Testimony of New York State Corrections Commissioner Thomas A. Coughlin, III:

"Rockefeller Drug Laws -- 20 Years Later"

Before a hearing convened by the Assembly Committee on Codes

Tuesday, June 8, 1993

Good afternoon. It is a pleasure to appear before this panel to formalize . . . for the record . . . my position on what has become known as the Rockefeller drug laws.

Contrary to popular belief, I was not the prison commissioner when they were enacted. But this month, as I close in on 14 years as Corrections Commissioner, I believe that I offer a unique perspective on the subject before us today.

Because . . . more than anyone else in State government today. . . I have seen the effects - both good and bad - of these laws. I've seen them used to lock up the right people for very, very long periods of time. But I have also seen them lock up the wrong people. . . for the wrong reasons.

Let me summarize the impact of the Rockefeller drug laws. . . upon the prison population . . . and why I think we desperately need to modify our approach to the drug epidemic plaguing New York State.

As of May 25, the prison house 64,000 inmates -- 2,000 of them living in double bunks that were added as an emergency response to a bed shortage. Because of fiscal constraints and policy differences, no new prison construction has been authorized by the Legislature for several years. Nevertheless, the prison population continues to grow . . . as does the backlog of 1,700 offenders . . . waiting out in the counties, to be received into the Department's custody.

If each of the 64,000 people actually belonged in prison, I would have no problem in simply asking the legislature to pay $100,000 each for all the new cells that I need. But that is not the case. And we are putting untold pressures on prison employees by crowding our prisons. And, quite frankly, we unnecessarily invite trouble when crowding forces met to put more inmates out on the streets. . . in work release . . . than I feel comfortable with.

My position has long been that prison space is a finite resource. We should be filling them with the people we built them for -- the violent predator and repeat offenders. Not the guy who got caught with a few bucks worth of crack. The time is long overdue for the Legislature to recognize this distinction and enact some basic reforms to our sentencing structure.

I firmly believe that drug addiction affecting the street level addict can be far more successfully treated in community settings, instead of the prison environment. It used to be that offenders came to prison and got the high school diploma they never earned on the outside. Now, street addicts are coming to $100,000 prison cells that cost $27,000 a year to operate . . . to get the same drug treatment that could be available at $5,000 to $10,000 per person on the street.

It would make far more sense -- logistically and economically -- to provide initial diversion from the prison system to community-based treatment provideers in the first instance for the street level addict. Treatment, not punishment, should be our first line of defense for non-violent addicts . . . in our so-called war against drugs. We can't do that.

Meanwhile, the punitive effect of the Rockefeller drug laws, as well as the rigidity of the second felony offender laws, do not deter, they do not lessen, nor do they cure drug addiction. Instead, as far as prisons are being filled with low-level drug offenders, more street level sellers and abusers appear to take the place of those individuals who get caught up in the criminal justice system.

Thus, as a simple matter of common sense, if not pure economics, we are wasting valuable and limited prison space on low-level, non-violent offenders. Space that could be more appropriately utilized keeping violent felony offenders incarcerated for longer periods of time. There is no question that forcing drug offenders into the State prison system at the current rate of incarceration detracts from our ability to incarcerate violent offenders, which, in turn, only weakens our overall ability to promote public protection. And the public isn't fooled, just look ad the newspaper or watching the evening news.

In the early eighties, drug offenders accounted for roughly 10 percent of all new court commitments to the Department. The prison population was, instaed, dominated by those committing violent felony offenses.

Since 1989, commitments for violent felonies and other coercive crimes consistently totaled just under 40 percent of the total number of new court commitments. But drug offenses consistently comprised 45 percent of commitments.

If ought to be obvious, we are locking up people for their addiction, at higher rates than for those who commit violence against us.

Despite the obvious, there is a near insurmountable political paralysis in relation to sentencing reform. Some of our elected officials are so obsessed with the possibility of being labeled soft on crime, that the sweep away all rational discussion of the futility of our present approach. The end result is that we all come up big losers -- the public at large, the taxpayer, and the prison employees who labor all day in crowded prisons.

I am well aware of the fact that the public response to the prevalence of crime is to treat all offenders with singularity of purpose, regardless of crime. In effect, "lock them up and throw away the key." But that is the same public which voted down the Prison Construction Bond Act in 1981. I believe that common sense can prevail -- if we only take the time to communicate to the general public . . . calmly and clearly . . . what is really going on.

For example, if you explain to the public that the law currently has the identical 8 to 25 year maximum sentencing range, for a person who commits a forcible rape and for a person who sells a dollar's worth of cocaine. . . I believe it would tell you that our legal sense of priorities is totally out of whack. Yet, that is exactly what the current law provides.

The identical treatment of these two offenses, which have such a disproportionate impact upon their victims, borders on the ridiculous. It is for this and other reasons that the Rockefeller drug laws need to be reexamined and reevaluated in their entirety.

