggests that certain programs can be as effective, or even more effective, than incarceration in reducing recidivism, an intelligent and cost-effective criminal justice policy in New York requires that the State (as well as local governments) adequately fund alternative programs that have demonstrated their success in supervising and treating offenders."
Report of the NYS Unified Court System’s Committee on Alternative Criminal Sanctions, December 1996
Connecticut’s Alternative to Incarceration (AIP) program has been 2 to 5 times more successful than prison in reducing crime of drug offenders.
Longitudinal Study, Justice Education Center, ’96
Ohio’s treatment program had marked decreases (41%) in criminal arrests after treatment. Accidents, moving vehicle violations, and DUI arrests also decreased significantly after treatment.
Cost Effectiveness Study, Ohio Dept. Alcohol & Drug Addiction Services, ’96
Adult basic education programs result in $2.40 in benefits per dollar spent on the program.
The Comparative Costs and Benefits of Programs to Reduce Crime, Washington State Institute for Public Policy, '99

Effectiveness of Drug Treatment

A 1997 study by RAND concluded that treatment is the most effective tool in the fight against drug abuse. RAND found that treatment is 15 times more effective in reducing serious crime than are mandatory minimums.
Caulkins et al, RAND Study, ’97
The 1994 California Drug and Alcohol Treatment Assessment found that people receiving alcohol and drug treatment were hospitalized one-third less often after completing treatment than before entering such a program.
The 1996 National Treatment Improvement Evaluation Study found that drug-related medical visits decreased by more than 50% following treatment, while in-patient mental health visits decreased by more than 25%.
An additional dollar invested in treatment for cocaine addiction results in $7.46 worth of savings in societal costs.
Controlling Cocaine: Supply vs. Demand Programs, RAND, '94

The Public Viewpoint

In 2000, the NYS League of Women Voters conducted "study circles" - discussion groups on the subject of criminal justice throughout New York State. Over 160 discussion groups took place in 71 different communities, engaging more than 2,200 citizens, criminal justice professionals and elected officials. The results:
. Of the 140 groups that submitted reports, 111 made reference to the Rockefeller Drug Laws or New York’s mandatory sentencing laws. Of those, 109 groups (98%) called for review, reform or repeal of such laws.
. 136 out of 140 groups (97%) submitting reports favored rehabilitation as one of the most important goals for the criminal justice system.
The NYS League of Women Voters has supported more alternatives to incarceration, the Aubry Assembly bill A4117 and the Montgomery Senate bill S7611 for reform of the Rockefeller Drug Laws and the Second Felony Law.
LWV State Board Report, Sept. 2000
Editorial writers across New York State have repeatedly reflected the opinions of their readers and called for repeal or reform of the Rockefeller Drug Laws and the Second Felony Law.
Major changes needed. When asked whether they liked the idea of totally revamping the way the criminal justice system works, or if the present system works well enough the way it is, three-fourths of the polled public in the North Eastern part of the U.S. preferred totally revamping the way the criminal justice system works.
Report by the Council of State Governments, Eastern Regional Conference, ‘99.
According to a recent Zogby International poll:
· 64% of the public do not consider a legislator who votes for drug law reform soft on crime; more than double those who do (31%).
· 51% are more likely to vote for a legislator who supports a bill to reduce drug sentences; 25% are less likely.

A REBUTTAL TO THE NYS DISTRICT ATTORNEYS ASSOCIATION

Prosecutors tell us:

· 77% of drug offenders have one or more prior felony convictions.

What they don’t also say:

(see Human Rights Watch report, "Drugs and Human rights, HRW World Report, 1999)
· 89% of the repeat drug offenders were convicted of minor crimes (class C, D, or E).
· Many of these repeat offenders were addicts selling small amounts to feed their habits.
· One in four drug offenders was convicted of simply possessing drugs.

Prosecutors tell us:

· Drug laws have been successful because crime rates are down.

What they don’t also say:

· A good economy, police actions, neighborhood cleanups, and many other factors contribute to crime reduction.
. States without such harsh drug laws have had similar crime reductions.
· Imprisonment of over 100,000 offenders in NYS has had scant impact on the use or availability of drugs. Police readily acknowledge that for every low-level drug seller taken off the streets, another person quickly fills his or her place.
· The availability of drugs is as great and as cheap as ever.

Federal Judges Register Opposiion to Mandatory Guidelines

Recently released results of a 1996 Federal Judicial Center survey of federal judges shows strong opposition to the federal sentencing guidelines. The survey is based on completed questionaires from 591 district judges, 140 circuit judges and 89 chief probation officers. Major findings include:

73% of district judges and 69% of circuit judges believe mandatory sentencing guidelines are unnecessary.
Of those judges who oppose mandaory guidelines, 67% favor advisory guidelines.
63% of district judges believe first-time offenders should be eligible for alternatives to incarceration; 47% would apply this to nonviolent offenders generally; 67% would apply this to offenders with extenuating circumstances (e.g., illness, handicap, dependents).

NYS Court System Thunders Against Mandatories

The December 1996 report of the New York State Court System's Judicial Advisory Committe on Alternatives contains a forceful call for State action:

"It is apparent that each year thousands of persons who present no, or a minimal, threat to public safety are being committed to State prison. And this is being done despite the exorbitant costs involved and despite the fact that communty-based programs may well be as effective, or appreciably more effective, in rebuilding these offenders."

"The penal laws shouldbe amended to eliminate mandatory terms for Class B and Class C second felony drug offenders with substance abuse problems whose prior felony conviction was also a drug offense; in lieu of a sentence of imprisonment, the court should be authorized to sentence these offenders to mandatory substance abuse treatment."

New York Lawyers Shout

The recent Report and Recommendations of the Drug Policy Task force of the New York County Lawyers Association "has concluded that contemporary drug policy has failed by virtually every objective standard."

Their recommendations include "the downward modification of mandatory minimum sentences in drug cases; and increased judicial discretion in the sentencing of drug offenders, with further reliance upon drug treatment and other diversionary programs as alternatives to incarceration for the non-violent drug offender." (Justicia, February 1997)

A More Sensible Approach

The most appropriate alternative punishment for non-violent, mostly drug involved offenders is not prison, but intensive supervision, based in urban neighborhoods, that includes such features as day reporting, community service, job training, and mandatory participation in drug treatment. Implemented properly, this type of program can closely monitor the offender's behavior while simultaneously providing them with support services and making sure they repay the community and/or the victim for the property stolen or damage done.

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