Relates to drug law reform, drug treatment and crime reduction; repealer

The bill requires the designation of at least one drug court, with a specially-trained judge, in every county of the state. Amendments to the Criminal Procedure Law facilitate the transfer of certain criminal cases to these courts. (Sections 12, 14, 27, 28)

In response to a request from the prosecution or defense, the court may order that a defendant charged with a drug crime (Penal Law Article 220 or 221) submit to an alcohol or substance abuse assessment. The assessment would be conducted by a licensed professional experienced in the treatment of alcohol and substance abuse, or by a credentialed addiction and substance abuse counselor. (Section 17)

The bill amends the Criminal Procedure Law concerning two evidentiary presumptions in controlled substance cases. Existing law (CPL § 220.25) provides that, in certain circumstances, drugs found in a car or room are presumed to be unlawfully possessed by every person in such automobile or room. The bill changes this presumption to a "permissible inference." The burden to prove knowing possession would thus rest with the prosecution, but the jury would be able to infer that the defendant knowingly possessed the controlled substance based on his or her presence in the car or close proximity in the room. (Section 46)

With regard to sentencing, the bill returns to judges much of the sentencing discretion they had before the enactment of the so-called Rockefeller Drug Laws, specifically: the discretion to sentence certain non-violent defendants charged with first and second class B, C, D or E felony controlled substance offenses to a local jail, probation, or a "split" sentence (a sentence to local jail followed by a period of probation supervision). Where probation is authorized, violation of a term of probation supervision would result in the imposition of sanctions that, for serious violations, could include a

state prison term up to the maximum statutory sentence. (Sections 29,31,32,34)

A conviction for certain specified offenses would disqualify the defendant from eligibility for this alternative term of probation, a jail term, or a split sentence. Conviction of the new crime involving sale of a controlled substance to a minor would not qualify for alternative sentencing. A second felony drug offender could not receive an alternative sentence if he or she has a predicate felony conviction for a violent felony offense, for sale of a specified controlled substance to a minor, for the crime of possession of a weapon while selling or attempting to sell a controlled substance, or for anyone of a number of other specified crimes would disqualify the defendant from the opportunity to receive such an alternative (non-prison) sentence. (Sections 29,31)

The available maximum sentences for controlled substance crimes (e.g., PL 70.70, subds; 2a, 3b are unchanged by this bill. The legislation simply restores to judges the sentencing discretion judges formerly had: to impose a local jail sentence, probation or a split sentence on certain, specified class E, D, C or B drug offenders. Thus, for example, any defendant convicted for a first-time class B felony drug sale or possession crime could still be sentenced to up to 9 years in prison; any second time class B offender could be sentenced to up 12 years in prison; and any second time class B offender with a predicate violent felony conviction could be sentenced to up to 15 years in prison. The bill also does not change the court's existing authority to impose consecutive sentences. (Sections 29, 31)

In cases involving certain defendants charged with class B, C, D or E felony controlled substance offenses, the bill gives courts discretion to sentence the defendant to the existing in-prison "Shock Incarceration Program" operated by the Department of Correctional Services. The defendant would serve six months in this military-style boot camp prison. He or she would receive intensive, in-prison drug abuse treatment and then be mandated to participate in additional drug abuse treatment following release. (Sections 7,8,9,10,30)

The bill also gives courts the option to sentence certain persons convicted of specified class D, class C and class B non-violent offenses to the Department of Correctional Services Willard drug treatment program. This sentence would include at least 90 days imprisonment at the Department of Correctional Services Willard prison facility (located near Seneca, New York), followed by supervision by the Division of Parole and at least one year of post-release drug abuse treatment. (Section 18)

CASAT (Comprehensive Alcohol and Substance Abuse Treatment) is an in-prison drug and alcohol treatment program operated by the New York State Department of Correctional Services. DOCS may currently enroll an inmate in CASAT when the inmate is within two and a half years of parole-eligibility or his or her determinate sentencing release date. The bill would allow DOCS to enroll eligible inmates in CASAT who are within three and a half years of their scheduled release date. The bill also requires that alcohol and substance abuse counselors working in the state's prisons be trained and certified by the state Office of Alcoholism and Substance Abuse Services. (Sections 1-3)

The bill provides that the Department of Correctional Services shall develop transitional services at all appropriate department facilities, with the goal of facilitating the reentry of released prisoners and thereby reducing recidivism and crime. It requires the Department to assist prisoners unable to afford private insurance in efforts to continue receiving prescribed medications and, where necessary, enrolling in the Medicaid assistance program. (Section 5).

