Drug Laws in New York State Violate International Law Primarily Because of Long Mandatory Minimums, Says Human Rights Watch Report

SENTENCING May-June 1997

New York State has violated international law by sentencing nonviolent, low-level drug offenders to long, mandatory prison sentences similar to those given to rapists and murderers, according to a report by Human Rights Watch (HRW) (Jamie Fellner, "Cruel and Unusual: Disproportionate Sentences for New York Drug Offenders," Human Rights Watch Report, March 1997, Vol. 9, No. 2 (B); "N.Y. Drug Sentencing Condemned," Washington Post, March 16, 1997, p. A13).

In New York State, almost 30,000 people a year are indicted for drug felonies and about 10,000 people are sentenced to prison each year on drug charges. The vast majority of drug offenders sentenced to prison are nonviolent or low-level dealers, such as onetime couriers carrying drugs for a small fee and addicts who sell to finance their own habits. According to HRW, harsh prison sentences for such drug offenders violate the "right to be free of cruel and degrading punishment, and the right to liberty," which are guaranteed in international treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment and Punishment.

Disproportionate sentences for minor drug offenders arise from the severity and rigidity of the mandatory minimum sentencing, says the report. For example, a person convicted of a single sale of 2 ounces, or possession of 4 ounces, of cocaine faces a prison term of 15 years to life, the same mandatory prison term as a murderer. For a single $10 sale of cocaine, the lowest sentence a court can impose is a term of 1 to 3 years. In addition, prior felony convictions substantially increase the mandatory sentencing requirements.

"New York has completely lost sight of the true nature of the crimes involved. ... It is difficult to believe that the possession of an ounce of cocaine or a $20 "street sale" is a more dangerous or serious offense than the rape of a ten-year-old, the burning down of a building occupied by people, or the killing of another human being while intending to cause him serious injury," said Judge James L. Oakes, United States Court of Appeals for the Second Circuit.

HRW says New York's laws cause disproportionate sentences because (1) "the classification of drug felonies is based solely on the amount of the drug possessed or sold," lumping people with vastly different roles and culpability together in the same felony class, (2) "the possession or sale of relatively small amounts of controlled substances is classified as a felony of equal gravity as murder or rape and is subject to the same sentences," (3) current drug laws do not permit "judges to exercise their traditional function of ensuring fair sentences," which restricts "their ability to divert nonviolent offenders to substance abuse treatment programs, or to impose constructive intermediate sanctions that are fair, safe, and effective alternatives to prison," and (4) contrary to the argument that mandatory minimu sentences help reduce sentencing disparities, "disparities continue through the exercise of prosecutorial discretion."

The report speculates that "it may be that disproportionate sentences for drug crimes have been tolerated because convicted drug felons are primarily members of racial and ethnic minorities." In New York, Blacks and Hispanics represent over 85% of people indicted for drug felonies and 94% of drug felons sent to prison. Blacks and Hispanics represent 17% and 12% of the state population, respectively, according to the U.S. Census Bureau. "A predominantly white state legislature has been insensitive to the rights and needs of people from communities different from their own," the report says. "While asserting concern for the harm drugs cause in poor communities, public officials have ignored the hardship to individuals and their families from unnecessary years of imprisonment."

Disparate drug sentences have also persisted because state courts have not upheld federal and state constitutional prohibitions on cruel and unusual punishment. "Although these prohibitions extend to excessive sentences, few drug offenders have succeeded in having disproportionately harsh sentences overturned as unconstitutional," the report says. For example, New York's highest court recently upheld a 15-years-to-life sentence imposed on a 17-year-old girl convicted of a single sale of 2 ounces of cocaine. The high court has previously acknowledged that the "harsh mandatory treatment of drug offenders ... has failed to deter drug trafficking or to control the epidemic of drug abuse in society, and has resulted in the incarceration of many offenders whose crimes arose out of their own addiction and for whom the costs of imprisonment would have been better spent on treatment and rehabilitation."

The report says the focus on and expense of incarceration contribute to the legislature's failure to provide the funding required to meet the demand for drug treatment programs, despite the greater expense of incarceration. There are only 71,000 publicly funded drug treatment slots in New York, while between 246,000 to 860,000 people need drug treatment. Paul Shechtman, former State Commissioner of the Division of Criminal Justice Services and former Director of Criminal Justice, has stated, many nonviolent offenders "need treatment more than lengthy incarceration." The 1997 Federal National Drug Control Strategy states that one of its main goals is to "[d]evelop, refine, and implement effective rehabilitation programs including graduated sanctions, supervised release and treatment for drug-abusing offenders and accused persons at all stages within the criminal justice system."

HRW recommends (1) "limiting lengthy sentences to cases in which specific, serious harm is caused or threatened," cases involving drug sales to children, or cases in which defendants have upper-level roles in drug distribution, (2) "eliminat[ing] mandatory minimum sentences for nonviolent drug offenders who do not have major roles in drug distribution operations," (3) "revis[ing] the classification of drug offenses to correct the current exclusive reliance on the amount of the drug involved," (4) "grant[ing] the judiciary the authority to depart from statutory sentencing ranges," and (5) "increas[ing] the availability and use of alternative sanctions for nonviolent drug offenders," and "increas[ing] the availability of substance abuse treatment on demand."

The report is available from the Publications Departments, HRW, 485 Fifth Avenue, New York, NY 10017-6104 for $6.00 (domestic), $7.50 (international), and is on-line at: www.hrw.org/summaries/s.us973.html.