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Although the official word in Albany, N.Y., is that there is still a possibility that the Legislature will reconvene next week, and still a possibility that lawmakers will tackle Rockefeller Drug Law reform, the inside conventional wisdom is that all bets are off for this year. If indeed the year ends without reform of the drug laws, it will mark a setback both for the effort and for New York Gov. George Pataki. For advocates, this was viewed as the crucial time, since 2002 is an election year and politicians typically avoid controversial criminal justice reforms when they are campaigning. For Pataki, the inability to forge an agreement would mean failure to achieve one of the priorities he set in his January State of the State message. The governor tends to focus on a limited agenda in that annual outline, but tends to achieve those objectives. However, officials are skeptical that Rockefeller Drug Law reform will be achieved this year, despite the fact that the governor submitted a proposal several months ago that would effect the most sweeping changes to New York’s drug laws in three decades. The problem is that the governor’s plan goes further than many prosecutors would prefer, while falling short of the objectives of reform advocates. A critical issue is how much discretion should be vested in the trial judges, and on that issue no one has yet found a satisfactory middle ground. What is clear, however, is the opinion of many trial judges. The Correctional Association of New York released a report that chronicles the comments judges have made while imposing the harsh sentences mandated by the Rockefeller Drug Laws. The following are excerpts from the report: � “The mere possession of four ounces of this controlled substance is considered by the State of New York to be just as serious as taking a human life. That to me is an absolute atrocity, an absolute barbarous atrocity on the part of the State of New York … .” — Bronx County Supreme Court Justice Frank Torres, 1996. � “I will go on record saying that a sentence, even the minimum sentence on this defendant in this case, the 15 to life, is not a fair sentence.” — Justice Jeffrey G. Berry, Orange County Supreme Court, 1994. � “There’s no way in the world that man deserved to get a 15 to life sentence.” — Justice Martin E. Smith, Broome County Supreme Court, 1999. � “I am handcuffed as a matter of law.” — Justice Seymour Rotker, Queens County Supreme Court, 1995. � “When the amount [of drugs] is just slightly over the threshold and you’re sentencing someone to the same sentence they would get if they had been convicted of intentionally taking someone’s life, sometimes you just feel compelled to comment.” — Justice Steven Fisher, Queens County Supreme Court, 1994. � “I don’t want to do this.” — Justice Eugene Bergin, Monroe County Supreme Court, 1987. COURT OF APPEALS Almost from the outset, the Court of Appeals has expressed grave misgivings about the wisdom of the Rockefeller Drug Laws. Yet the court has consistently upheld the constitutionality of the drug statutes. In the first major test of the drug laws, then-Chief Judge Charles Breitel wrote in People v. Broadie, 37 NY2d 100, (1975), that while drug offenses “are punished more severely and inflexibly” than almost any other offense, judicial restraint and respect for the separation of powers compels the court to yield to legislative prerogative. “[T]he Court does not necessarily approve or concur in the Legislature’s judgment in adopting these sanctions,” Chief Judge Breitel wrote. “Their pragmatic value might well be questioned, since more than a half century of increasingly severe sanctions has failed to stem, if indeed it has not caused, a parallel crescendo of drug abuse … . The Court thus does not pass on the wisdom of the Legislature’s acts.” A year later, in People v. Winnie Jones, 39 NY2d 694 (1976), the court upheld a Rockefeller Drug Law sentence. But in a three-judge dissent led by Chief Judge Breitel, the minority argued that application of the sentence in that case was “unconscionable and barbaric.” The court split again in People v. Thompson, 83 NY2d 477 (1994). In dissent, then-Judge Joseph W. Bellacosa and Judge Carmen Beauchamp Ciparick said the drug laws were so unfair that the judiciary had an obligation to intercede. “We decided to dissent because we concluded that the judiciary has more power and responsibility than it is undertaking in this case and in this critical adjudicative area,” Judge Bellacosa wrote. REFORM PROPOSALS At the moment, there are two major reform proposals on the table: the governor’s and a more expansive proposal by the Assembly Democratic majority. As recently as last week, the Pataki administration made overtures to the Assembly in hopes of negotiating a workable bill. But as of Wednesday there was little hope of reconciling the two measures, and surprisingly that suits some reform advocates just fine. “We are not unhappy that there was no agreement between the Governor and the Assembly because we think a compromise at this time probably would have resulted in a modest reform at best,” said Robert Gangi, executive director of the Correctional Association. “The only thing that will represent true reform is the return of sentencing discretion to the trial judges,” Gangi said. “The Governor’s proposal takes only baby steps in that direction. The Assembly proposal moves in that direction in a much more significant way, but still falls short. Even in the Assembly proposal, the DAs would still control the outcome in far too many drug cases. We are content that this will carry over into the next legislative session.” Prosecutors are insisting on what would amount to a veto power of some diversions. They also vigorously dispute the contention that prisons are crowded with low-level drug offenders. Additionally, prosecutors say they are already using treatment and diversion options where appropriate. Meanwhile, Hispanic leaders are attempting to keep pressure on the governor and Legislature. Political pundits generally agree that the Latino vote could be crucial in next year’s gubernatorial election. In recent weeks, advertisements in Spanish-language media have suggested that the governor can demonstrate his concern for the Latino community by negotiating major reform of the Rockefeller Drug Laws. Gangi said despite the Legislature’s disinclination during an election year to undertake controversial issues, particularly those where its members might be construed as soft on crime, he is not discouraged about the prospects for drug law reform in 2002. “I think the governor does want to wrap the mantle of drug law reform around himself, and I think it is possible that the Democratic gubernatorial candidates would make this an issue during the campaign if there is no resolution,” Gangi said. The Pataki administration said Wednesday that it remains committed to reform.

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