New York Gov. George Pataki this week proposed easing some of the harshest of the Rockefeller Drug Laws - the first mandatory sentencing laws in the United States, which wer`e passed a quarter century ago and set off a wave of get-tough antidrug legislation nationwide.
Critics say Governor Pataki's proposals don't do enough to address the problems created by laws that mandate sentences of a certain length - from prison overcrowding to the incarceration of thousands of nonviolent drug offenders to the loss of judicial discretion. But they also see the symbolic importance of even a modest reform of the laws.
Indeed, for many the move signals the growing shift under way in the country's drug policy - one that continues to recognize the significance of tough law enforcement as a coercive tool, but also puts more emphasis on drug treatment, prevention, and education. The nation's drug czar, retired Army Gen. Barry McCaffrey, won't even call it a "war on drugs" anymore.
"Addicted Americans are not the enemy; they require treatment," he says. "Wars are waged with weapons and soldiers; prevention and treatment are the primary tools in our fight against drugs."
New York got tough
When first passed in 1973, New York's mandatory minimum sentence of 15 years to life in prison for possession of at least four ounces of narcotics was the most draconian in the country. It was seen as a tough, no-nonsense way to stem the spiraling rate of drug use. Dozens of states and the federal government followed suit, taking away judges' discretion in sentencing drug felons and replacing it with a set of predetermined mandates.
That shifted power from the judges to prosecutors, who could bargain with defendants by agreeing to press lesser charges with lesser minimum sentences in exchange for information. The end result: Many higher-level drug dealers were able to bargain for lower sentences, while lower-level dealers and addicts ended up facing long stints behind bars.
The prison population has more than tripled since 1980, in large part because of these tough mandatory minimums.
Recognizing these problems, Pataki called for a review of the drug laws as far back as 1995. But instead of the sweeping revisions critics had hoped for, Pataki this week took a more modest approach. He proposes to ease some of the most stringent drug penalties by allowing those sentenced to 15 years to life the opportunity to appeal their sentences in the hopes of having them reduced to 10 years to life.
But the most unusual proposal would give repeat, nonviolent drug offenders facing 4-1/2 to nine years in prison the option of going into drug treatment for up to 18 months, if prosecutors agree.
Rhonda Horne-Ferdinand, an assistant district attorney in New York City's Office of the Special Narcotics Prosecutor, declined to comment on the proposals to change the mandatory minimum laws. But her office is leading the development of alternatives to incarceration, and some of their experimental programs could be turned into state law under the Pataki proposal.
"We employ what's called a 'deferred sentencing model,' which means that every defendant that comes in enters a plea of guilty, but sentencing is deferred. If you successfully complete the [drug treatment] program, you're forgiven and the case gets dismissed," she says. "But if you don't, or you commit another crime, there's a 'go directly to jail' clause."
Alternatives to prison
As the bursting prison populations continue to strain state budgets, prosecutors and legislators around the country are eyeing such treatment-based alternatives.
A recent survey of 1,500 local leaders on the front line in the fight against substance abuse found that they overwhelmingly believe the federal and state governments should shift their focus from such harsh law-enforcement remedies to treatment, prevention, and education.
"It's enormously expensive to [fight drugs] the way we are now. In fact, it's the most expensive, least effective way," says David Rosenbloom, director of Join Together, a national clearing house for community substance-abuse and antigun initiatives. "Long prison sentences are expensive, it costs more than $20,000 a year to keep a person locked up."
Arizona is the first state in the country to divert all of its nonviolent drug offenders into probation and treatment instead of prison. A recent study by its Supreme Court estimated the state saved 2.5 million in its first year of operation and predicted even greater savings in the future.
Attacking the demand side
Indeed, the federal government has also been supporting the development of alternative programs like drug courts, where people charged with drug offenses are given the option of going into treatment to clear their records. Three years ago, there were only a dozen such drug courts around the country; now there are more than 600 operating or coming on line.
"You can substantially modify drug-taking behavior with effective drug treatment, particularly if its tied into some coercive program," says General McCaffrey.
While the bulk of the 17 billion federal antidrug dollars is still spent on law enforcement and interdiction, McCaffrey is working to put more money into attacking the demand side.
In the last four years, he's helped increase the amount of money available for prevention education by 55 percent, drug treatment funds have gone up by 26 percent, and research in substance abuse has jumped 36 percent.
While critics of the national drug policy applaud that effort, they'd still like to see significantly more resources go to helping people overcome their addictions.