New York’s Rockefeller Drug Laws, perhaps the most infamous embodiment of criminalizing addiction and drug use in the history of the United States, opened the floodgates to mass incarceration. They set the stage for the passage of many other draconian measures and reinforced the marginalization and disenfranchisement of people in Black and Brown communities across the nation. Today, 10 years after reform of Rockefeller, the immense damage wrought lives on.
Sixty to 80 percent of the 2.2 million people incarcerated in our country’s jails and prisons struggle with substance use disorder, and an entrenched cycle of persistent economic and social instability plagues many of the more than 70 million Americans with criminal records. New York must now take the lead in undoing the damage done by Rockefeller and set a new example to the nation.
To understand what our state and nation need to do now, it is important to remember how we got here. President Richard Nixon’s declaration of the “War on Drugs” in 1971, combined with New York Governor Nelson Rockefeller’s drive to be in the national spotlight and his failure to reduce crime and addiction in the previous decade, precipitated passage of the Rockefeller Drug Laws (RDL) in 1973.
By 1983, 49 states had followed New York’s lead by passing mandatory sentencing laws.
RDL encompassed two sets of laws. The first mandated minimum sentences for different classes of drug felonies, all of which were indeterminate sentences up to a maximum of life in prison. The second established the Second Felony Offender Law, requiring prison time for a second conviction of any felony committed within 10 years of the first. Under both sets of laws, judges were prohibited from utilizing any non-incarceration sentence, such as requiring people to attend community-based substance use treatment.
These laws marked the beginning of a national wave of mandatory minimum sentencing far harsher than any previous measures. By 1983, 49 states had followed New York’s lead by passing mandatory sentencing laws. One year later, the federal government also jumped on the bandwagon.
Attorneys and advocates at the Legal Action Center (LAC) immediately began to challenge the Rockefeller laws as unconstitutional.
LAC brought Carmona v. Ward—the first and only federal challenge to the RDL’s constitutionality—in the US District Court for the Southern District of New York on behalf of three women: Martha Carmona, Donna Foggie and Roberta Fowler. This case challenged their sentencing under RDL as cruel and unusual punishment. Fowler, for example, was sentenced to four years-to-life in prison for a $20 cocaine sale conviction.
Judge Constance Baker Motley, who presided over the case, ruled in August 1977 that the women’s sentences were “so disproportionately severe in relation to the gravity of the offenses charged as to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.” She determined that, “the treatment of A felony drug offenders [was] unique in its severity among non-capital crimes in New York … but [was] also virtually unique among all the states of the Union.”
Our victory in this case facilitated the release of Fowler and Carmona from incarceration, as well as Foggie’s discharge from parole custody. It also highlighted RDL’s inherent problems. Later that year however, the decision was overturned in the US Court of Appeals for the Second Circuit—though Judge James L. Oakes issued a strong dissent, noting that severe, disproportionate sentences should be set aside by the courts. He also noted “that the operation of the 1973 New York drug law had no real deterrent effect on drug abuse or on resulting felonious property crimes.”
The failure of the Supreme Court to act 40 years ago was in many ways the first ripple of the wave of mass incarceration that has now engulfed our country.
LAC then petitioned the Supreme Court to review Carmona. While the case was not accepted for review nor argument, Justice Thurgood Marshall, joined by Justice Lewis Powell, was so compelled to object that he dissented from the Court’s refusal to take the case in 1979, noting RDL’s unique severity and inherent disproportionality. He declared: “To rationalize petitioners’ sentences by invoking all evils attendant on or attributable to widespread drug trafficking is simply not compatible with a fundamental premise of the criminal justice system, that individuals are accountable only for their own criminal acts. Nor is it consistent with the proportionality principle implicit in the Eighth Amendment.”
Justice Marshall’s dissent catalyzed the State Legislature to remove mandatory life sentences for most drug offenses but left the rest of the draconian punishments in place.
This failure of the Supreme Court to act 40 years ago was in many ways the first ripple of the wave of mass incarceration that has now engulfed our country. A 1979 New York Times article discussed the blow delivered by the Supreme Court’s refusal to hear our case and explained that already, studies were showing that RDL was failing to reduce drug use or drug-related crime. Law Professor Brian Gilmore and Reginald Betts, former Obama-appointee of the Coordinating Council of the Office of Juvenile Justice and Delinquency Prevention, wrote in a 2013 law journal article that, “The [Carmona] decision itself is important, because a different decision could have altered how the war on drugs was implemented.”
