Photo by: U.S. government

In 1973, New York Gov. Nelson Rockefeller signs the nation’s harshest drug laws, requiring prison time for almost all drug felons.

On May 8, 1973, Gov. Nelson Rockefeller signed into law what he called “the toughest antidrug program in the nation” and then congratulated himself and the legislators who stood fast “against this strange alliance of vested establishment interests, political opportunists and misguided soft-liners who joined forces and tried unsuccessfully to stop this program.” Pushed by reporters to identify this “strange alliance,” the governor included the state’s district attorneys and some police officials as having opposed the new laws.

Thirty-six years later, some of those onetime opponents are among the staunchest defenders of what’s left of the Rockefeller drug laws, which the state legislature and Gov. David Paterson reformed in early 2009 for the third time in five years.

The judges, district attorneys and law enforcement agencies aligned against Rockefeller in 1973 were concerned that his laws, which imposed harsh mandatory minimum sentences on drug offenders and limited plea bargains, would clog the court system and hamper efforts to turn small-time pushers against bigger narcotics traffickers. At the same time, the more traditional “soft-liners,” like the New York Civil Liberties Union, worried about the fairness of mandatory sentencing for most drug charges—especially the proposed life sentences for the most serious offenders, which, as a New York Times editorial pointed out, treated “a drug dealer more harshly than a murderer.”

The most draconian of the Rockefeller measures were removed in 2004 and 2005, when the legislature erased life sentences for nonviolent drug felons, reduced the minimum penalty for the most serious drug offenses and doubled the weight of drugs required to convict defendants of the top charges. The newest set of reforms, passed into law in March, will give judges in the state’s drug courts total discretion—in cases involving most felony drug charges—to place nonviolent defendants in court-approved treatment programs instead of prison as long as it is the defendant’s first or, in some cases, second offense. Offenders facing charges for property theft and other nonviolent crimes that are determined to have stemmed from their addictions are also eligible for diversion programs. Some people already in prison on drug charges can apply for new sentences under the reforms.

In the past, the prosecutors’ offices alone got to choose which defendants would be eligible to participate in drug court. Now judges have that power in a wide swath of cases. And that’s what has the opponents of this latest reform upset: the idea of prosecutors’ authority being usurped.

“Why would you take away our power?” asks Richmond County District Attorney Daniel Donovan, who is also president of the New York State District Attorneys Association. “There are going to be times when the judges are not going to know what we know about somebody, but we’re not allowed to talk about it in open court,” like, he says, a guy arrested for drugs who is also a suspect in two homicides. “The people in the best position to be able to identify who should go into treatment and who deserves jail are the prosecutors.”

Donovan says the district attorneys’ association’s “biggest fear” is that drug dealers are going to finagle their way into treatment, sidestep prison sentences and quickly return to their illegal activities, with the net result of a resurgence of violent crime in the city. Other law enforcement officials echo those fears.

The predictions of a crime explosion are not new. Gabriel Sayegh, director of the State Organizing and Policy Project at the Drug Policy Alliance Network, a nonprofit drug law reform organization, says anti-reform legislators and law enforcement types tried playing the fear card during the debate over the 2004 reforms to the Rockefeller laws. The reforms passed. “It was the same type of ‘There’s going to be hell to pay’ stuff, but of course, nothing happens,” says Sayegh. Approximately 1,000 inmates were eligible for resentencing in 2004 and 2005. About half of them were released, and the recidivism rate turned out to be only 2 percent. Crime continued to decline.