THE NEW ROCKEFELLER DRUG LAWS

For many years, people charged with drug offenses is New York faced a rigid sentence of sentencing guidelines, which required incarceration and left little to no room for drug programs to assist in the offenders rehabilitation.  Because of the pervasive drug problem in New York, the Legislature imposed heavy sentences for the simplest possession offenses, and Judges and defense attorneys were powerless to help offenders who were legitimate drug addicts just in need of some help and understanding. 

This year, the Legislature finally listened to the public outcry for Drug Law Reform.  Although many people still face mandatory periods of incarceration, the New Drug Laws focus on rehabilitation for the offender and reduce prison sentences for simple possession offenses.  The new laws created a Judicial Diversion program, which allows offenders to seek treatment.  The new laws also removed the barrier that the Prosecutor consent to a sentence of parole supervision, otherwise known as the Willard program, when a PFO otherwise faces mandatory jail time.  The new laws seek to punish more harshly the traffickers than the users.  The new laws are a step in the right direction. 

In New York, drug offenses are classified usually based on the quantity of drugs and/or the substance involved.  It is usually the weight of the drugs that determines the level of the offense (A, B, C, D, E) and if the person is charged with intent to sell those drugs. 

            Below is a chart to help you understand the sentencing guidelines for Drug Offenses:

2009 Rockefeller Drug Law Reform Sentencing Chart⁶

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¹ Requires recommendation of DA, material assistance in prosecution of drug offense, and court approval. (Penal Law §65.00(1)(b)).

² Excluded if convicted of another felony offense, prior violent felony, a class A or B non-drug or subject to an undischarged term. CPL §410.91 (2).

³ No prior state prison. Less than 50 yrs old. Must be within 3 years to parole or conditional release. Excludes crimes listed in (Corr.L. §865(1)). For terms of more than 3 years must wait for rolling admissions.

⁴ Same as ft. note 3. For terms of more than 3 years must wait for rolling admission. (Corr.L.§865(2)).

⁵ See CPL §216.00(1)(a) for exclusions, but D.A. may consent to include exclusions.

⁶ Effective 4/7/09.

⁷ Must serve 9 months jail or prison time to be eligible.

⁸ Judicial Diversion effective 10/7/09. Applies to crimes committed prior to Act not yet sentenced.

⁹ Alternative determinate sentence possible (8-20).

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There are major changes with the New Legislation.  A few of these changes include:

1. For first felony drug and marijuana offenses (Class B, C, D, & E): Imprisonment is no longer mandatory.  Probation and/or a split sentence are now available dispositions.  In addition, the Court can order the defendant directly into the SHOCK or Willard Drug treatment program if the person is sentenced to upstate imprisonment.
2. Second felony offenders (with non-violent prior felony convictions): Imprisonment is no longer mandatory if the defendant is "judicially diverted."  Diversion, as well as the other programs, will be explained further below.  Additionally, the minimum prison sentence has been reduced from a mandatory 3 ½ years to 2 years for a B felony and reduced to 1 ½ years from a mandatory 2 years for a C felony.
3. The new law does not require DA consent for the Willard Drug Program.  The old law required DA approval before the judge could sentence a defendant to a sentence of parole supervision.  In addition, certain offenses only were Willard eligible offenses, and that list has been expanded to include more offenses.  See more below about Willard.          

THE TREATMENT OPTIONS AVAILABLE:

A) The Willard Program

Willard was originally established as a joint program between the Division of Parole, the Department of Correctional Services (DOCS), and the Office of Alcoholism and Substance Abuse Services (OASES).  It was established to target certain class D and E second felony offenders whose criminal conduct was related to a substance abuse problem.  Willard itself is a sentence of parole supervision, with the first 90 days spent in an intensive drug treatment program.  Since its inception in 1995, Willard has been available to second felony offenders convicted of a "specified offense" as defined by Criminal Procedure Law Section 410.91(5), upon the finding that the defendant has a substance abuse history that is a "significant contributing factor" to his criminal conduct, that this problem can be addressed by a period of parole supervision, and that "imposition of such a sentence would not have an adverse effect on public safety or public confidence in the integrity of the criminal justice system."  CPL Section 410.91(3).  For class D felony offenders, under prior law, Willard was not available without the consent of the prosecution.

