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New York Legislature to Vote on Overhauling Draconian Rockefeller Drug Laws

March 03, 2009


Kirk James

served nine years under the Rockefeller drug laws as a first-time offender. He’s now a social justice activist.

Caitlin Dunklee

coordinator of the Correctional Association’s Drop the Rock, a grassroots campaign to repeal the Rockefeller drug laws.

Assemblymember Jeffrion Aubry

Representing New York’s 35th Assembly District in Queens, has led efforts in the New York state legislature to repeal the Rockefeller drug laws.

The New York State Assembly is set to vote Wednesday on legislation that would allow judges to send drug offenders to substance abuse treatment instead of prison. The legislation would also allow thousands of prisoners jailed for nonviolent drug offenses to have their sentences reduce or commuted. It’s the latest step in a long campaign to repeal the draconian Rockefeller laws. The laws impose lengthy minimum sentences on drug offenders, even those with no prior convictions. The laws have disproportionately targeted people of color, while giving prosecutors de facto control over how long convicts are jailed. [includes rush transcript]


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: For more than thirty-five years, thousands of nonviolent drug offenders have been jailed for lengthy terms under New York’s draconian Rockefeller drug laws. The laws impose lengthy minimum sentences on drug offenders, even those with no prior convictions. The laws have disproportionately targeted people of color, while giving prosecutors de facto control over how long convicts are jailed.

But those laws could be on their way out. The New York State Assembly is set to vote today on legislation that would allow judges to send drug offenders to substance-abuse treatment instead of prison. The legislation would also allow thousands of prisoners jailed for nonviolent drug offenses to have their sentences reduced or commuted. New York Governor David Paterson is also preparing a measure that would let judges determine sentences instead of having to follow state-imposed mandatory minimums.

It’s the latest step in a long campaign to repeal the Rockefeller drug laws. The effort has been propelled by a grassroots campaign involving many ex-prisoners.

I’m joined now by two guests here in the firehouse studio. Kirk James was released in 2003 after serving nine years in jail as a first-time offender. He’s now a social justice activist who actively campaigns against the Rockefeller drug laws. Also in the firehouse studio, Caitlin Dunklee. She is coordinator of the Correctional Association’s Drop the Rock campaign, one of the main grassroots campaign to repeal the Rockefeller drug laws, along with the William Moses Kunstler Fund for Racial Justice.

And on the line with us from the state capital of Albany is Assemblymember Jeff Aubry. He represents New York’s 35th Assembly District in Queens. He has led efforts in the New York state legislature to repeal the Rockefeller drug laws.

Well, why don’t we begin with Assemblyman Jeff Aubry? Tell us what the legislation that you’ve co-sponsored is today. Many have characterized it as repealing the drug laws, but it’s not exactly doing that.

ASSEMBLYMEMBER JEFFRION AUBRY: It doesn’t entirely repeal all that Rockefeller does, but it does restore discretion to judges for offenses from the B level down, so that a judge will no longer have — be bound by the mandatory minimum and will be able to use a variety of options regarding sentencing for someone who is convicted or pleads to a drug possession or sale charge.

AMY GOODMAN: Explain what a mandatory minimum is.

ASSEMBLYMEMBER JEFFRION AUBRY: A mandatory minimum essentially establishes a minimum number that an individual must serve if convicted. There is no discretion associated with that. So that would mean that that person must go to prison and must serve that particular period of time. And by removing it, we give, as I say, the option for treatment or split sentences or a variety of options that a judge might fashion once he looks at the full evidence of a case after a trial.

AMY GOODMAN: Kirk James, why don’t you tell us your story?

KIRK JAMES: Hey, how are you doing, Amy?

Well, I was incarcerated at eighteen as a first-time — as a first-time offender, so to speak. I was a first-year college student who was approached by an undercover informant, who actually turned out that he worked for the ATF. And this person —-

AMY GOODMAN: Bureau of Alcohol, Tobacco, Firearms.

KIRK JAMES: Yeah. And what this person actually did was -— I like to say that I was entrapped. I don’t know what better word to say, but I never sold drugs, I never had any involvement with drugs, and this person told me that if I could arrange for his friends, who were looking to buy drugs, that they would pay me a substantial amount of money. So this occurred over a few months, where I said no. I initially declined the offer. And he was very persistent. He told me that the money would be great and that they’d be willing to pay a lot more than the street value, so to speak.

