New York Reconsiders 1970s Drug Laws

Denise Smith’s children ask her the hardest questions. What is crack? Why are you in prison? And toughest of all: When are you coming home?

“You know, at 8 or 9 they really don’t have a concept of time, so I tell them, ‘Soon,’ ” she says, tears falling on her prison greens. “They say, ‘You said that last time.’ ”

Smith is five years into a 10-to-20-year sentence for possession and sale of drugs.

The 40-year-old woman is among 21,000 inmates in prison under New York’s Rockefeller-era drug laws--a set of statutes so uncompromising that even tough-on-crime Gov. George Pataki, the man who brought back the death penalty, wants to soften them.

The laws were enacted in 1973 under Gov. Nelson Rockefeller at a time of fear over rising crime and heroin use. Among other things, the laws establish a mandatory sentence of 15 years to life for people dealing more than two ounces of drugs or possessing more than four ounces.

The state District Attorneys Assn. has urged Pataki and lawmakers to go slow as they consider undoing the Rockefeller laws. Some prosecutors contend that the links between the drug trade and violence are strong and that putting away drug criminals makes the streets safer.

But critics say the Rockefeller sentences are too harsh, that they penalize addicts who would benefit more from drug treatment, and that they punish minorities disproportionately and break up black families.

Smith, who is black, lives behind the high fences and coiled barbed wire of Albion state prison in western New York’s farm country. A former crack addict who used to prostitute herself for drug money, she has three children, now 8, 9 and 20.

She has been productive behind bars, learning computer skills, working toward an associate’s degree and helping coordinate a prison infant day care center.

“Most people don’t understand, but I’ve learned in the five years I’ve been down this time that the addiction is so cunning,” she says. “It will tell you you’re all right, but you’re not.”

Smith says she was in the midst of a sleepless, two-day drug binge when she took part in two sales to an undercover officer in 1996. Smith says she made no money on the deals and merely passed along two bags of crack worth $30 each as the drugs were transferred from the seller to the undercover buyer. That way she could grab some of the crack for herself.

Turning down a plea bargain, Smith went to trial and lost. It was her second felony drug offense. The minimum sentence for repeat offenders like Smith was 4 1/2 to nine years.

The judge who sentenced her said it appeared that the only time Smith wasn’t selling drugs was when she was behind bars. “You have no excuse not to realize the criminal nature of your conduct,” Judge Paul Czajka said.

Peg Wright, her former drug counselor, believes Smith was wrongly treated as a drug dealer when in reality she was an addled crack addict. “She had no real grasp, like so many others, that crack cocaine couldn’t be mastered,” Wright says.

Pataki’s plan would give judges the discretion to send nonviolent convicts to rehab centers and would soften the stiffest mandatory sentences. The plan would not apply retroactively for lower-level offenders like Smith, who could get out as early as 2004.

The proposal’s future is uncertain. Law-and-order legislators are loath to soften punishments for serious drug offenses. And some Democratic lawmakers say the reforms need to go further.

As the governor announced his plan inside the state Capitol in January, advocates calling for wide Rockefeller reforms gathered outside.

Mary Mortimore of Schenectady was there talking about how her two sons--both convicted of selling drugs--have watched violent felons come and go while they do their time. Her son William Hilts, 36, is serving 11 to 23 years; Jeffrey Hilts, 35, is doing 15 to 30.

“It’s been hell for me,” the 55-year-old woman says. “I can’t talk to them when I want to. I can’t touch them. I can’t see them. And the thought of them being behind bars just weakens me.”

Behind the walls of Eastern state prison in the Hudson Valley, Jeffrey Hilts is aware “my mother does time too” and says he regrets selling drugs. “Some of this I needed,” he says of his punishment. “I don’t think I deserved all of it.”

Schenectady County Dist. Atty. Robert Carney, president of the District Attorneys Assn., disagrees. Carney says Hilts had 16 prior non-felony convictions, plus a federal conviction for possessing guns while trafficking in narcotics.

“He was a real menace to our community,” Carney says.