Elaine Bartlett was a 26-year-old mother of four living in East Harlem when she was sentenced to 20-to-life for selling four ounces of cocaine to an informant. It was her first offense; the same transaction sent the father of her two daughters to prison for 25-to-life. The couple had no previous involvement with the drug trade and had no idea that their crime could result in such severe punishment.
Jan Warren was single, pregnant and desperate for money when her cousin asked her to carry nearly eight ounces of cocaine from Newark, New Jersey to Rochester. She had no prior arrests. The judge said the fact that New York state law mandated a fifteen-to-life sentence for the offense was "a travesty" of justice and that he didn't want to pronounce the required sentence.
Unlike Bartlett and Warren, Arthur Beaty was addicted to drugs when he ran afoul of New York's tough drug laws. A married father of two with no prior arrests, he was sentenced to fifteen-to-life for selling 4.5 ounces of cocaine to an undercover police officer.
Though Bartlett has been freed by a rare clemency decision by Governor Pataki, the others remain in prison. Now, however, for the first time in decades, they have hope. This year may offer the best chance to change New York State's draconian drug laws -- but advocates fear that proposals for change that don't go far enough could derail real reform.
The drug statutes, known as the Rockefeller laws, were passed in 1973. Then-New York State Governor Nelson Rockefeller was preparing to run for higher office and wanted to burnish his tough-on-crime credentials. He had previously tried addressing New York's heroin problem by expanding treatment, but drug use only continued to increase. And so he proposed life sentences without parole, no plea bargaining and no exceptions for anyone caught dealing drugs.
His aides pleaded that this was unworkable, that it would flood prisons, clog courts and probably wouldn't even solve the problem. He compromised. Instead of life without parole, there would be a 15-to-life mandatory minimum for possession of more than four or sale of more than two ounces of cocaine or heroin. Lesser weights would result in lighter sentences. But second offenses on these crimes would result in sentences of 8 1/3 to 25 years.
The Rockefeller drug laws-- now 28 years old-- are amongst the toughest in the country. They failed to prevent New York City from becoming the epicenter of the American crack epidemic in the early 90's when drug use, drug trafficking and violent crime rates reached record levels. Twenty-one thousand prisoners are currently incarcerated under Rockefeller law provisions, more than half of them non-violent. A mind-boggling 94 percent are black or Latino according to statistics compiled by the New York City Legal Aid Society, despite the fact that most of New York states drug dealers and users are white.
In fact, the statutes initially included lengthy sentences for possession and sales of marijuana, but these were repealed in 1979 after an outcry from white middle class parents who found that their sons and daughters were facing long stretches of incarceration.
For the first time, this year Governor Pataki is proposing significant reforms. He has advocated reducing the mandatory 15-to-life sentence for what are called A1 felonies to 10-to-life, which could be lowered to 8 and 1/3 to life on appeal. He would allow diversion of second felony offenders for lesser drug crimes to treatment with permission from the prosecutor. And, the changes would be retroactive, so people who have already served long sentences could be eligible for early release.
But will these changes actually make it through the legislature-- and do they go far enough?
State Assemblyman Jeffrion Aubrey, who chairs the Assembly's Corrections Committee, has sought to change these laws for years. He sees the governor's plan as a good starting point for negotiations, but adds, "There's still far too little judicial discretion, it doesn't reduce sentences far enough and it hasn't provided a sufficient budget for drug treatment."
Aubrey does believe, however, that the laws will be changed this year and that this is the best opportunity reformers have ever had to make a significant difference. "Logic would seem to indicate that this is a one-shot deal." he says, "No one has a crystal ball to say that, but it is such a politically volatile issue and usually in those cases, you have just one shot at the apple."
He adds, "Given the momentum of public opinion, we need to maximize this opportunity to ensure that the changes are adequate."
While Democrats have long advocated reform, Assembly Speaker Sheldon Silver has frequently tabled it, as a way to try to ensure re-election for upstate Democrats whom he believed couldn't afford to be seen as soft on crime. Governor Pataki had advocated a reform plan in 1999, but it was limited to sentence reduction only on appeal and linked to the elimination of parole for all felons, which was something Democrats refused to support.
Current supporters of ending the Rockefeller drug laws include everyone from the Catholic church (Cardinal O'Connor spoke out against the laws just before he died) to hard-line former drug czar Barry McCaffrey, the Legal Aid Society, the ACLU, the NAACP, Al Sharpton, Human Rights Watch, the Correctional Association and drug policy reform organizations like the Lindesmith Center and the William Moses Kunstler Fund for Racial Justice. New York State's highest court, the Court of Appeals, as well as many other judges have expressed grave reservations about the fairness of the laws. Public opinion polls also show support for reform. According to a Quinnipiac College poll, 69 percent support judicial discretion rather than mandatory sentences for drug offenders.
