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Senate floor · Regular Session

Wednesday, August 4, 1999

Gaveled in 1:18 PM · Albany, New York · 1999–00 session

Official stenographic record

Transcript

Cover page and appearances

NEW YORK STATE SENATE
                   THE
           STENOGRAPHIC RECORD
            ALBANY, NEW YORK
             August 4, 1999
                1:18 p.m.
             REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary

           P R O C E E D I N G S

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THE PRESIDENT:The Senate will come to order.

I ask everyone present to please rise and recite with me the Pledge of Allegiance.

(Whereupon, the assemblage recited the Pledge of Allegiance to the Flag.)

THE PRESIDENT:The invocation today will be given by the Reverend Peter G. Young, the pastor of the Blessed Sacrament Church in Bolton Landing, New York.

REVEREND YOUNG:Let us pray, on this beautiful August day to ask You, Oh Lord, that You bless us by Your presence and Your blessings of time together in this summer session.

We have come to express our concern about the welfare our country and our community, of our state, to learn from each other, to grow in spirit and in character, to find Your will for our lives and our neighborhoods.

We thank you for the opportunity in this country to assemble and to be a part of the process here in this Senate Chamber.

p. 6768

Grant us the wisdom to carry out the decisions that are within Your will. Bless us as we continue to conduct our business with dignity and in sensitive ways.

Amen.

THE PRESIDENT:Thank you. Reading of the Journal.

THE SECRETARY:In Senate, Tuesday, August 3rd, the Senate met pursuant to adjournment. The Journal of Monday August 2nd was read and approved. On motion Senate adjourned.

THE PRESIDENT:Without object the Journal stands approved as read.

SENATOR DOLLINGER:I appreciate Senator Volker explaining the Governor's Program Bill. I know that there are parts of it from the language that I've looked at briefly that I think could be improved. My hope is if this comes to a negotiation with our colleagues in the Assembly we'll get to that point, but I do want to add just one critical comment. The point that Senator Volker makes about reopening the door in the sentencing phase and applying broader discretion should not be lost in the context of the continuing march the development of extra prisons and jail cells in this state. Three hundred and twenty people in a single year could be affected by this bill who might get a greater, a broader discretion in their sentencing. Three hundred and twenty people is the better part of a quarter or a third of a prison and that's the kind of thing we ought to be looking at, the enormous costs associated with incarceration of those who would qualify. This is mostly users, possessors, that people who have severe drug problems who are addicted would be affected by this change. I don't know that this will be done. It's a very complicated bill, as Senator Volker says in the next, what I hope is the next hour that we're going to be in session, but I would certainly encourage Senator Volker, if this bill passes this house, to continue to keep the door of discretion open. It's critically important for those people who have already, may have paid too severe a price based on the Rockefeller Drug Laws. But it seems to me a lot has changed since Governor Rockefeller was governor of this state and one thing that's changed is we've come to an awareness that those kinds of users don't deserve Draconian penalties for mere possession. My hope is that we will -- this is the first step in a progression to make those changes, reopen the door to discretion, give our trial judges the ability to properly mold justice to the cases of drug users who are addicted and who need treatment more than they need criminal penalties. Thank you.

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I have no problem with determinant sentencing within a fair range with discretion of the judge. Even as I have no problem with the provision that says a prosecutor can appeal and the illegal, which they can now, or unduly lenient sentence. The reality is there are going to be two or three such appeals a year, at that. Prosecutors have a lot of other things to work on in their appeals, they're only going to focus on cases that are clearly, clearly off the charts. Even as today defendants can appeal sentences to the Appellate Division, it's a rare sentence that the Appellate Court ever reduces, usually only when it was either illegal or just unduly harsh and very few of those today, given the mandatory sentencing scheme. Most judges just apply the mandatory sentence and there's no way they'll -- So to let either side appeal cases that are way off the fringe, either in being ridiculously lenient such that it makes one raise one's eyebrows about what that particular sentencing judge was thinking of, and even raises questions of what's going on there, it doesn't bother me. Even if it certainly is appropriate when a judge seems to throw the book at somebody and it makes you suspect what was going on in that judge's mind. Those cases at either end ought to be appealed. Somebody ought to take a look at them. So I think, in sum, certainly the way this treats, gives an opportunity even for second offender nonviolent felonies, felons, in the cases of drug possession kind of stuff, gives them still another chance to avoid unduly harsh prison and even lets them qualify for alternative drug treatment. I think that's appropriate. I think a number of my colleagues on this side of the aisle when we first did the diversion program, when we first did it, you'll recall the Willard Program, our concern, and I remember Senator Waldon and others articulating was that when we set up the Willard Program limited it to first offender nonviolent felons. We were concerned that gee, it was such a short program that the likelihood of it actually curing the addict was, it was less likely they'd actually cure these people and then we would be setting them up for a second bust to which harsh mandatory sentences. We're always talking about nonviolent drug possessors, users basically. They would be kind of set up for it. You know you cop a plea to that first one, get the Willard Program. If the Willard Program doesn't work, you're back there in six months and now you've got nowhere to turn, you don't qualify for that, and you actually set yourself up for a mandatory hefty sentence. So that's a good change. So there are good changes in here. Overall it produces a scheme that's more rational, fairer and proportionate and leaves an appropriate amount of discretion in the hands of the judge who actually gets to see the defendant, gets to evaluate the facts in the case. I just would urge this legislature to go forward and remediate some of the injustices that the Rockefeller Drug Laws have produced in the past. I recognize there is some ability to do that here, but we ought to just bite the bullet and do the whole thing. So, Mr. President, I congratulate Senator Volker and the Governor for proposing this and I'm happy to support it. Thank you.

