Assembly backs changes to Rockefeller-era drug laws, but passage in Senate far from assured

Bob Clark

Some state legislators and law enforcement officers are questioning a bill believed to be easing the 1970s-era Rockefeller drug laws.

Assemblyman Jim Bacalles, R,C,I-Corning, who represents Steuben and Schuyler Counties, voted against the measure as it was passed by the Assembly on Wednesday by an almost party-line vote of 96-46, with no Republicans in favor.

Bacalles said his biggest problem with the latest attempt to loosen some of the tightest drug control laws in the nation comes from offering some felons drug treatment programs to avoid jail time.

“Everything I have been told by alcohol and substance abuse people ... It’s the person who has the problem. They have to say, ‘I have a problem,’” Bacalles said. “They have to hit rock bottom.”

If the option is given to those up for trial, he said, the decision would be an easy one, even if they were not serious about treatment.

“If the choice is 5 to 10 years in prison or going into treatment, which one are they going to choose?” he said. “They’re going to take treatment.”

Another problem is the cutoff amount of drugs a person would have to possess before getting ruled out of treatment and going straight to jail. According to Bacalles, the limit for cocaine would be between 4,000 and 5,000 hits.

“That seems a little excessive,” he said, adding a person with as many as 3,500 hits would be allowed to go into treatment if the judge agreed. “I think you’re doing more than just recreationally using (with that much).”

The Rockefeller drug laws, named after former Gov. Nelson Rockefeller, were signed into law in 1973 and put anyone with more than two ounces of heroin, cocaine or marijuana into the same felony class as second-degree murder, punishable by up to life in prison.

Several changes to the laws have been made since then, including lower minimum sentences and no longer placing marijuana on the same punishment scale as heroin or other opiates.

The changes now before the Legislature would be the first since 2005, but Bacalles still isn’t sure how that last round of legislation worked.

“We really haven’t seen any statistics on those changes,” Bacalles said, adding he would rather see the results of those actions first and act with that information before implementing new changes which could potentially be counter-productive.

This most recent push, initiated by Democrats working with a majority in both the state Assembly and Senate, came following Gov. David Paterson's State of the State address, which mentioned reforming the laws to focus more on rehabilitation than punishment.

One part of the current laws that could use some reworking include the rules for mandatory minimum sentences.

“There are some cases where judicial discretion should be used,” Bacalles said, “but that wasn’t really in this legislation.”

The matter was sent to the state Senate, with the bill now before the state Senate Committee on Crime Victims, Crime and Correction, which state Sen. George Winner, R-Elmira, is a member.

“I don’t know what’s in the Senate version yet, but if I was voting on the Assembly bill, I would have voted no,” Winner said, adding there are enough in the Senate who agree with him that the bill might die before it gets to Paterson’s desk. “From all indications, I don’t think the Democrats have all the support.”

Winner feels there were some problems with the original legislation, but 2004 and 2005 changes to the state’s drug laws corrected those.

“It was presented by anecdotal examples, like the girlfriend drug mule whose boyfriend put 20 pounds of heroin in their backpack,” Winner said. “We took care of all that.”

While some changes made at the time were good, “I think we’ve seen some terrible mistakes,” Winner said, adding removing some of the mandatory sentencing regulations was a mistake, especially for non-violent offenders.

“Anyone who contends drug dealing is non-violent, they are very naive,” he said, citing studies that claim the majority of violent crimes involve drugs.

Winner also said the bill would take the decision to send felons to treatment would be given directly to the court, while now the decision is split between the court and the local district attorney’s office. Cutting district attorneys out of the loop could lead to the wrong people being sent to treatment, he added, fearful of repeat offenders.

Repeat offenders are already a major problem for law enforcement officials, according to Steuben County Sheriff Joel Ordway.

“There’s that large percentage of repetitive offenders,” Ordway said. “I see a lot of repeat offenders that I know, I recognize the names.”

Ordway said he welcomes an increase in drug treatment programs when implemented correctly.

“I’m 100-percent supportive of alternatives to incarceration,” Ordway said, but added he feels those convicted of the most serious charges — class B felonies or higher — do not deserve to choose treatment over jail time. “I feel they should serve their time.”

Right now, Ordway said, about half of the arrests made by the Steuben County Sheriff’s Office involve drugs in some way.

“Of those, I’d say about 80 percent of those are class B felonies or higher,” he said.

The current legislation has other problems, Ordway said, including punishing some lower-level offenders the same as major drug traffickers.

“I think it could use some tweaking,” Ordway said, adding he is not a proponent of the “3 Strikes” rule that would put repeat — but small-time  — offenders away for many years.

“A person involved in a transaction with one rock of crack cocaine could be put away for 25 years to life, while the same charge would apply to someone with 50 rocks of crack cocaine,” he added.

Hornell Police Chief Ted Murray, whose department has made a string of heroin arrests in the last year, is cautious about endorsing changes to minimum sentencing guidelines.

“I’m concerned where they make laws releasing those people back into the community,” Murray said, citing the recent rise in heroin arrests in the city, adding repeat offenders often come through the station on charges.

“The majority of people we arrest for felony drug charges have a substantial criminal record,” he said. “In that particular area, we see an awful lot of repeat offenders.”

Currently, D class felons often receive probation or less than a year in the county jail, Murray said, while higher-level offenders do time in state prisons. He said the department does not keep track of how many repeat offenders went through drug treatment programs instead of jail time, so he is unsure how successful those programs are for taking drug dealers off the streets.

The Evening Tribune