Measuring culpability by measuring drugs? Three reasons to reevaluate the Rockefeller drug laws.

• Author: Herman, Susan N.
• Position: New York

The so-called Rockefeller drug laws,(1) enacted in 1973, have been New York's principal weapon in the war against drugs for the past three decades.

The statutory design, like the reasoning upon which it rests, is simple and straightforward. The legislature chose to impose lengthy and frequently mandatory sentences for possession and distribution of controlled substances, on the assumption that harsh and certain punishment would deter and reduce drug abuse and related crime.(2) Under this system, drug offenses are graded according to the dangerousness and the quantity of the drug involved.(3) Dangerousness of a drug is determined by consulting detailed schedules of controlled substances,(4) with the drugs considered most harmful listed in schedule I,(5) and those classified as the least harmful in schedule V.(6) Dangerousness is also evaluated by criteria described as objectively verifiable: potential for abuse, existence of approved medical uses, and safety.(7) Grading is according to the quantity of the drug involved: the greater the quantity, the greater the sentence. Possession of half an ounce of methamphetamine, for example, is a class C felony, punishable by a term of imprisonment up to fifteen years.(8) Possession of two or more ounces of methamphetamine, on the other hand, is a class A-II felony carrying a term of up to life imprisonment.(9)

As a result, the drug laws bear a strong resemblance to a chemistry manifesto. Elaborate tables and charts group drugs with jawbreaking polysyllabic names;(10) each new level of offense recites which drugs, in what quantity, will yield that provision's particular range of tough, frequently mandatory sentences,(11) The statutes look, literally, like a war against drugs. People who associate themselves with a particular quantity of a particular drug are punished on the theory that these punishments will prevent the drugs from doing harm.(12)

One key assumption upon which this statutory scheme is based is that there is a tight connection between drugs and harm and between the nature and quantity of a drug and the harm caused.(13) Some drugs--those "controlled" by the law--cause addiction, social harm (as drug abusers' lives fall apart), and incidental crime. Of these controlled substances, some are more addictive than others, cause more harm, and engender more crime, and therefore need to be contained by harsher sentences. The greater the quantity of drug possessed or distributed, the greater the harm unleashed, and the greater the punishment.

At the Albany Law School Symposium, District Attorney Bruno maintained that "The Rockefeller Drug Laws Fairly and Effectively Combat Drug Crime in New York State."(14) That result was certainly the hope of the 1973 legislature, and of the Temporary Commission which created the legislation's architecture.(15) The features of the drug laws just described were expected to deter and prevent drug abuse and related crimes, while the tight control of judicial discretion in sentencing was expected to produce fair and equal punishment.(16)

The arguments of three decades ago, explaining the basis of the choices made by these laws, sounded plausible in the Temporary Commission's report, and may still sound plausible to many people. However, after thirty years, we have little basis for evaluating the design of the Rockefeller drug laws, other than the same speculative reasoning and wishful thinking that led the Commission and the legislature to adopt this structure in the first place. The reasoning may not have been irrational, but was it right? The hope for fairness in application was sincere, but has it been borne out?

In the past thirty years, we have learned little to confirm the fairness or effectiveness of the New York drug laws' strategy.(17) We have, however, learned more about the nature of addiction and drug abuse in ways that should lead us to question some of the assumptions on which the Rockefeller drug laws rest.

There are three questions we should be asking:

1) Sentence Length. Is the assumption that the harsh sentences of the Rockefeller drug laws are effective in controlling drug abuse true? If we are not achieving the results we hoped for, should the lengths of the sentences in the overall scheme be modified? This discussion should include utilitarian questions--are the sentence lengths in fact having the deterrent effect expected? Are they worth their cost, in taxpayer dollars and impact on the lives of drug offenders and their families? Would an alternative strategy be more effective? The discussion should also include a normative question--are the sentence lengths prescribed truly proportional to culpability?

