Thirty-five years ago, New York engaged in an experiment that, at the time, seemed as if it held promise to stop the scourge of drugs that swept New York.  Gov. Nelson Rockefeller, who was a forward thinker, accepted the notion that by putting into place Draconian penalties for the sale and possession of drugs, and removing discretion from the hands of judges so that the criminals would know with certainty that they were going down hard, he could stem the tide.

As noted in this Newsday editorial, we are now 35 years into this experiment.  While we all knew that it was a failure decades ago, it remains the core of New York penal law.

Thirty-five years ago today, Gov. Nelson Rockefeller signed the drug laws that bear his name, setting the state on a course of costly and ineffective mandatory prison time for non-violent drug offenders. Since then, the war on drugs has waxed and waned, the crack epidemic has come and gone, crime has soared and subsided, and through it all Rockefeller’s laws have endured. It’s time for a change.

Newsday is wrong.  It’s way past time for a change.  The theory behind the Rocky Laws was proven flawed long ago, as people continued to use and sell drugs despite the shockingly harsh penalties.  There have been some recent legislative tweaks of late, but the basic application remains. 

Sell 2 ounces of a narcotic drug and receive a sentence of 15 to 25 years in prison.  Possess 4 ounces and get the same.  How many people out there realize how little 2 ounces really is?  Or 4 ounces?  Could you tell if you held in your hand?  Yet these weights are sufficient to result in the same sentence as murder. 

While the changes have given rise to some escape valves in the law, and changes in the sentencing scheme of late, it’s nothing more than a palliative.  The guys in Albany can pat themselves on the back for having “reformed” the law when they’ve done remarkably little to fix a problem.  Criminal defense lawyers know it.  Judges know it.  Corrections officials know it.  Prosecutors?  I have no idea what they know, but I think they might know it too.

The cost – $430 million all in – would be worth bearing if incarceration were the best way to protect the public and turn drug abusers around. It isn’t. Treatment is more effective and costs less – $17,000 to $21,000 per person, per year, for residential programs, and $2,700 to $4,500 for outpatient care, according to the Correctional Association of New York.

Eliminating mandatory sentences wouldn’t mean eliminating prison time for all drug offenders. Judges would be able to sentence people based on their individual crimes and circumstances. Costly prison cells could be reserved for serious drug offenders, rather than their girlfriends or gofers.

Now that we are in  a recession hard times, cost of incarceration has begun to overtake the zeal to incarcerate.  Of course, the “cost” is not merely the amount the taxpayers contribute to the warehousing of people for long, long periods of time, but the opportunity costs of that money to society, the cost to families of the incarcerated and the cost to society of these people when released from decades in prison. 

More to the point, the concept of sure and harsh incarceration defies the legitimate purposes of sentencing, and reduces the integrity of criminal justice to a nullity.  There is no rational basis to contend that a mule carrying a kilo of coke to make $500 to feed her children requires a 15 year sentence as a deterrent.  Want a deterrent?  Educate her so she can get a job and feed her kids.  Or better yet, educate her so that she doesn’t have kids when she’s a 17 year old child herself.

Despite 35 years of proof that the underlying idea behind the Rockefeller Drug Laws is a failure, there is no groundswell of support for scrapping them in Albany.  To do so would make legislators look weak on crime, and we still haven’t gotten past the political benefit of appearing tough.  The contrary position, being smart on crime, is too difficult a sell, unless a concerted effort is made by politicians to change the political atmosphere. 

So 35 years later, we’re still grasping the same failed concept, politics over reason.  That’s a pretty pathetic birthday present from Albany to the people of the State of New York.