Drugs and the Law
By Erica D. Harrison, CPP

Summary of a presentation by The Honorable Bridget G. Brennan at The New School University, Center for New York City Affairs, New York City, Friday March 10, 2006:

I’m going to ask you to keep an open mind because what you will hear from me is a different perspective than you’ve heard from others… And it’s not that we don’t all share a passion for justice, a passion for improving the City, and a passion for doing the right thing…

I’m a prosecutor. I’ve been a prosecutor for 23 years. I see you shaking your head, saying, “I know you. I know who you are.” But I have dedicated my career to improving things in this City. I started out as an Assistant, handling misdemeanor cases in Manhattan. I went on to handle sex crime cases and homicide cases. And I handled homicide cases in the 80s and 90s, when the crack epidemic was at its height. And I saw case after case after case of young people dying over crack.

They were dying because the people who killed them were high. They were dying because they were fighting over a spot [on the street to sell]. Time after time after time, it was crack… I wasn’t here in the 70s when the heroin epidemic hit. But I know that parts of this City were completely devastated by heroin… We saw the same thing with crack.

My tools were prosecution tools… I was involved in homicide prosecution but I knew that I wasn’t getting at the problem. I knew that I had to reach further. I transferred over to the Office of Special Narcotics... and I started prosecuting high-level narcotics offenses. My office originated during the heroin epidemic to address the problem of narcotics trafficking in New York City. We handle about 4,000 felony narcotics cases every year. And when I say, “Felony” I don’t mean user amounts. I mean is …selling drugs …“Narcotics” …cocaine and heroin. Marijuana is not a narcotic drug.

We handle more high-level cases than any other prosecutor in New York State. We have been staunch advocates of drug treatment. Along with the Brooklyn D.A.’s office, we pioneered alternatives to incarceration programs, because we saw no point in incarcerating people who are selling drugs to support their own habit. But what we did see was you could use their fear of going to prison as a way to motivate them into treatment. I’ve heard some drug defendants say that getting arrested was the best day of their life, because the only thing they wanted to do less than stop using drugs was go to prison. And when they were facing that threat of state prison, they were finally able to turn their lives around. Finally.

We took a risk at that time…about 13 years ago. We were among the first prosecutor’s offices in the country to become involved in a treatment alternative… we saw the need …and how effective it can be. We diverted thousands of people to treatment, instead of prison. I’m proud of that.

But what I have to tell you is that what we see primarily is not people selling drugs to support their habit. We see people selling drugs because it’s fast money.

They don’t have a great education. They don’t have great economic opportunity. They sell drugs, because it’s a way to fast money. And we continue to see plagued neighborhoods. This problem is not gone. We’re still getting calls that: ‘there’s drug dealing going on, on my doorstep. I don’t want my kid walking past it. My kids walk to school every day.’

People fear that when their kids walk past drug dealers, they are going to get sucked into it. And not just sucked into using drugs. Drug dealers use kids. No surprise. And people in the community don’t want their kids doing that [pushing drugs.] They don’t want their own kids involved.

I hear from communities across the City: “Get those drug dealers off my street corner, lock them up and do it now.” I am dedicated to New York City. I’ve been here for a long time now and I am proud that things have improved.

We cannot incarcerate our way out of the drug problem. It has to be addressed in a different way. The drug problem and the problem of addiction, is about people needing a good reason not to do drugs. They need other good choices. They need a good reason not to sell drugs. And we are not going to incarcerate our way out of that.

What I can tell you is that narcotics goes hand-in-hand with violence. We’ve seen it time
and time again. It goes hand-in-hand with other crimes. When we get a call from a community, the only solution we have, frankly, is to lock people up. Treatment programs aren’t going to affect high level sellers; they are not addicted. Law enforcement is the last line of defense.

The first line of defense - improve City education

The drug law revisions that became effective in January 2005, eliminated life sentences for all drug offenders and decreased sentences for all narcotics offenders. The revision increased the amounts of narcotics necessary to prosecute the top narcotic offenses.

I’m a prosecutor and the devil is in the detail. You give me a statute, I prosecute the statute. I’m not elected. I don’t make the laws. I prosecute the laws -the two top-level narcotic offenses in New York State. One is an A-1 Felony …the sale of 2 ounces or more of a narcotic drug, meaning cocaine or heroin.

2 ounces sounds like nothing, right? But in a vial of crack or a glassine of heroin, the amount of narcotics is measured in grains. A measured of weight, 2 ounces of coke or 2 ounces of heroin, becomes about 2000 glassines or vials. You don’t see users with that amount…

The amount of drugs required for a possession offense was raised to half a pound of cocaine or half a pound of heroin or selling two ounces! And the sentences were brought down. The range of sentence now for a first-time person convicted of the top narcotics offense, is between 8 and 20 years.

