The state District Attorneys Association, having failed to convince Albany that reforming the Rockefeller Drug Laws was a bad idea, is employing a novel tactic in their attempt to keep upstate prisons stocked with convicts: Let the real experts on incarceration speak! They've released an audio recording (below) of a prison inmate with "a 27 page long rap sheet" talking about the reforms on the phone. The DAs think the recording will prove that offering drug treatment instead of prison will be exploited by criminals like this unidentified man, who derides the new reforms as the "Drug Dealers Protection Law... They just gave me the free for all. You know what that means? I'm burning the streets when I go home."

Holy smokes, did you hear that part at the end? "The Beast is being created!" And it will rise out of the sea, having seven heads and 10 horns, and thousands of crack vials to get all your children hooked on the drugs! After hearing this expert testimony, it's obvious we need to lock up anyone caught with drugs forever, or at least until after the Apocalypse. Or do we? Jennifer Carnig at the NYCLU tells us that this inmate is shockingly misinformed, particularly when he insists "they got to prove you make over $50,000 a year, and they said that's hard to prove with no financial records." Below, the NYCLU response:

With regard to the $50,000 claim, that is patently wrong. The Rockefeller reform legislation creates a NEW crime of “Operating as a Major Trafficker.” In order to be found guilty of this NEW, very serious offense, a person must, among other things, be shown to have profited from a drug deal in the amount of $75,000. Nothing in the reform bill exempts any other offense related to selling drugs based on how much someone can be shown to have made as profit.

With regard to the claims about how easy it is to get treatment instead of incarceration, this is what the law provides:

1. Judicial diversion (treatment instead of incarceration) is available to those who are charged with a B-level drug-related offense or below, UNLESS: within preceding 10 years (excluding any time spent incarcerated), the person was convicted of a

  • violent felony offense

  • any other offense where merit time is not allowed (those convicted of sex offenses and non-drug A1 felons); OR

  • previously adjudicated a second violent felony offender; OR

  • if a violent felony offense is pending.

1. Someone who is eligible for consideration for judicial diversion must be assessed as having a substance abuse disorder. In order to determine this, the person must submit to an “Alcohol and substance abuse evaluation” which is a written assessment and report by a court-appointed entity or licensed health care professional experienced in the treatment of alcohol or substance abuse or by OASAS-certified counselor (CASAC), including:

  • an evaluation of history of substance abuse or alcohol or substance dependence in accordance with DSM IV and co-occurring mental disorder or mental illness if any;
  • a recommendation as to whether a substance abuse dependence could be effectively addressed by judicial diversion;
  • a recommendation of treatment modality; level of care, length of proposed treatment time; and
  • any other information deemed to be relevant.

What this means is that treatment instead of incarceration is only available to low-level, non violent offenders. If you’ve got a violent felony in your past, you are not going to be eligible for diversion under this law. Someone who is eligible for consideration for judicial diversion must be assessed as having a substance abuse disorder, and that’s a careful, deliberative decision made by a licensed professional.

DAs have a say in this process and can request a hearing before a defendant is diverted. The law requires that the hearing include an examination of the defendant’s entire criminal history and statements by any victims. In order to divert someone from prison to treatment, the court has to determine that jail time is not necessary to protect public safety.