LAC brought Carmona because from the very beginning we saw the enormous injustice of severely punishing people addicted to drugs and the horrendous consequences that would inevitably follow. These included widespread discrimination that would lock huge numbers of people—especially Black and Latinx individuals—out of gainful employment and other necessities of life.
Because of systemic racism and the over-policing of communities of color, those arrested are disproportionately Black or Latinx: 46.9 percent.
Today, the impact of the Rockefeller Drug Laws and the War on Drugs is indisputable. The number of people incarcerated for drug-related offenses exploded to over 450,000 in 2017, compared to 40,900 in the early 1980s. Even higher is the number of arrests for drug-law violations, which in 2017 reached over 1.6 million, 85 percent of which were for possession only.
Because of systemic racism embedded in our criminal justice system and the over-policing of communities of color, those arrested are disproportionately Black or Latinx: 46.9 percent—despite these demographics making up just 31.5 percent of the US population, and despite similar rates of drug use across racial lines. We have also reached a point where far more Americans with substance use disorder are involved in the criminal justice system (6 million) than in the treatment system (2.3 million).
It is painful but essential to understand how different these numbers could be had LAC’s case been heard by the Supreme Court and had the Court upheld the original ruling in our clients’ favor.
While there was nothing more we could do in the courts after Carmona, LAC and others continued to advocate for reform of RDL in the following years. Our series of Rockefeller Reports in the 1980s and ‘90s illustrated the ever-expanding waste of human lives and funds.
LAC first stressed the cost-savings of reform in the early 2000s, enumerating the millions of dollars that New York could save by diverting people from prisons to community-based drug treatment. We conducted a poll asking the public, “Do you think someone who’s been convicted of two drug felonies should go to prison rather than treatment?” More than half of respondents, across state regions and political persuasions, said “No.”
When then-Governor Pataki came out with his own, very weak, reform plan in 2002, LAC created a report showing the miniscule number of people who would have been diverted under that plan—fewer than 350. Albany’s Times Union published a cartoon depicting an elephant with a band-aid in response.
Through strategic communications and advocacy, and working with our many champions in the state legislature, we were finally able to begin to tip the scales.
Slowly, more and more people were beginning to accept that drug addiction is a health condition for which there are more effective, more compassionate, and less costly alternatives to incarceration—and that reform was imperative. The Drug Policy Alliance* was instrumental in bringing together a group of strong and passionate advocacy organizations—including LAC and the Correctional Association of New York, and later the Katal Center for Health, Equity, and Justice—to work on various fronts to address the terrible ramifications of flawed drug policy.
Through strategic communications and advocacy, and working with our many champions in the state legislature on drafting proposed reforms, we were finally able to begin to tip the scales.
In 2004, the first Rockefeller reform passed. Highlights included the elimination of remaining life sentences, the lowering of many other sentences, and the opportunity for some incarcerated people to apply for resentencing. In 2005, another Rockefeller amendment was passed, extending the eligibility for resentencing to people serving long prison sentences for Class A-II drug felonies.
Eventually, powered by Democratic alignment in New York’s State Senate, Assembly and executive, the most significant reform legislation passed. The 2009 Drug Law Reform Act (DLRA) amended the Second Felony Offender Law to give judges more non-jail/prison sentencing options for certain drug and low-level offenses. As a result, judges were newly empowered to divert eligible people to community-based treatment.
The DLRA also allowed for courts to enroll people within three years of release to shorter, six-month “Shock Incarceration” programs. (While a step in the right direction, it’s important to note the lack of access to evidence-based addiction treatment in these programs.) The reform also allowed some people convicted of certain drug felonies to be resentenced, and notably permitted, for the first time in New York State, the “conditional sealing” of some offenses.
These landmark reforms have benefitted thousands of New Yorkers, but substantial shortcomings remain.
Among other things, current law severely limits who is eligible to receive non-incarceratory sentences. And few people in New York even know that they may be eligible to have their cases sealed. Those who do encounter a cumbersome process that deters them from applying. So very few cases have been conditionally sealed.