SENATOR VOLKER:I assume I'll close. Let me just say that, Senator Connor, that some people might say it's a little scary that you and I agree on a number of things, but it's not true. I mean, you know, a definite sentencing is a fascinating issue. Years ago I think Doug Barclay was the Chairman of Codes and we did some commission or it was joint codes group, we went across the state on the issue of definite sentencing, the Assembly and the Senate. It was fascinating because we were attacked from the right. We had a proposal on definite sentencing. We were attacked from the right and the left. The liberals thought that it was a conservative plot and the conservatives thought it was a liberal plot because the liberals said what'll happen is all those New York City judges and all those people will let everybody out and the other people said the reverse. And we kind of shook our heads when it was over and we said, well, we weren't exactly plotting on anything. And it was an interesting story because it showed how there was so much division on both sides on the issue because you looked at it from the provision you wanted to look at it from. If you were on this side, you said well that will screw things up because it was change. The problem with change is it's always very difficult. You mentioned Willard. It's interesting because this House was pretty united in what you say. We wanted a longer term at Willard. I don't think it's a big secret. It was the Assembly that didn't want it. And I don't, you know, want to get into that. It seems as if they thought it was going to fail anyway or something and we thought that it should be at least a year or a minimum of nine months or whatever, and I think both sides in this house felt that way and I think it's unfortunate because I think it would have made for a much better program and it's one of the reasons, I think, why the DAs have been so reluctant to certify people into the programs. Of course, one reason is that there's a suspicion that they're very nervous about some of the people that they allow the pleas for, that maybe they weren't quite as nonviolent as the pleas showed, but that's another matter.

p. 6894

Let me just finish on the Rockefeller Drug Laws because there's been a lot of talk about this and I think there's been more heat than light in the media. I was closer to the Rockefeller Drug Law issue than virtually anybody else for various reasons and I'm here in the Senate primarily because of the Rockefeller Drug Laws because Nelson Rockefeller and I clashed so viciously on it that, let's just say he helped me to get into the Senate by getting me out of the Assembly. He was very bitter over the changes in the Rockefeller Drug Laws. One thing I think that people should understand, the initial Rockefeller Drug Laws were much tougher. In fact, Dom DeCarlo, the late Dom DeCarlo, who just left this year, and I fought very vehemently internally and I was a police officer just off the street within a year on this very issue because we said that, you know, it's pretty ridiculous. But the one thing that I think everyone should understand when you talk about mandatory sentencing, the real reason we went to mandatory sentencing of drug offenders is there was clear and pervasive evidence that New York City judges as a whole were sentencing drug offenders to one-third of what judges outside of New York City were sentencing to and there were many judges in New York City who couldn't bring themselves to send people to jail, and the rest of the state was very concerned about the impact of that. My personal opinion is, although I might have been certainly even willing at the time to give some discretion, I really think the Rockefeller Drug Laws as such and drug laws in general, along with persistent violent felony offender and second felony offender were a roaring success. I know there's people who would disagree and I'm not saying that some discretion, and I'm certainly not saying that some discretion couldn't be allowed now, but we have made enormous strides in the drug laws. You could not have the decline in violent felony offenses you have today, in my opinion, without the decline in the drug culture. It's not that it isn't there, it is. That's my personal opinion, has been for a long time. But let's not think that the laws as they are now have not been amended. It's been amended many, many times and even the initial proposal by Nelson Rockefeller was rather dramatically changed from his first proposal and results of that, by the way, he was very, very bitter. I can tell you because I personally discussed it with him, face-to-face, very much so. In fact, we, as I said, we had a number of discussion and Nelson could be very forceful. But in any case, we certainly, and Senator Bruno has been saying it for some time, that we've been willing to discuss this. The biggest problem is that we have people who really want to destroy the whole drug law system and a lot of us have a concern with that. We're willing to discuss changes and allow the possibility of some more leniency in the area of looking at cases in terms of whether there may have been too severe sentences, but many, I think many of us still believe that you better be very careful because we are talking about the curse of drugs which is something that nearly destroyed the inner cities of most of this country, and certainly New York City and is only now, I think, beginning to show itself under some real control.

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