When you get down to it, what’s at stake is this - a brilliant spring afternoon.
“I just want to comment, it’s so beautiful and I’m so lucky to be out here enjoying this weather,” says Nancy.
Nancy is leaned against the wall of the Riverhead courthouse on Eastern Long Island. She’s smoking a cigarette and looking out onto the sun-bleached courtyard. She’s 19 and has a tattoo of dollar sign on her neck. Money was why she got into drugs.
“Made money. Fast money. It’s addicting. All I did was drive around and sell drugs. I’ll always remember that first 10 dollars I made. I was selling weed at the time. Then it escalated to pills, then I was selling crack. I was selling crack for a little while and then someone introduced me heroin and the money that I made from that was ridiculous and I just couldn’t back. I was making a thousand dollars a day. It was ridiculous money,” says Nancy.
Nancy is not her real name, WSHU allowed her anonymity so she can speak freely about her crimes without fear of repercussion. She was arrested in Suffolk County for selling heroin three times to an undercover cop. She says she sold it out of her SUV like it was an ice cream truck. When Nancy was picked up, she got lucky. The state legislature had just enacted the new judicial diversion program. It made her one of the first people to be sentenced under a set of reforms that gave judges the discretion to send non-violent felons to treatment instead of prison, even if the district attorney objected.
37-year-old James Roche was not so lucky. His attempt at getting diverted from prison to treatment under the Rockefeller reforms failed. And now he’s here in Bare Hill Correctional Facility in Malone, New York. Roche was arrested for selling cocaine about the same time as Nancy. But while Nancy’s judge sentenced her to drug treatment with minimal supervision, James got 2 years behind razor wire a few miles from the Canadian border. “This is a scary place, this is a nightmare, this is extreme fear. You know, people get cut on the walkway regularly. There’s always fighting going on,” says Roche.
James is small with delicate features, hollow checks, and a tattoo of Christ crowned in thorns on his forearm. He says he got started using heroin after he ran away from home at the age of 14. “There was a couple of female prostitutes that were older than me and would try to be motherly to me. Trying to feed me and trying to keep a little bit of a roof over my head, you know cause we slept in abandoned buildings. One night one of the female prostitutes offered me some heroin and I fell in love with it,” says Roche.
James’s criminal record is long. Burglaries, thefts, assaults, and a number of drug possession charges. James was arrested twice, for selling coke to a criminal informant and an undercover cop. He applied for diversion, but the judge, Gerry Scraano, refused. Roche says, “He was just angry at drugs being sold in his county. I don’t think he looks to light on drug addicts.”
Nancy and James are examples of how disparately the new judicial diversion program has been implemented across the state. Nancy for example claims to be addicted to marijuana - which some say is the least addictive drug. By her own account she reaped substantial profits while dealing heroin. In Suffolk County, where she was granted diversion, 40% of those who were screened also got diversion in the first 6 months of the program. On the other hand, James has a long history of hard core drug use but he was convicted in Saratoga County where only 20% of those screened received treatment. Two people, two separate judges. The person addicted to making money from drugs got out of going to jail and was sent to treatment. The person addicted to drugs wanted to go to treatment but was sent to jail.
According to statistics collected by New York’s Office of Court Administration there is a wide range among jurisdictions in the percentage of people enjoying the benefits of judicial diversion. Albany County for instance grants diversion to more than 60% of those who were screened. Meanwhile 35 other counties have single digit participation rates.
Chief Administrative Judge Judy Klueger says the disparity is democracy at work with judges tailoring their decisions to the communities they serve. Klueger says, “There may be a difference in implementation, people elect their district attorney’s and elect their judges and that’s how they have a voice in what happens. There are senses of public safety depending on where you are in different parts of the state and that can inform how law enforcement handles particular cases as well.”
When Allan Rosenthal looks at the non-uniform implementation he sees judges still reluctant to use treatment as a solution to drug crime. He’s been an advocate for drug law reform and is counsel for the Syracuse-based Center for Community Alternatives. Rosenthal says, “I don’t know that anyone would say that that’s fair. The problem is that it is a human system. It’s going to take time for some jurisdictions to catch up with others. I don’t think that any jurisdiction wants to be left behind in the stone age.”
But others say the reason the Rockefeller reforms have been implemented differently is because jurisdictions are starting from different places. Bridget Brennen, special narcotics prosecutor for New York City, says many prosecutors had already created their own successful drug courts and sentencing alternatives before the recent reforms. Brennen says, “ I wouldn’t be surprised if my overall number of defendants in treatment actually goes down.”
The reason being, according to Brennen, along with diversion the Rockefeller reforms also reduced the minimum sentences making an 18 month treatment program look a lot longer and harder. “Now they’re looking at a diminished penalty. And so now they’re saying to themselves, you know what – I’d rather do my 90 days in, I’d rather do my 9 months and get back to my drugs than go through one of these rigorous treatment programs,” says Brennen.
James Roche says that’s not the case with him. He says he desperately wants to stay clean. When I told him about Nancy he grew solemn and looked down at the tattoo of Christ on his arm. “She could be like me right now, sitting behind bars and not having freedom and worrying about her life. I hope see looks at that and takes the help they’re giving her,” says Roche.
Since being diverted from prison Nancy has admitted to her judge that she sold heroin in her treatment center. The judge gave her a second chance and sent her to another treatment center.
Charles Lane will be following James, Nancy and others over the next year to see how they progress so, be sure to check in for updates. You can listen to other stories in this series, online at www.wshunews.org