While we should recognize the significance of the DLRA, it is more important to identify the critical reforms that still need to be achieved—and implement them.
It has been 10 years since Rockefeller drug law reform instituted important changes. We cannot wait another moment to finish the job.
Reforms so far have not done nearly enough to remediate the systemic injustice bred over decades. Many hundreds of thousands of New Yorkers (and many more people in other states) saddled with drug convictions still struggle to find jobs and homes, go to college, and access the care and resources they need to lead fulfilling, sustainable lives.
New York State can blaze a trail for the entire nation by adopting the following four sets of reforms:
1. Repeal the rest of the Second Felony Offender Law. For all offenses, judges should have the authority to choose from a full array of sanctions after weighing all factors and circumstances, and not have their hands tied if someone previously committed an offense in the past 10 years. A one-size-fits-all requirement of incarceration is neither just nor effective at reducing crime, nor an efficient use of tax-payer dollars. Other sentencing reforms should also be enacted, such as lowering maximum sentences for certain offenses.
2. Bring alternatives to incarceration (ATI), reentry services, and substance use and mental health treatment to scale across New York State. New York has the strongest ATI and reentry system in the country, but it still falls far short of serving everyone who would benefit, and not all programs offer access to the full range of FDA-approved, evidence-based addiction medicine. Research has conclusively demonstrated that ATI and reentry services are effective in reducing crime, facilitating community reintegration, and saving money. Bringing them to scale is therefore a win-win proposition.
3. Automatically expunge criminal convictions after an appropriate period of time. The most effective way to protect people from discrimination based on a past criminal record is to expunge those records after they are no longer relevant to applications for the jobs, homes, education, and benefits vital to many families. Automating expungement ensures all who can benefit will, as well as minimizing administrative burdens.
4. Lower barriers to reentry. While expungement is the most effective way to protect against discrimination, many people with criminal records will not be eligible. So reforms that will help these people succeed as full community members—including reforming our voting laws, so that people on parole can vote, and enacting Fair Chance legislation to prevent employers from asking about a criminal record until a conditional offer of employment is made—are needed.
Although some damage can never be undone, much can be. We must stop subjecting more people— who are always disproportionately people of color—to blatant injustice.
The misguided policies of the Rockefeller drug laws and their ilk have done nothing to combat addiction in this country. As we now face the latest overdose crisis and rank as the world’s leading incarcerator, the need to shift from a focus on punishment to treatment and recovery is paramount.
Legal Action Center recently launched our “No Health = No Justice” campaign to pursue that goal by seeking reforms at the intersection of the health and criminal justice systems— grounded in the recognition that institutional racism is rampant and must be combatted in both.
It has been 10 years since Rockefeller drug law reform instituted important changes. We cannot wait another moment to finish the job.
This article was co-authored with Tracie Gardner and Anita Marton.
Tracie Gardner is the vice president of policy advocacy for the Legal Action Center. She has worked for almost 30 years in the public health, publicy policy and not-for-profit fields as an advocate, trainer and lobbyist. She has led advocacy campaigns that won substantial increases in funding for substance use, HIV, and alternatives-to-incarceration and reentry services, as well as achieving landmark HIV confidentiality and testing legislation and criminal justice reforms. From 2015-2017, Tracie served as the assistant secretary of Mental Hygiene for New York State, where she oversaw the state’s Office of Alcoholism and Substance Abuse Services, Office of Mental Health, Office for People with Developmental Disabilities, the Developmental Disabilities Planning Council, and the Justice Center for the Protection of People with Special Needs.
Anita Marton is the senior vice president for the Legal Action Center (LAC). In her 30-plus years at LAC, Anita has provided legal advice and assistance to individuals with alcohol and drug histories, criminal records, and HIV and has participated in ground-breaking litigation on all of these issues. She has also provided training and technical assistance to health and social service providers, federal, state, and local policymakers, employers, employee assistance programs and unions on such issues as managed care and welfare reform, confidentiality of treatment records and employment discrimination. She has drafted legislation, written position papers, testified before legislative committees, and served on advisory committees at the state and local levels.
*The Influence Foundation, the nonprofit organization that operates Filter, has received a restricted grant from the Drug Policy Alliance to support a Drug War Journalism Diversity Fellowship.