In 1974, the year after the Rockefeller drug laws were enacted, there was a total of 713 new prison commitments for drug felonies. IN 1992, there were more than 11,000 drug felony commitments. Cumulatively through 1992, nearly 75,000 individuals have been committed under the Rockefeller drug laws. Yet, the extremely punitive aspects of the Rockefeller drug laws do not appear to have had any deterrent effect whatsoever on the drug problem.

Because of widespread availability, the prices for both heroin and cocaine have recently fallen, according to media reports. Crack is reportedly sold for as low as 75 cents a hit. Heroin is down to $5 a bag, with levels of purity higher than five years ago. It appears there are so many dealers that they are cutting prices to stay in business at all. So the Rockefeller drug laws have lost any deterrent effect they might once have had.

But the impact of these laws upon the Department has been staggering. A snapshot of the May 22, under-custody population reveals the following statistics:

Out of a total under-custody population of nearly 64,000 inmates, 22,000 of them are doing time for drug offenses.

1,600 were convicted of a Class C, D, or E felony . . . which means they could have been sentenced to local time or probation instead of state prison.

2,000 of these inmates were convicted of Class B sale or possession, while another 2,100 were convicted of an A-II drug felony and 800 of an A-I drug felony.

But of 22,000 drug offenders, more that 15,000 are second felony offenders -- which means there was no judicial discretion to impose a sentence other than state prison.

I could bore you with numbers, but I won't. Suffice it to say I have them. . . and am more than willing to share them with your staffs at any time. But let me get to the heart of what these numbers mean:

The totality of overall drug commitments has increased at an astronomical rate and now significantly surpasses commitments for violent felonies and other coercive crimes;

Convictions for the sale of drugs predominate, particularly low-level predicate convictions, and

A sizable number of first felony offenders who could have received alternative sentences instead received state prison sentences.

That's where we are today. But the Rockefeller drug laws were the product of another era. They were a straight-forward representation of Legislative intent: Namely, that the severity of the punishments involved would serve as a monumental deterrent to drug trade participants and "wannabe's". These sanctions, it was thought, would keep the drug trade within manageable proportions, by imposing nightmarish penalties upon the drug lords who controlled the trade.

In their worst nightmares, the writers of that legislation never envisioned cheap "crack cocaine", and they never conceived of a society where drug trafficking would occur in private residences. . . with the family in the next room. They could never have foreseen the level of violence that would occur and the massive firepower that would be employed. In short, they never imagined the drug trade as a cottage industry. . . where tens of thousands of street addicts would finance their own habits by becoming low-level drug dealers themselves.

Filling the state's prisons with those low-level drug offenders has not diminished drug trafficking in the slightest degree. In continuing to allow this scenario to play out, we are squandering limited resources that could be more appropriately utilized for violent felony offenders. At the same time, resources for providing drug treatment services within the community go under-funded . . . even while we know they could, in some cases, be more effective than incarceration.

The Governor's Executive Budget for 1993-94 contained several important proposals that would have amended either the Rockefeller drug laws themselves, or their effect when combined with the second felony offender law. For example, the current A-1 felony weights for possession and sale, which are set at four and two ounces respectively, would have been increased to eight and four ounces respectively. Since an A-1 felony conviction is punishable by a minimum term ranging between 15 and 25 years, such a change would have better aligned our drug laws with the current nature of the drug trade. It would recognize the difference between a dealer and an addict.

Another proposed change would have amended the second felony offender law to grant discretion to the sentencing judge . . . discretion to impose probation, local jail, an alternative sentence. They could continue to impose the same incarceration, or a shorter minimum term State prison sentence in the case of Class C, D, and E nonviolent predicate felony offenders whose predicate crime was also a nonviolent offense.

Regrettably, both houses of the Legislature agreed between themselves to not even consider negotiating these changes. And they have offered nothing in their place. Besides have rejected the Governor's proposal, the Legislature is telling the public that it has no coordinated approach to criminal justice.

It isn't enough to tell the public, "We can prove we're tough on crime because we won't enact alternatives." And it is equally insufficient to say, "We won't build any more prisons."

Instead of repeating and echoing the courses that you won't follow, the public is waiting to see in what direction you will lead. The Governor has made proposals that deserve more than the deafening silence of the Legislature.

This hearing today builds upon those Executive proposals, by trying to focus public attention on the Rockefeller drug laws. They may have been the right statutes for the 1970's, but we are addressing the realities of the 1990's.

I believe those realities require as dramatic and intelligent a change in our sentencing structures, as the Rockefeller drug laws were in their era. For the public to have faith in the criminal justice system, it must be seen as swift, as firm, and as equitable.

When you have thousands of offenders waiting trail and hundreds backed up in country jails, justice is not swift.

When the courts are so crowded with low-level cases that 95 percent of all cases are pleaded, justice is not firm.

And when the violent rapist gets the same sentence as the seller of a buck's worth of drugs, justice is not equitable.

Reform of the Rockefeller drug laws is only one part of the medicine needed to cure our criminal justice system. I look forward to working with each of you to restoring the public's slipping faith and skepticism about our criminal justice system.