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Beyond Rockefeller

BY: STEVEN McCANN

It was one of those victories that grassroots advocates sometimes never get to see: a repeal of legislation. To bring about this year’s reform of the Rockefeller Drug Laws, it took decades of organized criticism, lobbying, lawsuits, and the rise of a sympathetic governor who once got himself arrested protesting the very existence of the drug policy. So when the reforms were reached this past spring, the celebration spread wide. In October the long awaited reforms to the Rockefeller Drug Laws went into effect. Now the waiting game begins to see if anyone will notice.

While the 2009 modifications of the Rockefeller Drug Laws removed mandatory sentencing in some situations, many involved in the fight for reform argue that the changes that have been instituted are not enough to combat what they feel is the bigger problem: a justice system that does not treat all citizens equally. Which means that the hard fought fight might not make much real life difference.

“A lot of people are categorizing the reforms as repeal, which is false,” says Caitlin Dunklee, who works for Drop The Rock, a website set up to deal explicitly with Rockefeller reform by the Correctional Association, an advocacy group for criminal justice. “Although it’s a big step in the right direction, there are still some mandatory sentences that will lead to low level drug offenders being persecuted for being addicts.”

The Rockefeller Drug Laws were instituted in 1973 by Governor Nelson A. Rockefeller after a failed attempt at creating a voluntary rehabilitation program to deal with the growing heroin problem in New York City. The legislation gave non-violent drug offenders mandatory sentences of 15 years to life and in some cases 25 years to life. Though the laws were intended to single out traffickers and distributors, many of those imprisoned under the legislation ended up being low-level dealers and addicts. Advocates have fought to try and redress the Rockefeller Drug Laws virtually since their inception, but reform has been slow in coming. First, in 2004, sentencing for non-violent offenders was relaxed, and the weight threshold for more serious charges was increased, but mandatory sentencing remained. Then, in 2009, Governor Paterson signed into law new reforms which restored judicial discretion during sentencing for most drug possession crimes.

Despite the recent alterations to the New York drug laws, some advocates for reform, like Drop The Rock, are fighting for even greater repeals, turning the spotlight on unfairnesses they say continue to exist within the state drug legislation. Some argue that the problem is one that goes beyond mere legislation.

“Young blacks and Latinos are becoming hyper-criminalized” explained Harry Levine, a Professor of Sociology at Queens College and the co-author of Crack in America (University of California Press, 1997). “They’re being driven into the drug trade.” Levine argues that criminal justice in New York, and across many cities in America, has created a cycle of crime that has systematically indoctrinated young blacks and Latinos into a life of addiction and petty crime. He added: “This is happening, and white, middle-class America has no idea.”

For critics like Professor Levine, the Rockefeller Drug Laws are just a symptom of a much greater problem within criminal justice. Instead, he argues, modern policing techniques have created a racial disparity in the numbers of people being sent to prison for drug offenses.

There is plenty of crime data which support Levine’s argument. While 29 percent of cocaine users are black or Latino, they account for 91 percent of people incarcerated by the Rockefeller Drug Laws (66 percent of cocaine users are white), according to the New York State Criminal Justice Service. The disparity is not confined to the more serious sentences that the Rockefeller Laws address.

Since 1997 the number of marijuana arrests overall has skyrocketed in the wake of Giuliani’s policing reforms, resulting in the incarceration of blacks and Latinos at disproportionate rates. Those policing practices have continued under Bloomberg. In fact, the total number of people arrested for minor marijuana possession offenses between 1978 and 1995 (39,893) was less than the number arrested for the same crime in 2008 alone (40,383). From 1997 to 2008, 53 percent of those arrested for marijuana misdemeanors were black, despite the fact that they represent only 26 percent of New York City’s population. Latinos were responsible for 33 percent of marijuana arrests, while they account for 27 percent of the city’s population. Critics argue that such disproportionate marijuana arrest rates are a sign of flaws in the system since drug surveys show that whites use marijuana at a higher rate than blacks or Latinos.

“This can be traced back to a fundamental change in policing techniques that started in the early ‘90s,” says Levine. “When crime began to fall and the police had more free time, they began going out looking for crime pro-actively instead of responding to reported crime. It was a brilliant PR move; they invented a new type of policing and claimed it was responsible for the drop.”

This form of policing is known as “Fixing Broken Windows.” It was coined in 1982 by two academics, James Q. Wilson and George L. Kelling, who theorized that police officers could drastically reduce crime by targeting minor misdemeanors. By arresting vandals and prostitutes, Wilson and Kelling said police could create an environment that is inconducive to crime. Mayor Giuliani, a big fan of the theory, credited it with the drop in the city’s crime rates during his tenure. In 1993, shortly after being elected, he used the theory as the backbone for his Quality of Life policing campaign that helped define the NYPD during his time in office.

“Essentially when you have a justice department that’s demanding officers go out in search of arrests, that lends itself to policing which discriminates against people of color,” says Dunklee of Drop the Rock. “It’s more difficult to find and convict large drug cartels, so police officers are picking up addicts.”

Police departments that use Broken Windows style policing assign a greater number of officers to “high-crime neighborhoods,” which tend to be overwhelmingly black and Latino.
“This creates a heavy emphasis on restitution rather than rehabilitation,” says Robin McGinty, a counselor with Project Path to Recovery, an alternative to incarceration for women in New York. “The cycle of crime is self-perpetuating within impoverished neighborhoods when criminal justice focuses on incarceration.”

The office of the Deputy Commissioner of Public Information for the NYPD declined to comment for this story, although it generally ascribes any mention of quotas amongst rank and file officers to rumors and word of mouth.

Proponents of the Broken Windows method, such as conservative think-tank the Manhattan Institute (where George L. Kelling is now a Senior Fellow), believe that the primary purpose of law enforcement is not rehabilitation, but deterrence, and they point to studies which validate that argument. One such experiment by Kees Keizer at the University of Groningen showed that when an envelope with money in it is conspicuously placed in a mailbox, a passerby will steal the money 13 percent of the time, but when the mailbox is covered in graffiti, the money is stolen 27 percent of the time.

“African-Americans, Hispanics and Asian-Americans all favor quality-of-life enforcement even more strongly than whites,” wrote Kelling in a 2002 Op-Ed column in the New York Times that cited a poll by the Citizen’s Crime Commission. “On a scale of 1 to 20, with 20 representing the highest level of support, whites average a score of 14.6, while African-Americans averaged 15.3, Hispanics 15.2 and Asian-Americans 15.5.”

As the argument rages in academic institutions around the world, advocates who have made the case for more progressive attitudes in modern policing face an uphill battle. Despite 35 years of controversy, reform of the Rockefeller Drug Laws was passed only after the New York State Senate reclaimed a Democratic majority for the first time in more than four decades.

Some campaigners for reform argue that much of the Republican propensity towards incarceration may not be entirely based on social concerns but economic. “It’s interesting that resistance [to criminal justice reform] is strongest in the upstate areas,” says Dunklee. “All of the prisons are creating jobs up there and that’s where we’re finding the strongest hostility to reform.”

And given the current pink slip environment, such hostility could grow even stronger. In the meantime, even for those who may still be waiting (and fighting) for noticeable law enforcement change, the October enactment of the Rockefeller reforms offers hope.
“I began writing about reforming the mandatory sentencing for crack in 1986,” says Professor Levine. “In 2007, the Supreme court agreed with me. Things got so bad that even Scalia agreed with me. But it took 20 years. Do I think things will get better? Yes. Do I think it will happen any time soon? Probably not.”

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