The statute also decreased prison time for all offenders and increased the amount of time offenders can get off while they are in prison. It gave the judges opportunities to direct people into treatment while they are in prison. It also provided re-sentencing of all those currently in prison, serving life sentences.

The intended results were lighter sentences for non violent, low-level offenders, and rightly so. But most people that we looked at did not match low-level criteria. Most had prior violent felony offenses. They had been convicted or implicated in some kind of a violent crime. [Of the approximately 25% handled by my office of the 270 prisoners affected by the revision,] we had nine involved in homicides and serious assaults that left the victims paralyzed. We had twenty three kingpins, what I would call major traffickers… people moving thousands of kilograms of cocaine. And that was only one type of kingpin.

The other group of offenders destroyed neighborhoods in the 80s. They took over buildings in sections of Harlem and the Lower East Side; trafficked thousands of vials and
glassines from those buildings. There’s a lot of money to be made [selling drugs.] Frankly, I think you need a stiff sentence to let those people know it “ain’t worth it.” The legislature went further …they extended re-sentencing to the next level down, the A-2 offenders, the plead downs, those who plea bargained their cases. Originally they were charged with A-1s but the sentencing range on an A-2 began at 3 years to life. Most offenders took the plea if offered.

Frankly, we heard the message. We heard that people thought too many people were getting 15 years to life. And a lot of times we agreed. However, under the revision, only the most serious offenders or those who had prior convictions, were actually eligible to be re-sentenced. It seemed to me we were accomplishing the opposite of what the legislature intended.

Some of our defendants who have applied for A-2 re-sentencing are people with convictions for possession of 70 lbs of cocaine, a loaded 45 caliber; possession of 715 lbs of cocaine and 25 lbs of crystal meth.

Most of the defendants we prosecute are for B Felonies, selling drugs. Of approximately 2,500 we prosecuted during the year that this [reform] has been in effect, only 315 received sentences of more than a year in jail. Understand that this is a critical statute for prosecuting the people who ruin neighborhoods. To make money selling $5 vials of crack, you are going to have to sell a lot of them.

And if that’s going on in the building next to you it destroys the quality of your life.

Of those we sent to state prison, 89% had prior felony convictions. Only 36 that we sent to state prison were first felony offenders. We sent twice as many first-time felony offenders to treatment as to state prison. And almost half our prison sentences were 2 years or less.

There is also a push for expanded judicial discretion. My fear is that you are going to see widely inconsistent results, shaking confidence in the judicial system. In New York City, we have concerns about the way judges are selected and the current method has just been found to be unconstitutional. There have been all these scandals involving judges [that undermine confidence as well.] Throw the doors wide open and let the judges do as they think appropriate, and you are going to see inconsistencies, based on their different perspectives. It will make people think that the system is unfair.

Why do I think that, because it is what actually happened in the 70s. A New York Times series at that time highlighted sentencing disparities –differences in sentences for the same crimes. These findings were part of what substantiated reforms known as the “Rockefeller Drug Laws,” actually Section 220 of the Penal Code. Prior to that, the judges were allowed complete discretion. And sentencing disparities do increase as judges are given more and more discretion.

The New York Times ran a series back then. One article said: Today, many in the courts call sentencing “chaotic.” The Chief Judge in New York State, head of the Court of Appeals, said: “Sentencing should be taken away from judges.” The Legislature then established sentencing ranges. That is the approach we want: the Legislature should take responsibility for setting appropriate ranges. Then let judges determine appropriate sentences within those ranges.

It is a tough issue on which people feel passionately but I want you to know that we are all committed to making things better. And I will promise you that I will open my mind too, as I have been reviewing cases of people who have been in prison, and their violations. I wish there were a better way than incarceration. Maybe we will come up with it.

Thank you very much.

Bridget G. Brennan, the city’s special narcotics prosecutor: “I’m not going to stand here and tell you that we can incarcerate our way out of the drug problem. But let’s not fool ourselves. Many who land in jail are not poor schmoes caught with a few grains of cocaine. Narcotics go hand in hand with violence… It goes hand in hand with other crimes.”

Erica D. Harrison, CPP, Security Director at Guardian Security, Inc. and President of AIMS Testing Inc., has been working with the New York City chapter of ASIS International since 1985. She has produced and moderated the seminar programs for the chapter trade show since 1990, and she writes extensively on security issues affecting chapter membership. A former Assistant Regional VP, Erica holds a bachelor’s degree from SUNY Stony Brook and a master’s from Greenwich University.

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