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In an effort to break the logjam that has stymied hopes of Rockefeller Drug Law reform this legislative session, New York Gov. George Pataki unveiled a new compromise plan designed to put one of his major 2001 goals back on the front burner. The latest proposal would give judges more discretion in diverting offenders to treatment, and would also partially drop a prior provision that would have given prosecutors a virtual veto over diversion. Although the new initiative is not nearly as revolutionary as many advocates would prefer, or even as broad as a reform package promoted by the Assembly Democrats, it is far more expansive than some opponents would like. It remains to be seen if the proposal, an obvious attempt to strike a compromise between those favoring unfettered judicial discretion and those advocating no judicial discretion, can clear both houses of the Legislature. However, for the first time in several weeks there is cause for hope at the Capitol that reform can be achieved this year. In a press release — the proposal, crafted largely by Criminal Justice Director Katherine N. Lapp and Counsel to the Governor James McGuire, has not yet been drafted as a bill — the governor’s office said the latest plan would: � Allow second-time B, C, D and E drug felons with no violent history to apply for a Court Approved Drug Abuse Treatment (CADAT) program. Eligibility would be contingent on the defendant proving drug dependency through clear and convincing evidence, after which a court would have the authority to declare that the offender is a substance abuser in need of treatment. � Provide that the offender would be sentenced to a determinate term, which would be served through successful completion of a nine-month in-prison treatment protocol followed by six months in residential treatment. Offenders who complete the program would be subject to post-release supervision, including six months out-patient drug treatment. Those provisions would be incorporated in a proposal that includes: � reduced sentences for nonviolent repeat offenders; � new drug kingpin, armed drug felony elements and Internet drug sale elements; � increased penalties for the use of minors in drug transactions; � random quarterly testing for substance-abusing parolees; � tougher penalties for repeat and large-scale marijuana traffickers; and � a prerelease facility to help the transition of drug felons returning to the community. The administration estimates that about 2,800 offenders annually would be eligible for CADAT. In the press release, the administration said that under the new proposal an eligible applicant for CADAT would be ordered by the court to undergo substance abuse screening, and would have to agree to be interviewed by a prosecutor regarding his or her drug dependency. Either the prosecution or defense would have the right to move a CADAT eligibility matter from the assigned judge to one specially trained by the Office of Court Administration to adjudicate drug matters. DEPENDENCY HEARING At a hearing, a defendant would have to show that he or she has a history of drug dependency, and committed the underlying crime because of that dependency and not for financial gain. The defendant would also have to show a reasonable likelihood that drug treatment will be successful, and that participation in CADAT would not impair public confidence in the criminal justice system. If accepted, the offender would serve nine months in a treatment program approved by the Department of Corrections, followed by six months in residential treatment and post-release supervision. Noncompliance could land the offender in state prison to serve the remainder of the court-imposed sentence. “This proposal builds upon the comprehensive legislative package I released earlier this year by expanding judicial discretion in sentencing drug-addicted non-violent offenders while maintaining a significant role for prosecutors to ensure that public safety is not compromised,” the governor said in the press release. In an interview last night, Lapp said the governor believes the time is ripe for reform and is eager to bring the issue to the legislative forefront. “Clearly, the governor’s current proposal is a movement by him to balance greater judicial discretion while recognizing the importance of a strong prosecutorial role in the process,” Lapp said. “This deals with offenders who need much more structured treatment as a sanction, yet does not in any way compromise public safety.” Pataki promised in his State of the State address in January to propose major reforms of the Rockefeller Drug Laws. The bill he later submitted would have reduced sentences in some cases and provided for treatment diversion with the consent of the prosecutor. That plan was a disappointment to long-time reform advocates who complained the initiative did not go far enough, and prosecutors who claimed it went too far. It resulted in a more ambitious Assembly proposal that is strongly opposed by prosecutors. CAREFUL ORCHESTRATION Although inside observers at the Capitol had concluded there was virtually no chance that the harsh drug statutes would be altered this Legislative session, the Pataki administration this week revived the issue in a carefully orchestrated manner. Instead of announcing the plan generally to the public, it was revealed exclusively to The New York Times a day early. And instead of having Lapp, who has been the point person on Rockefeller Drug Law reform from day one, make the announcement, the administration gave that task to newly named Secretary of State Randy Daniels, a black man from Harlem and self-described “Pataki Democrat.” In the Times, Daniels, speaking on behalf of the administration, described the Rockefeller Drug Laws as something “everybody universally considers to be draconian,” a concept that Lapp has previously disputed. With his latest olive branch, the governor is displaying a willingness to compromise considerably, and the manner in which it was released suggests an effort to generate momentum and crucial Democratic support before the opposition has any opportunity to mobilize. Assemblyman Keith Wright, a Manhattan Democrat, said the latest proposal is a good starting point for serious negotiation, something that has not occurred to date. “We have had a series of conversations with the governor and it sounds like he now wants to talk about things,” Wright said. “After some politics, now it sounds like people are ready to talk. They threw out their salvos, we threw out ours, and it looks now like people are willing to negotiate and compromise.” Wright chuckled at the administration’s decision to put the new secretary of state in a lead role. “I can’t think of ever when a secretary of state would comment on a piece of major legislation,” Wright said. Yet, if the new proposal brings the governor and legislative leadership to the bargaining table, Wright said the political mechanics are of little import. “I think the parties in each house, the Senate and Assembly, have to come to the table to talk with the governor,” Wright said. “Hopefully, that will happen without much press and much fanfare so we can formulate a resolution. For the past 30 years, we have had some very harsh and unjust drug laws, and hopefully as responsible legislators, which I like to think we are,” reforms can be achieved this session. Still, there are significant hurdles to clear, particularly in the Senate. But reform advocates and prosecutors are also leery. Robert Carney, past president of the state District Attorneys Association and chairman of its executive committee, said he is disappointed with the governor’s proposal, and disputes the contention that the Rockefeller Drug Laws have flooded prisons with addicts. He said there are already programs to help addicts, and he expressed concern that the proposed initiative would bleed funds from existing, successful efforts. “There is this false assumption out there that drug dealers are some sort of special class of people who are being unfairly treated by prosecutors who wield all this power at the expense of judges who would otherwise treat the addiction,” Carney said. “There seems to be a premise that all drug dealers are addicts, and that is built into this proposal.” Former Sen. John Dunne, an author of the original Rockefeller Drug Laws and now the leading advocate for their reform, said Tuesday that the latest development is a major breakthrough in that it is a “clear acknowledgement [by the governor] that his original proposal is not the ‘dramatic’ reform he promised in January, and a recognition that the decision to divert to treatment should be made by a judge and not by the district attorney.” Anita Marton, senior staff attorney at the Legal Action Center, questioned the governor’s commitment to treatment. “We are very pleased the governor is looking to introduce a new proposal that would include individuals who are charged with B-level offenses and might be charged with sales,” Marton said. “We are concerned, however, at the shape of that proposal. This seems to be a proposal that diverts from prison to prison, with no opportunity to divert people to community-based treatment.” John Coppola, executive director of the Alcohol and Substance Abuse Providers of New York, said he is “really concerned that this proposal comes up very, very short.” Coppola said it is not clear that the proposal recognizes addiction as a public health, rather than criminal justice, problem. Deborah Small, director of public policy at the Lindesmith Center, said it is significant that the governor seems to be backing off his prior insistence that prosecutors have a veto over diversion. She said, however, that a major drawback is an apparent condition that in order to be eligible for diversion a defendant would have to plead guilty to a higher level of offense.

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