But the Rockefeller laws have become one of many "Nixon goes to China" issues in politics where only Republicans have the tough-on-crime credentials to make changes typically favored by liberals. Republican Senate Majority Leader Joseph Bruno has expressed support for repealing Rockefeller as has John Dunne, a former Republican State Senator who helped write the laws and who also served as Assistant Attorney General for Human Rights under President George Bush.
As a result, Robert Gangi, Executive Director of the Correctional Association of New York and a long-time advocate for change, believes that the chances for significant reform are high. He cautions that there is a danger that only "cosmetic" reforms will be passed, and that this could set back real change indefinitely. "That's why we're holding a major rally on March 27th in Albany called "Drop the Rock.'" he said.
The only support for keeping the laws comes from the powerful District Attorney's Association. "We don't support reduction in sentencing," says Robert Carney, President of the association. "If you take the minimum away, it removes the leverage that prosecutors have to obtain pleas and information about drug trafficking networks. We've solved murder cases using these laws."
Aubrey, for his part, doesn't buy it. "Their opposition to judges having discretion is troubling to the very concept of how justice is supposed to be applied." he says. "We keep moving away from judges as judges"
Supreme Court Justice Leslie Crocker Snyder has presided over a special court to prosecute major narcotics cases, and as a former prosecutor and possible candidate to succeed Manhattan DA Robert Morgenthau, she tends to take tough positions on crime. She is known on the street as "the Dragon Lady" because of the lengthy sentences she imposes. But even she supports overturning Rockefeller. "I'm more suspicious of total discretion for judges than most and I still believe strongly in law enforcement," she says, "but more emphasis is needed on treatment."
Though complete elimination of mandatory sentences -- which is what most advocates would like to see -- is unlikely, most Albany observers believe that the governor's proposal leaves room for negotiation and could lead to significant improvements. Assembly Speaker Sheldon Silver will make the next move -- choosing which changes to fight for, and which to concede. Advocates hope that this time, the horror stories of first-time, non-violent offenders spending lifetimes away from their families -- not to mention the huge financial costs and lack of impact on addiction -- will be heard and remedied.
The sad saga of the Amadou Diallo case in the American criminal justice system has come to an end with the Jan. 31 announcement by the Justice Department that it would not prosecute the four New York City police officers who had shot and killed the young West African immigrant in February 1999.
Familiar as they are, the facts of the case and its journey are worth recalling. On the evening of Feb. 4, 1999, four white plainclothes officers from the Police Department's Street Crime Unit were investigating a rape in the Bronx. Seeing the 22-year-old Diallo standing in front of what turned out to be his Bronx home, the cops mistook a wallet he was holding for a gun, and fired 41 shots. Diallo was hit by 19 bullets, and killed.
The next day the Reverend Al Sharpton called the shooting "a police slaughter." Nearly simultaneously, U.S. Attorney Mary Jo White said her office would investigate the case, along with the Bronx district attorney, Robert Johnson. On Feb. 16, 1999, D.A. Johnson convened a grand jury to begin hearing evidence.
Demonstrations erupted throughout the city, the largest probably being the March 3 rally on Wall Street demanding the indictment of the officers. Six days later, twelve protestors outside police headquarters were charged with disorderly conduct. Rallies seemed to happen almost daily. More than 1200 people were arrested, including actors Susan Sarandon, Ossie Davis, and Ruby Dee, and politicians including Congressman Charles Rangel and former Mayor David Dinkins.
Looking bellicose but using conciliatory words, Police Commissioner Howard Safir announced on March 26 that he would modify the Street Crime Unit, requiring officers to wear uniforms.
On March 30, several hundred police officers demonstrated in support of the four cops--who were indicted the next day for second-degree murder. The four officers entered pleas of innocence.
Citing pretrial publicity and suggesting that a fair trial could not be held in the Bronx, a state appeals court ruled on Dec. 16 that the trial should be moved to Albany.
On Feb. 1, 2000, the jury was seated. Four jurors were black, as was the forewoman, who once lived in the Bronx. All four officers were acquitted of all charges on Feb. 25. Almost immediately U.S. Attorney Mary Jo White in Manhattan and the Justice Department in Washington announced that federal prosecutors would review evidence for civil rights violations.
One day short of a year later, the Justice Department announced that its civil rights investigation had concluded that no federal charges were warranted.
The Diallo family still has a $81 million civil suit, its last legal recourse, against the city and the four officers.
Several hundred mourners gathered on Feb. 5 outside Diallo's Bronx building to mark the second anniversary of his death. Otherwise things have been very quiet.
