Resentencing after the "fall" of Rockefeller: the failure of the drug law reform acts of 2004 and 2005 to remedy the injustices of New York's Rockefeller Drug Laws and the compromise of 2009.

• Author: Mancuso, Peter A.

Insanity is doing the same thing, over and over again, but expecting different results.

--Rita Mae Brown (2)

1. INTRODUCTION

   "Vice" is defined as "an evil, degrading, or immoral practice or habit." (3) With the proper treatment, however, habits may be broken. For thirty-six years New York's drug legislation attempted to break the habits of its constituents through the process of incarceration. This ideology resulted in thousands of disproportionate sentences for non-violent crimes. It all began in 1973 when Governor Nelson A. Rockefeller signed into law a large-scale drug reform. (4) The reform drastically changed the prior drug laws by systematically classifying illicit drugs into categories of varying offenses and punishment. (5) The signature of this reform was the mandatory maximum of life imprisonment required by the commission of a class A felony. (6) These draconian reforms became known around the nation as The Rockefeller Drug Laws. (7) Over the next three decades the prison population in New York State grew exponentially from ten thousand to seventy thousand inmates, with almost a third of those inmates incarcerated for drug offenses. (8) Although the penalties were steep, they did little to deter drug use and drug crimes. (9)

   By the early 2000s, it was clear that this method was unsuccessful and that reform was needed. (10) In 2004, Governor Pataki signed into legislation the Drug Law Reform Act ("DLRA") of 2004, which increased the quantity of drugs necessary to classify as a class A felony and decreased the prison terms for these crimes. (11) Most notably, no longer were life sentences available for any drug offense. (12) Recognizing the injustices produced by the Rockefeller Drug Laws, the 2004 DLRA provided for special retroactive relief that allowed inmates serving life sentences under the old laws for committing A-I felonies to petition the courts to be resentenced. (13) Soon thereafter, the 2005 DLRA was signed into legislation to extend resentencing to A-II felony offenders.In

   Although at first blush the DLRAs appeared to be ameliorative legislation that would rectify the injustices of the Rockefeller Drug Laws, the story was not so simple. Weaved into the language of the DLRAs were limitations, obstacles, and restrictions that made resentencing impossible to some inmates and burdensome to the rest. Moreover, the resentencing provision was the extent of the legislative "reform" to New York's harsh drug laws. Although the sentencing structure was revised, the reform of 2004 and 2005 did not attempt to change the philosophy used to battle the drug problem. Instead of finding solutions to prevent drug-related violence, the legislature continued to mask the problem behind bars and bricks. It was not until 2009 that a solution was finally proposed. The success of this solution, however, remains to be seen.

   Part II of this note provides an overview of the history and reforms of the New York State drug laws. Part III dissects the reforms of the DLRAs of 2004 and 2005 and shows why they failed to result in any meaningful change. Part IV explains the movement for further reform--from multiple vantage points--as well as the various proposals for a workable solution. Finally, Part V describes the legislative compromise that resulted in the DLRA of 2009 and assesses the likely effects of the recent revisions.

1. THE ROCKEFELLER DRUG LAWS

   1. The Governor's New Project

      Prior to 1965, the drug laws in New York State were confusing and unsystematic. (15) The sanctions for different drug offenses were found in completely different statutes of the former penal law, and separate crimes were attached to each drug classification. (16) In 1965, New York revised the drug laws by classifying all drugs under the term "controlled substances," and creating two basic offenses: criminal possession and criminal sale. (17) The new system defined each drug according to the public health law schedule (18) and punished the offense under the appropriate correction law provision. (19) The advantage to this system is that it allows flexibility with respect to subsequent legislation. (20) Instead of having to enact a new statute when a new substance is declared illegal, the definitions under the public health law can simply be expanded to encompass the new substance. (21)

      In 1973, Governor Rockefeller further revised this system in response to widespread concerns about problems of drug abuse; the system imposed tougher, more restrictive sentences upon conviction. (22) It appeared from the governor's rhetoric that the reform was not only a reaction to public concerns, but actually reflected his personal attitudes towards drugs. (23) In 1972, the governor urged all the nation's governors to "back an all-out effort to end drug abuse" and make a "national commitment" to resolve the drug problem. (24) By this time the governor had invested $750 million into drug control; he opined that drugs were going to destroy the nation, and suggested that the nation treat the war on drugs like the Manhattan Project of World War II. (25) Clearly the governor was not making idle threats, for the revisions to the penal law turned out to be some of the harshest sentencing schemes in our nation's history.

