The New York Assembly Wednesday passed a bill that would repeal much of the state's draconian Rockefeller drug laws. Enacted in 1973 under Gov. Nelson Rockefeller (R), the laws are some of the toughest in the nation and have served as a model for "tough on crime" legislation across the country in the years since then.

June 2003 ''Countdown to Fairness'' rally against the Rockefeller drug laws, NYC (courtesy 15yearstolife.com)

By a vote of 96-46, the Assembly approved A 6085 , which restores judges' discretion in sentencing low level drug offenders by gutting provisions in the law that require prosecutors to approve a judge's decision to divert someone from prison to drug treatment. The bill would also expand the state's drug court system by authorizing one for each county in the state. The bill contains provisions denying probation or local jail sentences to adults selling drugs to minors, dealers who deal while armed, and "drug kingpins."

Now, all eyes turn to the state Senate, where an identical bill has been introduced. Complicating matters is that the New York State Sentencing Commission last month released its own, much less reformist recommendations, which are supposed to be Gov. David Paterson's (D) guide to reform legislation. The governor is not bound by the commission majority's recommendations, but it is not clear yet just what Paterson will do.

Thanks to the Rockefeller laws -- and despite reforms in 2004 and 2005 that had no impact on less serious offenders imprisoned under them -- nearly 12,000 people are currently behind bars for drugs in New York. Even after the 2004-2005 tinkering, the state prison system continues to be flooded with new Rockefeller law victims. More than 5,000 people were sent to prison for nonviolent drug offenses last year.

More than 42% of Rockefeller law prisoners -- more than 5,000 people -- are doing hard time for simple drug possession, many of them convicted of the lowest level drug felonies, which involve only small amounts of drugs. For instance, a half-gram of cocaine can earn a Class D felony charge. As of last month, 1,098 people were imprisoned for that offense.

The mass imprisonment of drug offenders comes at a substantial cost to Empire State taxpayers. According to the Correctional Association of New York, the state spends $525 million a year to incarcerate drug offenders and has spent $1.5 billion on building prisons to house them.

"More than 35 years after the Rockefeller drug laws were enacted, it is clear that these laws mandating imprisonment for even lower-level offenders have failed to effectively combat drug abuse or reduce the incidence of violent crime," said Assembly leader Rep. Sheldon Silver (D-Manhattan) before the vote Wednesday. "This legislation restores humanity to drug policy here in New York. It expands the sentencing options available to judges, without endangering the public. Judges are in the best position to know who is deserving of prison and who is not. State prison and mandatory prison sentences are not the magic bullets to address drug abuse and its attendant problems; restoring judicial discretion is the solution."

"These reforms are long overdue," said Rep. Jeffrion Aubrey (D-Queens), the primary sponsor of the bill. "This legislation provides for a more sensible, comprehensive and cost-effective approach for dealing with lower-level drug offenders and addicts. Think of all the resources that have been spent on locking-up nonviolent drug offenders that could have been invested in the education, rehabilitation and job training that can save lives. Treatment programs in New York City have a ten percent recidivism rate for participants one year after completion, compared to 60 to 70% for those not in programs. Treatment works."

Activists who have spent years trying to make the legislature pay heed to calls for Rockefeller law reform -- or outright repeal -- pronounced themselves pleased with the Assembly vote. But while there was agreement that the bill contained significant reforms, some said it did not go far enough.

"With everyone from the Sentencing Commission to the governor talking about reforming the Rockefeller drug laws, it's critical to examine any proposal and make sure it constitutes real reform," said Gabriel Sayegh, project director with the Drug Policy Alliance. "To be real, meaningful reform, any proposal must include restoration of judicial discretion in drug cases; expansion of alternative-to-incarceration programs and community based drug treatment; fair and equitable sentencing reforms; and retroactive sentencing relief for people serving unjust sentences under the Rockefeller drug laws. The Assembly has included these provisions, and their proposal constitutes real reform."

"New York State is closer to justice today than we were yesterday," said Donna Lieberman, executive director of the New York Civil Liberties Union. "By passing this bill, our state's Assembly is letting go of 36 years of failure and moving toward meaningful reform of the Rockefeller drug laws."

"The Rockefeller drug laws have failed by every measure -- cost, drug use, public safety," added the group's legislative director, Robert Perry. "With the passage of Jeff Aubrey's bill, the Assembly has acted on Governor Paterson's directive to fundamentally reform the state's failed drug policy. The bill shifts the paradigm, away from mass incarceration and toward a public health model."

But the NYCLU also said that "in certain essential respects, the Assembly proposal does not fully realize the reform principles on which the legislation is based." It listed several examples:

The bill leaves in place a sentencing scheme that permits unreasonably harsh maximum sentences for low-level, nonviolent drug offenses;

The bill disqualifies from eligibility for treatment and rehabilitation individuals who may be most in need of such programs; and

The bill creates an unnecessarily burdensome procedure for sealing a criminal record after someone has completed a substance abuse program.

"This is an essential first step, but we encourage Governor Paterson and the state Senate to authorize judicial discretion to divert individuals from prison in all appropriate cases; to expand and improve the quality of alternative to incarceration programs; and to provide long-sought justice to the thousands of families that have been torn apart by the Rockefeller drug laws," Lieberman said.

Randy Credico of the William Moses Kunstler Fund for Racial Justice, which has been part of the Rockefeller reform movement for years, offered a more radical critique. "It's not just the Rockefeller drug laws -- we need to completely overhaul the criminal justice system, from sentencing to the appointment of judges to judge-shopping by prosecutors to racial profiling to banning stop and frisk searches. People need to focus on the overall criminal justice system, or just as many people will be going to prison as we have now," he told the Chronicle last month.

But right now, the focus is on getting Rockefeller reform legislation to the governor's desk. DPA's Sayegh said there were good signs in the Senate. "The Senate bill introduced by Sen. Eric Schneiderman (D-Bronx) is the same bill as was introduced in the Assembly," he pointed out. "We're very hopeful about that."

But Sayegh worried about what Gov. Paterson will propose. "The governor has apparently distributed a proposal to legislative leaders that has not been made public," he said. "We hope it is not a cut and paste from the Sentencing Commission, given that its recommendations do not constitute real reform."

Still, Sayegh predicted fast action in Albany. "This is moving along quickly. We think we may see a negotiated Senate bill within a week or two," he said. "Given the fiscal crisis we're facing, these reforms will save the state millions and millions of dollars. The time is right."

If and when substantial repeal of the Rockefeller drug laws is passed, then perhaps people will start asking why and whether drug users and sellers should be arrested in the first place absent harm to others. Drug treatment and drug courts may be an improvement over years in prison, but in a society that treated its citizens as adults, such authoritarian institutions would be reserved for people who have demonstrated their drug use is harming others.