What are we to learn from this terrible saga? Should the trial have been conducted in the Bronx, where the killing occurred? Should federal prosecutors have taken the case? Should the family persist in a civil suit? In sum, what recourse is there to a family whose beloved and unquestionably unarmed son was gunned down by New York City officers standing on his own street, in front of his own home--where he had every right to be? Do the procedures and prerogatives of our justice system yield justice, and if not, what should be done?
At the time of the indictment, many--perhaps most--legal observers thought the officers would follow the usual practice of police officers accused of capital crimes and request a trial by judge rather than by jury. (Technically the defendants "waive" their right to a jury trial and "consent" to a bench trial.) This is a defendant's right under New York law--although it is an unusual and controversial one which should, in my opinion, be reexamined by New Yorkers and their legislators. Prior to the officers in the Diallo case, only one police officer charged in the Bronx with a civilian death had chosen a jury trial since 1977.
Instead, the defense attorneys for the officers took a different route. They argued that pretrial publicity and protests had made it impossible to find impartial jurors in New York City. The appeals court agreed, and moved the trial 140 miles north to Albany. The result was an outcry on the part of New Yorkers throughout the five boroughs.
From both a constitutional and a political point of view, moving the jury trial from the Bronx was unfortunate. The founders of this nation saw the jury as both a needed protection for individual rights and a means of ensuring communal support for judicial procedures. The judicial system cannot function fairly or efficiently without communal support. Just as elections are the central means by which the people participate in the legislative and executive branches, so juries are the central means by which the people participate in the judiciary.
Even more important, the jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings--and not just any community. The U.S. Constitution is specific. The Sixth Amendment guarantees that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." In this language, as well as in American tradition, the district in which the crime was committed has been as important as the state. A jury trial is the right of every American--and the right of every American community, including the Bronx.
Federal prosecutors spoke up so quickly after the not-guilty verdict that many New Yorkers concluded that a federal prosecution would follow. In fact, this was never a strong possibility.
A dual federal prosecution--familiar to much of the country because of several notorious trials, including the police beating of Rodney King in Los Angeles--is based on the constitutional reality of dual sovereignty, which says the federal government and state governments are independent sovereigns.
This constitutional reality is backed up by a piece of Reconstruction-era legislation that authorizes federal prosecution of criminal cases in which a state refused to prosecute public officials, including cops. The Ku Klux Klan Act of 1871 was passed after the Memphis riot of 1866, when policemen went untried and unpunished for beating and killing black people. Federal law was extended to cover private citizens as well as public officials after the murder of three civil rights workers in Mississippi in 1964.
Until recently, the feds have been very cautious about undertaking dual prosecutions. Following what is known as the Petite Policy, named for the 1960 Supreme Court decision that laid out the groundwork, they will prosecute only after state proceedings have failed to "vindicate vital federal interests."
To intervene, the Justice Department must show a substantial federal interest. Prosecutions against the mob or corrupt state officials are good examples, as are the 1964 "Mississippi Burning" cases.
In addition, the state prosecution must have left the federal interest "demonstrably unvindicated." In other words, if a conviction failed because of incompetent state prosecution or the jury's disregard of evidence, the feds can enter.
None of that applies in Diallo. No serious observer doubts the integrity of the jury, the efficient, fair character of the trial itself or the essential competence of the Bronx district attorney.
Finally, the feds must believe that the defendants' conduct constituted a federal offense and that the evidence will be sufficient to obtain a conviction. But the problem for them in Diallo is the same that faced the state and D.A. Johnson: proving intent on the part of the four police officers. This probably could not be done, and the federal prosecutors withdrew.
No. This means the end of the line within the criminal justice system, but we have another system altogether--the civil justice system. Simply because a defendant has been found not guilty in criminal court does not free the defendant from potential civil damages.
Nor are civil suits thwarted by the double jeopardy clause of the Fifth Amendment, which protects citizens only against a second trial by the government, not by fellow citizens.
Because civil suits have a far lower evidentiary standard-- preponderance of evidence rather than beyond reasonable doubt-- they are often won after a criminal case has been lost. The most famous recent example: O.J. Simpson.
The four officers were found not guilty of murdering Diallo by a criminal jury. Whether they caused his wrongful death remains to be determined by a civil jury.
Whatever happens with the civil case, Amadou Diallo does leave an important legacy for New York--and that is greater public and federal scrutiny of the police and revised procedures instituted by newly appointed Commissioner Bernard Kerik.
A few weeks after Amadou Diallo's death, a federal investigation began of the Street Crime Unit's aggressive tactics. The unit's supporters said that it had swept thousands of guns off the street and reduced violent crime in Northern Manhattan and the Bronx. But U.S. Attorney Mary Jo White's office demurred. Under civil rights legislation that had been passed in 1994 after the videotaped beating of Rodney King by Los Angeles police officers, White's staff investigated whether New York officers had systematically deprived blacks and Hispanics of their rights by stopping them based on their race.
