Top New York Criminal Defense Attorney Advocates Treatment Over Incarceration for Small-time Drug Felons

NEW YORK, NY (October 13, 2008) -- Ashley O’Donoghue was the victim of an unfair system that denies judges the right to judicial discretion and treats most people who are arrested for a drug offense as if they were stereotypical drug kingpins like Scarface and Pablo Escobar, according to Steven Brill, a leading New York criminal defense attorney who advocates for reform that focuses more on drug treatment as an alternative to jail sentences.

Mr. O’Donoghue, who was sentenced to serve 7-to 21-years for a drug conviction, a penalty mandated by New York's controversial Rockefeller Drug Law, is part of a petition drive and education campaign that The New York Times recently reported is aimed at generating public support to urge the State Legislature to repeal the draconian laws.

“In December of 2004,” Brill explained, “then Governor Pataki enacted the Drug Law Reform Act, which slightly lowered most drug sentences and changed the mandated minimum terms for the sale of 2-to-4 ounces of a heroin and cocaine, an A-1 drug felony. But the new law did not restore judicial discretion, which was taken away by the Rockefeller Laws, or provide funds for community based drug treatment programs.”

According to recent government figures, most drug arrests in New York City are the result of buy and bust operations that target poor neighborhoods with high drug sale rates. Court papers show that some people have been arrested and put away for years for selling no more than a couple grains.

“In these types of sting operations,” Brill said, “the NYPD ends up targeting mostly addicts who sell drugs on the street to get more money to use. For these people, jail is not necessarily the answer on how to deal with drug crime.”

“Furthermore,” Brill added, “if a defendant had been convicted of a prior drug felony and was arrested a second time, the mandatory sentence was harsher than most sentences for people who had committed violent crimes.”

And who benefits by these overcompensatory laws?

“Certainly not the drug addict or small-time user/dealer,” Brill said. “You can’t even say that communities have benefited because the individuals who received these harsh sentences were not necessarily people who were likely to ruin communities. The only real way to benefit society is to provide treatment to these individuals so their addiction subsides.”

One of the major problems with the Rockefeller Laws, according to Brill, is that a person who was merely a cog in the wheel of a much larger drug organization was treated disproportionately from the real leaders and drug king pins.

“Under the old laws,” Brill said, “judges had no discretion to sentence a small-time dealer and user to a non-jail sentence like a drug program unless the district attorney gave it their blessing. The DAs office is a political branch of government and sometimes decisions and policies are made for political reasons and not to meet the ends of fairness and justice.

“This lack of discretion,” Brill charged, “is a slap in the face to our legal system. Judges are the only independent and objective body in a criminal case. It is more important in drug cases that judges be free to deal with defendants with a strict eye toward justice and fairness.”

Many studies have shown that drug reform since the adoption of the Rockefeller Laws has not produced a major change in prison population and it has resulted in the release of a smaller number of A-1 felony offenders than was anticipated. The legislature,” Brill advises, “should focus on taking some discretion out of the hands of the DA and set a quantity requirement for B felony sale cases, similar to federal law, so that small time sellers are not subject to disproportionately severe mandatory jail sentences.”

As a leading criminal defense attorney in New York who spends the majority of his time in court defending the rights of individuals who run afoul of the law, Brill once represented a woman who was charged with selling $40 worth of crack cocaine -- about four hits. It was her second similar offense in five years, and as a result she was facing a mandatory 31/2 -12 years.

“The woman was clearly an addict,” Brill said, “and her family had retained us to help. Our first task was to convince the DA that she was an appropriate candidate for treatment, not jail. After weeks of negotiations, we were able to present to the DA our client's job and education history, her family background and her clear substance abuse problem. The District Attorney, who basically wanted to lock her up and throw away the key, ultimately was persuaded by our argument and as a result we were successful in negotiating a deal where the client entered a drug treatment facility.

Upon successful completion of the treatment, the DA agreed to allow her to come back to court where her guilty plea would be replaced with a reduced charge. She got the help she needed, her family was happy and she stayed out of prison.”