I was eventually able to find someone who would be able to provide the drugs for them. And so, I acted as the medium, so to speak. And this went on for a period of four months, where drugs was exchanged. I had no direct — I wasn’t involved directly in the sale, so to speak. I mean, I helped to arrange the sale, to facilitate the sale. And to make a long story short, after four months, I was incarcerated. And it turned out that, you know, everything unfolded that these guys were ATF agents and that, you know, I was facing a substantial amount of time in prison. Actually, my first offer was forty to life.


KIRK JAMES: Forty years to life in prison, and as a first-time offender who had no knowledge of the criminal justice system and didn’t — like, I don’t want to say I was young and naive. I knew clearly that, you know, I was agreeing to something that was wrong.

AMY GOODMAN: Were you accused of — did you have weapons? Were you accused of hurting someone?


AMY GOODMAN: This was a first-time offense.

KIRK JAMES: First-time offense. Like I said, I had never been in trouble before. I was eighteen years old. I was actually a college student. No history whatsoever and no prior criminal activity. I’ll be very clear on that, that this was actually my first time involved in any type of criminal activity. That’s why I use the word "entrapment," so to speak.

So, I was in this situation, I mean, as an eighteen-year-old. You can imagine, I was very scared, I was very afraid. And like I said, my first offer was forty years to life.

Eventually, my family was able to afford legal representation. And by then, you know, the entire story came out, and I had numerous charges, even though, like I said, I didn’t have any direct involvement in the sales. I was charged acting in concert. So I had numerous charges, and these charges were what’s considered A1 felonies, A1 felony being the highest felony you can under Rockefeller drug laws, which each conviction lead into a term of fifteen to life minimal.

So, after about six months in the legal process, my lawyer didn’t feel that it would be very wise for me to go to trial and actually steered me toward taking a plea of seven to life, with the belief that I’d be out a lot sooner. He told me that I’d be eligible for work-release programs, I’d be eligible for different type of release programs.

AMY GOODMAN: How long did you serve?

KIRK JAMES: Ended up serving nine years in prison.

AMY GOODMAN: Nine years.


AMY GOODMAN: How unusual is this, Caitlin Dunklee?

CAITLIN DUNKLEE: It’s not unusual at all.

AMY GOODMAN: How many people are in jail as a result of the Rockefeller drug laws?

CAITLIN DUNKLEE: Right now, as we’re sitting in this room, there’s 12,000 people who are serving time under the Rockefeller drug laws in New York, 12,000.

AMY GOODMAN: You’re with the Correctional Association. Explain what that is.

CAITLIN DUNKLEE: The Correctional Association is a nonprofit agency that was founded in 1844 and works on a range of incarceration policies and prison policies. And Drop the Rock is the campaign, the statewide grassroots campaign, to repeal the Rockefeller drug laws.

AMY GOODMAN: What is your assessment of the bill that the New York legislature is going to be voting on today, the Assembly?

CAITLIN DUNKLEE: I think it’s a really positive step forward, and I thank Jeff Aubry, Assemblymember Jeff Aubry, for all of his leadership on this issue for years and years. He introduces a full repeal bill every year, and that’s the bill that we support entirely. The reform bill, which is going to be voted on, I believe tomorrow, in the State Assembly, is, like I said, a step forward but has also some shortcomings to it.

AMY GOODMAN: What are your concerns?

CAITLIN DUNKLEE: My concerns are that it limits judicial discretion in many cases. And so, in particular, if people have any history of a violent felony in their past, in the past ten years, if anyone — excuse me — is selling to — drugs to minors, if anyone is charged with a sex offense, and if anyone has a gun during the commission of the crime, all of those people are going to face mandatory sentences, and the judge’s hands are going to be tied in those cases.

AMY GOODMAN: Meaning the judge has no discretion.

CAITLIN DUNKLEE: The judge has no discretion in those cases. And so, at the end of the day, it’s going to be 40 or 50 percent of future drug offenders are eligible for discretion, and another 50 percent are not eligible.

AMY GOODMAN: So this is only going to affect half of the people?

CAITLIN DUNKLEE: Ballpark, about half of the people.

