Good news, bad news: New York’s drug law reform and collateral consequences

The Vera Institute has issued a first-rate assessment of the effect of the Rockefeller drug law reforms in New York City.  See End of an Era?  The Impact of Drug Law Reform in New York City.   The report found that as a result of the reforms far more people were diverted out of the justice system and into treatment, thus avoiding conviction and the attendant collateral consequences.  On the other hand, for those not diverted, the report found that the repeal of mandatory minimums led prosecutors to look for other ways to leverage plea bargains, leading to more felony convictions and more severe collateral consequences than under the old laws.  Sentencing reformers in other jurisdictions should take note.

Vera researchers found that drug law reform led to a 35 percent increase in the rate of diversion among eligible defendants, though its application varied significantly among the city’s five boroughs.  The report also found that while judges now have authority to order diversion over the objections of the prosecutor, they rarely do so.  Diversion delayed or prevented further involvement in the justice system, leading to a significant reduction in recidivism rates:

36 percent of a sample of defendants who received treatment following the reforms were re-arrested within two years, compared to 54 percent of defendants who were sentenced to prison, jail, probation, or time served before the laws changed.

 

Racial disparities were cut in half as well, though disparity remains.

Researchers found that the repeal of mandatory minimums had a darker side as well, in encouraging more severe treatment of those who were not diverted, in both charging and plea bargaining:

Defendants arrested in 2010 for a B felony drug offense—the most common charge by far—were much more likely to be indicted and convicted of that crime when compared to cases originating from 2008 arrests. In 2008, prosecutors were more likely to offer defendants arrested for the same crime a lesser charge, possibly in an effort to persuade them

to plead guilty and avoid a mandatory minimum sentence. In the samples of matched cases analyzed as part of this study, the number of people convicted of a B felony drug crime after the reforms were in place increased by a factor of 2.6, a change that is statistically significant.

The report concludes that “[t]his trend raises concerns because of the effect that having such a serious criminal record may have, for example, on housing or employment opportunities or for future sentencing decisions, if the person is re-arrested.”

New York’s experience implementing an admirable sentencing reform agenda offers a cautionary note for reformers everywhere: it is not enough to repeal mandatory minimums and divert more people out of the criminal justice system.  It is essential also to address the impact of collateral consequences on those who remain in the system.

Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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