Drug law reform makes several significant changes to CPL 410.91:

1. The list of specified offenses is expanded to include burglary in the third degree, class C drug offenses, and first-time class B drug offenses.  The lists of offenses are now:
   • Burglary 3^rd - Penal Law Section 140.20
   • Criminal Mischief 3^rd - PL 145.05
   • Criminal Mischief 2^nd - PL 145.05
   • Grand Larceny 4^th - PL 155.30 (excluding subdivisions 7 and 11)
   • Grand Larceny 3^rd - PL 155.35 (excluding offenses involving firearms, rifles, and shotguns)
   • Unauthorized use of a vehicle 2^nd - PL 165.06
   • Criminal Possession of Stolen Property 4^th - PL 165.45 (excluding subdivisions 4 and 7)
   • Criminal Possession of Stolen Property 3^rd - PL 165.50 (excluding offenses involving firearms, rifles, and shotguns)
   • Forgery 2^nd - PL 170.10
   • Criminal Possession of a Forged Instrument 2^nd - PL 170.15
   • Unlawfully using slugs - PL 170.60
   • Any attempt to commit any of the above-listed offenses
   • Any Class C, D, or E felony drug offense
   • Any Class B first-time drug offense
2. Those who have been previously convicted of a class B Article 220 offense are no longer excluded from Willard. 
3. The District Attorney no longer needs to consent to a Willard sentence.
4. Willard is now available for first time B felony drug offenders.

B) SHOCK Incarceration (Correction Law Sections 865-867)

Started in 1987 as a DOCS program, Shock is a 6 month long boot-camp style program that provides intensive substance abuse treatment, education, and an opportunity for a significantly reduced prison sentence for those who successfully complete the program.  Those who graduate are awarded an Earned Eligibility Certificate and are immediately eligible for parole release (those serving indeterminate sentences) or conditional release (those serving determinate sentences).  Until the 2009 amendments, eligibility for Shock was determined only by DOCS after reception at a facility and inmates were only eligible for Shock if: within 3 years of parole eligibility or conditional release at the time of reception, at least 16 years old but not yet 40 years old at the time of reception, not convicted of a A-1 felony, violent felony offense, homicide, specified sex offense, escape, and had no prior felony conviction for a felony upon which a determinate or indeterminate sentence was imposed.  Unlike Willard, decisions regarding placement in Shock was solely the province of DOCS, and judges had no authority to order an inmate be placed in the program.

Drug law reform makes several significant changes to Shock:

1. Judicially ordered Shock and Alternative to Shock Programs.  Sentencing judges are now authorized to order Shock placement for those defendants convicted of a controlled substance offense that requires a prison sentence.  Defendants still must meet the above criteria for eligibility.  If a judicially ordered Shock defendant is found ineligible because of medical or mental health issues, DOCS must propose an alternative to Shock program. 
2. Shock eligibility has been extended beyond reception.  Current inmates can now become eligible for Shock if they meet the above-mentioned criteria.
3. 50 is the new 40.  The age limit for Shock has been extended to 50 years old from 40 years old.

C) Comprehensive Alcohol and Substance Abuse Treatment, or CASAT (Correction Law Section 2(18)

CASAT is a three-phased substance abuse treatment program that includes prison-based substance abuse treatment, work-release with a community based treatment component, and parole with substance abuse aftercare.  Generally, inmates are eligible for CASAT if eligible for temporary release, which means that an inmate must be within two years of his or her parole or conditional release date.  2004 amendments expedited CASAT eligibility for those convicted of Penal Law Article 220 or 221 drug offenses.  However, the 2004 amendments also included a provision requiring second felony class B drug offenders serve at least 18-months of their sentence before achieving CASAT eligibility.  This 18-month mandate has been halved so that now second felony class B drug offenders must now serve at least none months before achieving CASAT eligibility.