AMY GOODMAN: And what about those who are in jail right now, in terms of their sentences? Some have twenty-five to life, whatever you — Kirk talking about forty years to life, you were first offered. Caitlin, what about those people in jail now?

CAITLIN DUNKLEE: There will be some retroactive relief for B level — people charged with B-level felonies and down, meaning B, C, D and E. And folks who are serving time for A-level felonies will not be eligible, and folks who are coming in for A-level convictions will not be eligible for judicial discretion. An A1 felony now carries a sentence of eight to twenty years in state prison.

AMY GOODMAN: Assemblyman Aubry, you’ve introduced repealing the drug laws, truly dropping the Rock, but this is a reform measure. Why isn’t the legislature, which is now Democrat — and you have a governor, David Paterson, who in the past, what, in 2002, was arrested calling for the dropping of the Rockefeller drug laws — why not go forward with your repeal bill?

ASSEMBLYMEMBER JEFFRION AUBRY: The three-way negotiations that we’ve been in prior to us establishing and putting this bill forward clearly showed that there were limitations in our ability to pass a full reform bill. And that comes from looking at, you know, the number of people required to pass it in both houses and recognizing that we have — even with a Democratically controlled Assembly and Senate, we have a spectrum of very liberal legislators to more conservative legislators who have — still have issues and concerns about a, you know, full repeal of Rockefeller.

And as we have in the past, over the past years, as we did in 2003, 2004, you know, we’ve moved step by step to attack Rockefeller and remove the most onerous component parts of it, and the top sentences having been taken down in 2004 for both A1 and A2s. And we’re really just continuing the process of dealing with this particular — what we think is an aberration in the law, what I believe is an aberration in the law.

AMY GOODMAN: I mean, you’ve got — in terms of New York and many other states right now across the country, of course, dealing with tremendous budget crises. To keep people in prison, it costs more than to go to the fanciest university in America.

ASSEMBLYMEMBER JEFFRION AUBRY: $40,000 a year for individuals incarcerated in our prison. And treatment probably reduces that price to about $15,000.

AMY GOODMAN: So I would think there would be a tremendous impetus, if not just economically right now, in terms of closing these huge gaps, where New York State, not to mention places like California, other places, are talking about vast cuts in education and, you know, in the social net — in the legislation, in the programs in this country that keep people going, and yet continuing these laws that have been — that the Governor, himself, was arrested for protesting.

ASSEMBLYMEMBER JEFFRION AUBRY: And that is absolutely true. However, we have to recognize that there are still people who represent communities around this state who have concerns about loosening of the laws related to drug possession and drug use. And that is a real political reality, which we faced all the way from the back when nobody wanted to talk about dropping the Rock or changing the drug laws. And it is a constant struggle, which, you know, I think both the correction society and Drop the Rock and all of us have been engaged in over the years — changing opinions in the populace and also with elected officials is —- has been a long and arduous task. Tales like we just heard -—

AMY GOODMAN: Give us the history of the drug laws. Why were the Rockefeller drug laws instituted in the 1970s?

ASSEMBLYMEMBER JEFFRION AUBRY: It is said — there are two stories. We heard a different one more recently. It was said that, essentially, Governor Rockefeller was looking to run for national office —-

AMY GOODMAN: This was Nelson Rockefeller.

ASSEMBLYMEMBER JEFFRION AUBRY: —- and needed to — Nelson Rockefeller — and needed to shore up his conservative credentials. You know, Rockefeller was a much more of a liberal Republican than was the standard for the party around the country. And as he wanted to run for national office, there was advice that he needed to do this, and Rockefeller became the place where he staked out his conservative credentials.

There’s, at the same time, we had a — Rockefeller started the Rockefeller drug program, which was a state-run rehabilitations service that was used around the country, where people were civilly committed to facilities and were provided with what we think was really a rudimentary attempt to control drug abuse. And he was upset about the fact that there wasn’t the kind of success in his program that was designed, and so, therefore, he turned to create these very harsh drug laws.

And I think that comes, because we’ve become, over the years, to understand better that substance abuse is a disease, and substance abuse — the fact that people will relapse in this process of coming to a cure is just one of the things that you must accept. And so, essentially now, the battle is to take the idea of substance abuse away from the sense of criminal justice violations to a disease that requires treatment, that requires a certain medical and therapeutic understanding, if you’re really to solve the problem that we’re faced.

