New York Rockefeller Drug Law Reforms of 2009 - Overview
New York's Rockefeller Drug Law Reforms of 2009
In 2005, the New York State Legislature took the first steps toward relaxing some of the harsh sentencing rules for drug offenses in New York State.
While the reforms of 2005 certainly lessened the exposure of people charged with drug offenses, there was still room for further change. Beginning in April, 2009, these new changes have arrived. Here is a brief overview of some of the more dramatic changes to the way New York State treats felony drug offenses.
It will still remain to be seen how these changes in sentencing and treatment possibilities translate into the way cases are actually prosecuted. It must be remembered that many of the changes simply provide the system with a greater array of options in cases.
The old Rockefeller Drug Laws were harsh in part because they allowed no discretion to the court as to sentencing, requiring large mandatory minimum sentences in all cases. Much of the Rockefeller Drug Law reforms of 2009 are designed to provide the Court greater flexibility and discretion, allowing a more flexible approach.
Realize that this does not mean that it is impossible to receive substantial prison sentences for felony drug sentences in New York. It is certainly still possible, even for a first arrest drug felony to face staggering amounts of state prison time. The reforms of 2009 simply give the Courts and prosecutors the discretion to offer other alternatives IF THEY CHOOSE TO. This is key to understanding the real meaning of these reforms. Given what used to be the complete lack of discretion allowed to the Court in sentencing drug cases, the only way to avoid the harsh sentencing penalties in drug case was to rely on the good will and discretion of the Government.
Now in fairness, it was often the case that the Government would in fact exercise its discretion and good will in dealing with drug cases and provide a certain measure of relief in plea bargaining to people the Government believed were in fact drug addicts as opposed to "real" drug dealers.
The Prosecutors' Offices in most boroughs in New York City, for example, were supportive of "Drug Courts" where certain identified drug cases could be diverted for treatment. But eligibility for Drug Court was dictated by the Prosecutor's Office.
Under the Rockefeller Drug Law Reforms of 2009, judges are getting back some of the discretion that they lost when the mandatory sentencing rules were imposed.
NO MORE MANDATORY MINIMUM FOR B FELONY DRUG OFFENSE (Sale or Possession with Intent)
Perhaps the reform with the biggest potential impact on the day to day practice of criminal law in New York City is the elimination of a mandatory minimum sentence for B felony drug sale cases and B felony possession with intent to sell cases.
Under the 2005 reforms, the mandatory minimum for B felony drug cases in New York was rolled back to 1 flat year from an indefinite term of 1-3 years. Under the 2009 reforms, a judge sentencing a defendant under a B felony drug case has the power to impose a probationary sentence, meaning the person need not go to prison any longer. The court is also allowed to sentence a person convicted of a B felony drug case to a fixed amount of jail time less than one year.
This is important because the number of B felony drug cases is enormous. The number of B felony drug cases is enormous because, contrary to what most people would probably guess, just about any drug related case can be charged (and often is charged initially) as a B felony drug case. A couple of things are important to know in order to understand why this is.
First, the "sale" of any amount (even one molecule) of a controlled substance is a B felony in New York. Further, "sale" is defined in New York Criminal Law to include the meaning of "to give". That means that no money need change hands. That means that in New York, two crack addicts passing a crack pipe to each other are "drug dealers" because they are "selling" the crack in their crack pipe to each other every time it changes hands.
Second, possession of any amount of a controlled substance "with the intent to sell it" is also a B felony in New York. That means that people who are arrested with amounts of controlled substances that could be personal use are often charged with possession "with intent to sell". The decision to charge possession with intent to sell is often based on the subjective judgment of the government as to what is personal use and what is "for sale".
You can probably imagine which way the Government is more likely to go up front.
So if nearly every felony drug case CAN be charged as a B felony in New York, then you can see why the way B felonies are treated becomes probably the most critical issue - arguably even more critical than the most serious (but rarer) A felonies.
Under the old rules, even the reforms of 2005, in order to resolve most felony drug cases (since most of them are B felonies) the Government (prosecutor's office) was required to agree to and sign off on the deal. Without the Government's agreement, then the best an accused person could do (absent going to trial and winning) would be to plead guilty to the charge and see what the judge would do on sentencing. But under the old rules, the best any judge could do, without the prosecutor's consent to reduce the charges, was to sentence to 1 year in prison.
Therefore, under the old rules, even the reforms of 2005, the prosecutors had a great deal of control over who was allowed to receive non-jail bargains.
Under the reforms of 2009, however, a defendant now can make an effort to appeal directly to a judge for a non jail sentence and it will therefore be possible for a judge to impose a non-jail sentence even if the prosecutor doesn't agree. Therefore, in theory, the reforms of 2009 will create a dramatic decrease in the power of the prosecutors in plea negotiations in most felony drug cases.
Now this doesn't necessarily mean that the outcomes in cases will change dramatically. Whether or not the outcomes of drug cases dramatically change will depend on whether judges are more willing to exercise the greater discretion that has been handed them. In theory, some judges might take the position that unless the prosecutor agrees, they might not agree to a particular resolution. Therefore, whether or not the landscape radically changes in New York drug cases is going to depend on the willingness of judges to use their newfound discretion.
In terms of the new alternative sentences available to New York drug felonies, there is nothing MANDATORY. Judges are not required to impose alternatives to prison such as treatment.
Exclusions for Judicial Diversion for Treatment
Not everyone charged with B felony drug offenses will be eligible for judicial diversion under the reforms of 2009. Those convicted of or currently being prosecuted for violent felony offenses, certain other offenses (mostly sex offenses), and class A felonies are not going to be eligible.
Guilty Pleas Not Always Required
In most diversion situations, a guilty plea to something will be required and used as the basis to hold a potential prison sentence over the head of the accused during treatment. Nevertheless, interestingly, an up front guilty plea may not always be required under the new laws. If the court determines that exceptional circumstances exist, no guilty plea may be required up front. This could be a means to protect a non-citizen from immigration consequences. (As always, a consultation with an immigration lawyer is necessary to determine potential immigration consequences.)
Benefits of Diversion
A person who successfully completes judicial diversion under the reforms of 2009 may be eligible to have the case dismissed outright, or reduced to a misdemeanor offense.
PEOPLE CONVICTED UNDER THE OLD LAWS
People currently incarcerated, serving sentences of greater than 3 years for a B drug felony will be eligible to move to be resentenced in accordance with the current sentencing structure. Those serving more than 3 years on other drug felonies are eligible for this relief as well. Some exclusions apply, mostly for those with violent felony offenses or sex offenses in their backgrounds.
Conditional Sealing of Drug Convictions
Under the reforms of 2009, people convicted of felony drug offenses can move to have their convictions conditionally sealed. Further, the legislature has affirmatively declared it an unlawful discriminatory practice for most prospective employers to seek information about convictions that are conditionally sealed according to this program.
OTHER REFORMS
The 2009 Rockefeller Drug Law reforms make many other changes than those discussed above. Please be aware that the changes discussed above are discussed in broad terms. Please contact a New York Criminal Defense Lawyer if you have more specific questions about the drug law reforms or want to discuss a specific case. Feel free to call a criminal defense lawyer from Shalley and Murray at 718-268-2171.