Unless determined to be inappropriate in an individual case, all persons on parole, probation, in prison, or on post-release supervision who have a documented history of substance abuse would be required to participate in least one year of substance abuse treatment. (Sections 25,33,34)

The bill authorizes judges to approve and/or recognize a defendant's participation in a pre-judgment diversion program. A "diversion program" is defined as an alcohol or substance abuse program approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate. Under current law, this same definition is used to define the type of post-sentence program a judge may order as a condition of probation. See CPL § 65.10(2)(e). Amendments to CPL §§ 170.40 and 210.40 emphasize and encourage the courts to consider using authority they already have: to dismiss a drug charge in the interest of justice when the defendant has successfully completed a diversion program. See generally People v; Jenkins, II N.Y.3d 282 (2008). (Sections 11, 13, 15)

Bill section nineteen authorizes persons convicted of certain class B controlled substance offenses to apply to the sentencing court for conversion of a pre-2005 indeterminate (parole-eligible) sentence to a new, fixed sentence consistent with the determinate sentencing grid that was enacted in 2004 and took effect January 13, 2005. Re-sentencing would not be considered for persons with certain disqualifications, such as any conviction for a violent felony offense or a felony sex offense. (Sections 19,23)

The bill enacts procedures authorizing a judge, on motion of the defendant with notice to the district attorney, to conditionally seal a first-time drug felony conviction and no more than three drug misdemeanor drug convictions if the defendant has remained crime-free for a specified period or has completed a court-ordered treatment program. Existing statutory requirements specifically barring individuals convicted of such crimes from certain types of employment or licensure would not be disturbed. (Section 21,22,23,24)

New and Modified Crimes and Increased Sentences for Certain Offenses

Major drug traffickers are subject to strict penalties by the creation of a new class A felony crime: "Trafficking Through a Controlled Substance Organization." The penalty for conviction of this "kingpin" crime is a mandatory indeterminate prison term of at least 15 years to life, and up to 30 years to life. (Sections 35, 42,43, 50)

The bill creates the new class B felony crime of "Criminal Sale of a Controlled Substance to a Child." This elevates penalties for the sale by an adult over age twenty-one of certain controlled substances to a person under sixteen years of age (whether on school grounds or not). The determinate prison sentence applicable to a class B felony noted above (up to 9, 12 or 15 years in prison) is mandatory for this crime. (Section 51)

The bill creates the new class C felony crime of "Criminal Possession of a Weapon While Selling or Attempting to Sell a Controlled Substance." This crime punishes a person who physically possesses a loaded firearm, machine gun or disguised gun while selling or attempting to sell a controlled substance. The crime is a violent felony offense subject to a mandatory, five-year minimum determinate sentence; the maximum term is up to fifteen years in prison. (Sections 36,37,51.)

One of the key features of New York's drug laws is that many of the most serious crimes are graded based on the weight of the substance possessed, transferred or sold. Knowledge of the weight involved is irrelevant. The initial 2004 drug law reform act increased the weight thresholds for certain of the most serious cocaine and heroin possession (class A-I and A-II) crimes. This bill in similar fashion increases the weight thresholds for the class A-I and A-II controlled substance crimes that were not adjusted in the 2004 law.

For example, unlawful possession of six hundred and twenty-five milligrams of a hallucinogen (PL § 220.18 5) is a class A-II felony, punishable by a determinate sentence of up to 10, 14 or 17 years. The bill raises the minimum weight threshold for this crime to one thousand, two hundred fifty milligrams, but retains the current maximum prison terms of 10, 14 or 17 years. The class A-I felony grade of this crime, PL § 220.21 (2), is punishable by up to 20, 24 or 30 years in prison.