AMY GOODMAN: Do you think it’s too cynical to ask if part of the lobby for not — not getting rid of repealing the drug laws is that it’s a jobs program, the prison system throughout this state, the Upstate communities where the prison industry is so important?

ASSEMBLYMEMBER JEFFRION AUBRY: In certain areas of our state, in certain senatorial districts, particularly, there are numerous numbers of prisons, and so prison population in those districts are clearly political issues. And so, I don’t think it’s cynical to say that those who represent those districts are going to look at any attempt to reduce the prison population with suspicion and/or political dread.

We in fact engaged in a battle. The Governor has proposed closing some Upstate camps, because the prison population in the last ten years has dropped from some 70-plus down to 60,000 and hopefully down into 50,000 numbers. There’s a huge resistance, and was last year, to closing any of the camps — these are smaller facilities upstate — because of the loss of jobs and the potential — in fact, some of the towns associated with these camps would be threatened to potentially go out of existence. And so, I don’t think that that’s — there’s no cynicism in understanding a political reality, and that is a political reality.

AMY GOODMAN: Have you had much support from the new senator, Gillibrand, who does come from Upstate? Is she supportive of dropping the Rockefeller laws?

ASSEMBLYMEMBER JEFFRION AUBRY: You know, I do not believe that the senator has weighed in on this subject, that I’m aware of.

AMY GOODMAN: Kirk James, when you were imprisoned, where were you held?

KIRK JAMES: I was held in numerous facilities. There’s not a prison for nonviolent offenders. They actually throw you into — because I had seven years to life. Usually you start out — if you have a sentence more than six years, you start out in a maximum-security prison. So even as a first-time offender, I was sent to a maximum-security prison.


KIRK JAMES: Coxsackie.

AMY GOODMAN: This is all Upstate.

KIRK JAMES: All Upstate, all of the prisons.

AMY GOODMAN: One prison after another.

KIRK JAMES: Upstate, definitely. They’re really — I mean, there are one or two prisons in New York City. Like you pointed out, I mean, prisons definitely subsidize the Upstate economy, unfortunately, so they’re all Upstate, even though the majority of people are from New York City that are incarcerated.

AMY GOODMAN: Caitlin Dunklee?

CAITLIN DUNKLEE: And in fact, the people who are incarcerated in Upstate communities are actually counted as residents of those districts, not as residents of the districts in New York City, where the majority of our state’s prisoners come from. And those residents allow Upstate senators, and particularly Republican senators, to maintain the minimum number of people that they need in their districts to have a state senate district.

AMY GOODMAN: Wait, wait, wait. This is a very important point to end on here. You’re talking about a largely minority community from New York City. Maybe, Kirk or Caitlin, you can tell us what the numbers are.

CAITLIN DUNKLEE: Ninety percent of people who are incarcerated are people of color, under Rockefeller, and over 60 percent are people from the five boroughs.

AMY GOODMAN: And when they are imprisoned Upstate, they count as residents —-

KIRK JAMES: Under the Census.

AMY GOODMAN: —- Upstate — can’t vote, but count as residents —-

KIRK JAMES: Exactly.

AMY GOODMAN: —- Upstate.

CAITLIN DUNKLEE: That’s right. And not only does that maintain the minimum numbers that the Upstate legislators need in their district to maintain their district, but it also channels anti-poverty money from the federal government into Upstate districts, where that money should be going to where the people who are incarcerated came from.

AMY GOODMAN: Is that unusual, to count them as residents of the prisons that they are in?

CAITLIN DUNKLEE: It’s not unusual. It happens in many states across the nation.

AMY GOODMAN: We’re going to leave it there. We will follow the vote tomorrow. I want to thank you, Caitlin Dunklee, for joining us, coordinator of the Correctional Association’s Drop the Rock campaign. Kirk James, thank you for being with us.

KIRK JAMES: Thank you.

AMY GOODMAN: He served nine years under the Rockefeller drug laws, now a social justice activist to drop the Rock. And Assemblymember Jeff Aubry from Queens is the co-sponsor of the legislation that will be voted on in the New York State Assembly, not to repeal the laws right now, but to reform them.

This is Democracy Now! We’ll go national, then global in the next segment. We’ll look at the disparity in drug sentencing, and we’ll look at the international implications of drug laws in this country. Stay with us.

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