Academic journal article Albany Law Review

Measuring Culpability by Measuring Drugs? Three Reasons to Reevaluate the Rockefeller Drug Laws

Academic journal article Albany Law Review

Measuring Culpability by Measuring Drugs? Three Reasons to Reevaluate the Rockefeller Drug Laws

Article excerpt

The so-called Rockefeller drug laws,(1) enacted in 1973, have been New York's principal weapon in the war against drugs for the past three decades.

The statutory design, like the reasoning upon which it rests, is simple and straightforward. The legislature chose to impose lengthy and frequently mandatory sentences for possession and distribution of controlled substances, on the assumption that harsh and certain punishment would deter and reduce drug abuse and related crime.(2) Under this system, drug offenses are graded according to the dangerousness and the quantity of the drug involved.(3) Dangerousness of a drug is determined by consulting detailed schedules of controlled substances,(4) with the drugs considered most harmful listed in schedule I,(5) and those classified as the least harmful in schedule V.(6) Dangerousness is also evaluated by criteria described as objectively verifiable: potential for abuse, existence of approved medical uses, and safety.(7) Grading is according to the quantity of the drug involved: the greater the quantity, the greater the sentence. Possession of half an ounce of methamphetamine, for example, is a class C felony, punishable by a term of imprisonment up to fifteen years.(8) Possession of two or more ounces of methamphetamine, on the other hand, is a class A-II felony carrying a term of up to life imprisonment.(9)

As a result, the drug laws bear a strong resemblance to a chemistry manifesto. Elaborate tables and charts group drugs with jawbreaking polysyllabic names;(10) each new level of offense recites which drugs, in what quantity, will yield that provision's particular range of tough, frequently mandatory sentences,(11) The statutes look, literally, like a war against drugs. People who associate themselves with a particular quantity of a particular drug are punished on the theory that these punishments will prevent the drugs from doing harm.(12)

One key assumption upon which this statutory scheme is based is that there is a tight connection between drugs and harm and between the nature and quantity of a drug and the harm caused.(13) Some drugs--those "controlled" by the law--cause addiction, social harm (as drug abusers' lives fall apart), and incidental crime. Of these controlled substances, some are more addictive than others, cause more harm, and engender more crime, and therefore need to be contained by harsher sentences. The greater the quantity of drug possessed or distributed, the greater the harm unleashed, and the greater the punishment.

At the Albany Law School Symposium, District Attorney Bruno maintained that "The Rockefeller Drug Laws Fairly and Effectively Combat Drug Crime in New York State."(14) That result was certainly the hope of the 1973 legislature, and of the Temporary Commission which created the legislation's architecture.(15) The features of the drug laws just described were expected to deter and prevent drug abuse and related crimes, while the tight control of judicial discretion in sentencing was expected to produce fair and equal punishment.(16)

The arguments of three decades ago, explaining the basis of the choices made by these laws, sounded plausible in the Temporary Commission's report, and may still sound plausible to many people. However, after thirty years, we have little basis for evaluating the design of the Rockefeller drug laws, other than the same speculative reasoning and wishful thinking that led the Commission and the legislature to adopt this structure in the first place. The reasoning may not have been irrational, but was it right? The hope for fairness in application was sincere, but has it been borne out?

In the past thirty years, we have learned little to confirm the fairness or effectiveness of the New York drug laws' strategy.(17) We have, however, learned more about the nature of addiction and drug abuse in ways that should lead us to question some of the assumptions on which the Rockefeller drug laws rest. …

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