The city voluntarily turned over its databases holding stop-and-frisk data, plus arrest and complaint information, from 1994 through the first three months of 1999. But it withheld more recent data, preventing investigators from assessing the many changes in procedures introduced by the police department since the Diallo shooting.
The Police Department, for example, began using new stop-and-frisk forms last fall that required more detailed explanations for stopping or searching anyone on the street. While the forms are generally being applauded, the department refused to release the data from the new forms.
Under federal law, federal prosecutors must negotiate with the police department before bringing suit to force changes. The city's tactic may be to withhold data until it has a cue from the new Republican administration in Washington of how a newly constituted Justice Department will regard such suits.
In a move reminiscent of Nixon's going to China, Mayor Giuliani announced on his radio show late in January that police officers accused of misconduct would no longer be prosecuted by the Police Department. Instead, accused officers would be charged and prosecuted by the Civilian Complaint Review Board, the independent agency that now evaluates civilian complaints of abuse. (By "abuse" the board means such things as excessive force, discourtesy, offensive language or abuse of authority. The board does not usually handle criminal matters.)
Noting that the mayor had been one of the harshest critics of civilian oversight of the police, the New York Times called this a "major turnaround." (In his 1992 mayoral campaign, Giuliani had opposed the board's creation.)
Almost no one had been happy with the previous system by which the review board investigated cases, but then referred them to the police department for prosecution. Critics of the police argued that far too many legitimate cases simply languished after referral. Under the new system, the board will investigate and prosecute, but the police commissioner will retain discretion on punishment, which can range from a loss of vacation days to firing.
The commissioner has promised to release an official plan in early spring.
Commissioner Kerik has also announced--and then followed through on--a new policy of encouraging his commanders to attend important community board meetings. Commanders (many newly appointed) all over the city have startled community activists by appearing in their midst, signaling "a police-community warmth that we haven't seen since the early days of the Lindsay administration," says a member of the West Side's Community Board 7.
And while the Police Department is stalling federal prosecutors on the data they want, it is also presenting a data-friendly face to the general public. The department has started posting crime figures for each of the city's 76 police precincts on both the department's and the city's official websites.
The statistics are now posted for most precincts. In late March, the commissioner hopes to post precinct maps showing where crimes are being committed.
Perhaps the Lindsay Administration analogy has some merit. Mayor Lindsay tried decentralizing the police and (unsuccessfully) making police precincts coterminous with natural neighborhood boundaries. Commissioner Kerik is going one better: having commanders introduce themselves to their neighborhoods and giving neighborhoods the data to evaluate just how well those commanders are doing.
Finally, in releasing his semiannul management report, Mayor Giuliani noted that the number of police officers firing their guns had declined to 174 in 2000, down from 194 in 1999, the year Amadou Diallo was killed. In fact, the number of police shootings had been declining--and declining substantially--for most of the Giuliani administration. This is to be applauded, as is the city's 2.8 percent decrease in what are called index crimes--murder, rape, robbery, and car theft.
In his remarks, however, the mayor said nothing of Amadou Diallo-who nonetheless remains in the thoughts of many New Yorkers during this February, the second anniversary of his death.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
A new statewide law, the Safe Schools Against Violence in Education Law will take effect. Though it is credited with being the most aggressive legislation of its kind in the country, violence in New York schools remains an issue. In recent months, the Governor's Task Force on School Violence has examined the issue of teacher and student safety in depth. Former teacher and Lt. Governor Mary Donohue concluded, "It's not the schools' fault," during a forum at Southside Elementary School on implementing the new law designed to make schools "safe havens for learning."
Much of the law focuses on empowering teachers and schools to combat violence. Districts must develop plans and disciplinary actions for dealing with threats and incidents of violence. Teachers will now have the ability to remove disruptive students, and principals and superintendents have the right to suspend students for up to five days. (Suspension was formerly the domain of the Board of Education, which had to allow administrators the power.) All students will now receive instruction on civility, citizenship and character. And a new statewide system to report acts of violence will be put in place.
There are some more controversial aspects, however. The law will also require all new school employees to be fingerprinted and undergo a police records check, and cost the employee $74. Moreover, the courts will be required to report students' convictions.
Former Commissioner Howard Safir is still costing the city money. Though he stepped down as Commissioner three months ago, the city continues to foot the bill for his security detail. Though the NYPD would not reveal how many officers were assigned to Mr. Safir, the NY Post reported the number to be as high as 13. Safir now works for a corporate investigations firm, ChoicePoint Inc. The Mayor, Commissioner Bernard Kerik and former NYPD commissioner Robert Kelly asserted that such security was standard practice. Former Commissioner Bratton, credited with making New York the safest large city in the nation, commented that he never felt the need for additional security.
Jessica Green is a student of public policy at Columbia University's Graduate School of International and Public Affairs.