2) Legislative Control of Punishment Level. The statutes' creators assumed that reducing judicial discretion in sentencing, both through use of mandatory sentencing provisions and through prescribing as elements of each crime virtually all factors determining punishment level, would lead to fair and effective punishment.(18) Are these assumptions true? Do the statutes strike an appropriate balance between individualization of sentences and equal treatment? Should there be more (or less) judicial discretion in drug offense sentencing? Should sentencing be based on factors almost exclusively related to the offense, or should offender-related characteristics play more of a role?

3) Relative Culpability. Are drug offenses intelligently graded under the Rockefeller drug laws? Should the factors on which grading is based--drug and drug quantity--be virtually exclusive measures of culpability, as current law prescribes?

This question is inextricably linked to the previous question about the desirability of judicial discretion in sentencing. It is indeed rational to minimize judicial discretion in sentencing if the decisions upon which punishment is to be based are objective, offense-related factors--what quantity of which drug was involved in a possession or sale? Judicial discretion would become more appropriate, and indeed critical, if drug offenses were graded differently--for example, in a manner requiring assessment of the culpability of individual offenders.

1. SENTENCE LENGTH

   At the time New York's 1973 laws were passed, they were indeed the nation's toughest drug laws. Governor Rockefeller believed that drug pushers were responsible for increases in addiction and in non-drug crime, and declared that the threat of harsh sentences would "establish an effective deterrent to illegal drug use and drug-related crime."(19) His favored sentencing structure, in its magnitude and its rigidity, reflected the opinion of many respondents to contemporaneous polls that the harm caused by drugs was the most serious problem facing the nation.(20) Punishment of drug possession and distribution in New York is still severe.(21) Possession of half an ounce of methamphetamine, a class C felony,(22) is treated as the equivalent of third degree arson,(23) or second degree burglary.(24) Sale of two ounces of heroin, a class A-I felony, is treated as the equivalent of murder in the first degree.(25)

   There has been surprisingly little empirical research seeking to determine whether such heavy sentences have a deterrent effect on drug abuse or incidental crime.(26) An evaluation of the 1973 New York laws conducted several years after their enactment by a committee of the Association of the Bar of the City of New York and the Drug Abuse Council concluded that neither of Governor Rockefeller's objectives had been met: drug availability did not appear to have been reduced and crime went up, not down.(27) The Commission, however, hedged its conclusion that the drug laws had been a failure, noting that the laws had not yet been fully implemented.(28)

   The Commission had no doubt, on the other hand, that the Rockefeller drug laws were very expensive to implement.(29) If studies were to support the conclusion that these laws substantially deter or reduce harm, the lengthy sentences might be deemed worth both their cost to taxpayers and their cost to people convicted under the laws and their families.(30) If we have no reason to believe that imposing such high sentences accomplishes what the sentences were supposed to accomplish, why not reevaluate whether these laws are worth their costs? It is unclear whether the implementation of the drug laws has been effective, and the laws may actually have a negative impact; as Hippocrates said, "[f]irst, do no harm."(31)

   Doctor Steven Belenko's study(32) shows that we might be able to reduce drug abuse and crime more effectively by spending money on drug treatment in prisons, rather than simply on more incarceration. Why continue to impose and pay the price for heavy prison sentences on the untested assumption that this strategy will have an impact?(33) Why not first try to learn whether this strategy actually works?

   A related question is whether incarcerating people convicted of possessing or distributing relatively small quantities of drugs for such long periods of time is proportionate to the harm caused.(34) One way to flame this question is to ask whether an individual distributing two ounces of heroin is in fact as culpable as murdering someone. This is a difficult question to untangle, because the assumption of the drug laws is that if the quantity of heroin involved is large enough, many lives may indeed be forfeited. How is such "harm" or potential harm to be measured?

   One useful way to question the correlation of heavy sentences with possession or distribution of controlled substances is to focus on drugs that are available by prescription, and are therefore generally believed to be benign under some circumstances. Imagine the following scenario: Two college students are studying for final exams. Both have been diagnosed as suffering from Attention Deficit Disorder and both have prescriptions for Ritalin, an amphetamine currently believed to help many people to focus their attention...