      The most notable change to the sentencing scheme was the expansion of the list of felonies that held indeterminate sentences of life imprisonment. Under the old system, felonies were classified as A, B, C, D and E; but under the new regime, A felonies were further broken down into three subcategories: A-I, A-II, and A-III. (26) Each class A felony held mandatory maximums of life imprisonment as well as mandatory minimums. (27) Due to the expansion of the A felony class, crimes that were previously punished relatively gently now came within the ambit of mandatory life sentences.

      Using narcotics (28) as an example, any sale (29) of the smallest amount is classified as an A-III felony. (30) Previously, this activity was classified as a C felony, (31) holding a determinate sentence of five to fifteen years with the possibility of probation. (32) Given the broad definition of "sale," almost any activity, including passing drugs around for communal use, could be classified in this category. Furthermore, possession of two ounces of narcotics or sale of one, became classified as an A-I felony; the most serious offense known under New York State law. (33) To put this drastic alteration in perspective, prior to the law change, only a sale of one pound or more of narcotics was classified as an A felony. (34) Narcotics were not the only drugs within the ambit of A felonies holding life sentences; the sale of minor amounts of hallucinogens, stimulants, LSD, and methamphetamines were now classified as A-III felonies. (35) The most remarkable alteration was that the possession of a small quantity of certain drugs, which formerly constituted a misdemeanor, was now classified as an A-III felony. (36) The ramifications of the revisions to the drug and sentencing laws were obvious and enormous. Low-level street dealers, addicts, and experimenters were now subject to potential life sentences if convicted.

   2. Judicial Review

      Although many contested that the harsh regime established under the Rockefeller Drug Laws constituted cruel and unusual punishment, the laws were upheld by both the New York Court of Appeals and the Second Circuity In People v. Broadie, (38) eight defendants who were sentenced to life terms for low-level drug offenses, challenged the sentencing scheme as so disproportionate as to constitute cruel and unusual punishment in violation of the New York Constitution. (39) The New York Court of Appeals articulated the standards by which to evaluate the disproportionally of punishment under the state constitution; (40) however the court failed actually to apply these standards, choosing instead to defer to the legislature. (41) Furthermore, if applied objectively, it is hard to believe that the court would have found the punishment to be proportional to the crime. For example, when discussing the third factor to be considered--comparison of the punishment for drug offenses to punishment for other crimes--the court recognized the severity of the laws by acknowledging that sale of one-eighth of an ounce of cocaine carried greater punishment than manslaughter, kidnapping, rape, robbery, or arson. (42) Nevertheless, the court deferred to the legislature and rationalized their decision based on what the legislature may have believed to be the reasons for enacting such strict sentences. (43)

      In Carmona v. Ward, (44) the Second Circuit reversed a decision by the Southern District of New York (45) which had granted habeas corpus relief to two women sentenced to life in prison for narcotics offenses. (46) In lockstep fashion, the court followed the reasoning of the New York Court of Appeals in Broadie, and deferred to the legislature's evaluation of the severity of drug offenses. (47) In a spirited dissent, however, Judge Oakes pointed to the disparity between drug offenses and violent crimes punished equally or less severely. (48) He exclaimed,

      [i]t is difficult to believe that the possession of an ounce of cocaine or a $20 'street sale' is a more dangerous or serious offense than the rape of a ten-year-old, the burning down of a building occupied by people, or the killing of another human being while intending to cause him serious injury. (49) There were some doubts as to whether the Rockefeller Drug Laws would pass the Supreme Court's rational basis review, but these doubts cast aside when the Supreme Court denied certiorari to review Carmona. (50)

2. THE PUSH FOR REFORM AND THE DRUG LAW REFORM ACTS

   1. Criticism and Scrutiny

      The academic criticism of the Rockefeller Drug Laws echoed Judge Oakes' dissent. Many critics condemned the laws as missing the key component of rational criminal legislation: that the punishment fit the crime. (51) Others have...