Even after these changes, the weight thresholds for class A-I or A-II felony possession or sale and the associated mandatory determinate sentences in New York would continue to be relatively low: all such class A-I and A-II quantities would remain small enough to fit in a person's pocket, handbag or purse. (Sections 44-45, 47-48)

The bill eliminates parole eligibility for persons convicted of the class B felony of Conspiracy in the Second Degree (PL 105. I 5) where the crime that was the object of the conspiracy was a controlled substance offense. Upon conviction, the person could be sentenced to a determinate term, as noted above, of up to 9, 12 or 15 years in state prison. (Section 38)

Quantifying Cost Savings: Developing Resources to Reduce Recidivism

The bill authorizes the State Comptroller to certify, on an annual basis, the monetary savings resulting from decreases in inmate admissions and length of stay generated by the enactment of the 2004 reform law, by the limited 2005 class A-II re-sentencing law and by this bill. These funds would then be designated to fund drug treatment, criminal justice and school drug prevention programs as specified in the bill. (Sections 56-57.)

The bill also sets forth and establishes a pilot "Combined Law Enforcement and Community Strategy Targeting Street-level Drug Crime Program." Designed to work in partnership with law enforcement and local social services agencies, the bill directs the use of intelligence gathering, community relations strategies and advanced crime mapping techniques (many of which are already available and in use in the state) to target criminal justice resources (including prosecutorial resources) toward high drug crime areas. The program will also promote alternatives to unlawful activity in an effort to reduce recidivism and help assure public safety in these communities (Section 26.)

Justification

New York has achieved great success in reducing the crime rate in recent years, in part, by targeting heightened penalties on violent felons. To achieve further dramatic success in reducing crime, our state must make a concerted effort to eliminate the substance abuse which lies at the core of most criminal behavior. Expanding the number of nonviolent drug offenders that can be court ordered to drug abuse treatment will help break the cycle of drug use and crime and make our streets, homes and communities safer. This will make New York's criminal justice policies not only tough -- but smart.

In 1993, the Assembly held hearings to mark the 20th Anniversary of the Rockefeller Drug Laws and examine whether the mandatory incarceration required by the laws had been effective at reducing drug use and drug-related crime. The overwhelming sentiment among the witnesses at the hearing was that the policy of incarceration and punishment of non-violent drug users had failed and that major reforms of the drug laws were urgently needed. Despite these calls for reform, the laws continued unchanged for 11 more years until 2004 when modest drug law reforms were enacted. However, the 2004 reforms did not change the mandatory sentencing structure and did nothing to return discretion to judges to allow for the diversion of non-violent drug offenders to a period of probation as an alternative to incarceration.

The Assembly again held extensive public hearings in May, 2008, and sought testimony from a broad range of witnesses to examine whether the mandatory sentencing provisions of the Rockefeller Drug Laws have been successful. Once again, the vast majority of witnesses presented evidence demonstrating that the Rockefeller Drug Laws have failed to deter drug use or drug-related crime in New York. Rather, the laws have sent thousands of low-level drug offenders to state prison at great fiscal cost to New York while offering little or no public safety benefit. According to the Correctional Association, about 40% of the drug offenders in New York State prisons, more than 5,300 people, are imprisoned for drug possession, as opposed to drug selling. And, of all drug offenders sent to prison since 1999, 80% have never been convicted of a violent felony.

Despite the harsh mandatory sentences required by the drug laws, the overwhelming number of people sent to state prison continue to suffer from unaddressed substance abuse issues. For example, according to the 2007 Identified Substance Abusers Report, produced by the Department of Correctional Services, 83% of inmates in state prison had an identified substance abuse need including 82% of male inmates and 88% of female inmates. Similarly, at every stage of the criminal justice system from attest, through trial, incarceration, and parole, 70 to 80 percent of the people involved have a history of alcohol or drug use and the Office of Alcoholism and Substance Abuse Services reports that 1.8 million New Yorkers are currently dealing with substance abuse problems. Additionally, according to the National Household Survey on Drug Use conducted by the U.S. Department of Health, illicit drug use among New Yorkers has not abated since the passage of the Rockefeller Drug Laws in 1973.

Numerous comprehensive studies indicate that drug abuse treatment is significantly more effective -- and cost effective -- than incarceration, as a means of reducing crimes committed by drug users. A 1997 Rand corporation study, for example, found that drug treatment was 15 times more effective at reducing serious crimes committed against people and property by drug offenders than mandatory minimum sentences. The Honorable Jonathan Lippman, in testimony before the Legislature's budget committees, indicated that graduates of drug court diversion programs operated by the court system commit two-thirds fewer crimes than drug offenders who are simply incarcerated for a period of time. Similarly, the National Institute on Drug Abuse estimates that for every dollar spent on treatment programs, there is a $4 to $7 reduction in the cost of drug related crimes. With some outpatient programs, total savings can exceed costs by a ratio of 12 to 1. Further, a 2006 study by the Justice Policy Institute (JPI) demonstrated that reliance on treatment was associated with a decrease in crime. Specifically, the JPI report found that in eight out of twelve jurisdictions that made greater use of treatment, crime rates have fallen by 10% or more since 2 000 compared to just two of the twelve that relied more heavily on incarceration.

In addition, the drug laws have had a disproportionately negative impact on racial minorities, particularly African Americans and Latinos. African Americans and Latinos have consistently represented the overwhelming majority of people sent to prison under the drug laws. Specifically, as of January 1, 2008, approximately 90% of drug offenders in New York prisons were African-American or Latino - African-Americans comprise 58.5% of drug offenders in state prison; Latinos, 31.5% and whites, 8.9%. However, studies indicate that white persons use and sell drugs at the same, or at an even higher rate, than African American and Latino persons. A 2001 study by U.S. Department of Health and Human Services looked at 1.8 million adults in New York who reported using illegal drugs in the proceeding year. Of these reported users of illicit drugs, 1.3 million or 72% were white. Similarly, a 2004 federal report found that 8.1 percent of white persons use illicit drugs compared to 7.2 percent of Hispanic persons, and 8.7 percent of African American persons. Further, drug use rates among youth ages 12 to 17 are higher for whites than for African Americans and Latinos.

Further, research suggests that high incarceration rates in some urban areas have destabilized neighborhoods and exacerbated the problems of poverty, drug abuse, and the lack of fundamental supports for families and children causing crime rates to rise.

In December, 2004, legislation was enacted (L. 2004, c. 738) that changed, in part, the laws governing drug offender sentencing. New York's drug sentencing scheme was changed from an indeterminate sentencing system to a determinate sentencing system so that all drug offenders would be sentenced to a fixed term, rather than a parole-eligible sentencing range. The 2004 law generally lowered available sentences for non-violent drug offenders but increased sentencing ranges for drug offenders with a history of violent crimes.

In addition, the 2004 law allowed certain class A-I felony drug offenders to apply for re-sentencing under the new, determinate sentencing structure. The law also made it possible for certain inmates sentenced for drug offenses to earn additional time reductions by participating in drug abuse treatment and other prison programming, and authorized judges to direct that drug offense-sentenced inmates participate in prison based drug treatment programs. In August 2005, legislation was enacted (L. 2005, c. 643) to allow certain eligible class A-II felony drug offenders serving indeterminate sentences to apply for re-sentencing to a determinate term of imprisonment.

While the 2004 law was an important step forward in moderating some of the harshest sentences under the state's drug laws, it did not result in dramatically reforming the state's Rockefeller drug laws. Significantly, the 2004 law did not authorize judges to sentence nonviolent drug offenders to probation as a potential alternative to a mandatory state prison term; that vital reform, among others, would be enacted by this bill.

Expanding the availability of drug abuse treatment programs would save millions of taxpayer dollars, help many offenders turn their lives around and reduce crime. This bill reforms New York's drug sentencing laws by giving judges appropriate discretion to tailor the penalties of the Penal Law to the facts and circumstances of each drug offense. Long sentences would be retained for major drug traffickers, and, indeed would still be available for all drug offenders. However, judges would be given discretion to appropriately tailor a sentence to fit the conduct and rehabilitative efforts of each offender.

Thirty-five years of a drug policy focused on punishing drug users and spending billions of dollars on incarceration has failed to significantly reduce the use of drugs or the commission of drug-related crime. Instead, over the last three and a half decades, large numbers of drug abusers have been imprisoned, families and communities, particularly communities of color, have been harmed or destroyed, and billions of dollars have been devoted to incarceration while resources for prevention and treatment services have been drained.

The dramatic and comprehensive reforms proposed by this legislation, if fully enacted, would over time significantly reduce the number of New Yorkers abusing and addicted to controlled substances and the incidence of drug-related crimes.

Legislative history

New Legislation.

Fiscal implications

When fully implemented, it is estimated that reduced prison admissions and drug related crime reductions which would result from this bill would save the state tens of millions of dollars annually.

Effective date

On the 60th day, with provisions.