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An editorial in the New York Daily News, “Saying Yes to Drugs,” recently warned us that

a new bill designed to reform New York’s infamous Rockefeller drug laws and passed in the

Assembly, “would push New York dangerously close to decriminalizing even hard-core drugs.”

It dubs the legislation, “The Drug Dealer Protection Act” and then enumerates the bill’s horrors,

which add up to a “game of Russian roulette.” We should all be scared to death, unless we

actually knew that criminalization of drugs, even the really hard core ones, produces the actual

crime of which we should be afraid.

Decriminalization of drug use, abuse, and petty possession is the very heart of drug law

reform; it is no secret. Reformation of the Rockefeller laws entails reduction of draconian prison

sentences, restoration of judicial discretion in sentencing offenders, and the realization that drug

use and addiction is a medical rather than criminal problem. The Daily News, however, would

have you believe that the bill is somehow disingenuous about its decriminalization intentions

because “only a close reading of the measure reveals that little-understood provisions” would

result in decriminalization. This is a scare tactic.

Among the “little-understood provisions” is the elimination of the statutory mandate that

imputes knowing possession to anyone present in a dwelling or vehicle containing narcotics,

regardless of who actually owns the drugs. According to the law, presence alone is “presumptive

evidence” of possession. A presumption permits juries to deduce that a defendant knowingly

possessed the substance due to his mere presence in the automobile or house, absent proof of

actual possession. This presumption is an evidentiary advantage for the prosecution, who must

prove every element of the crime, because it is a shortcut in the proof, and an evidentiary

disadvantage to the defendant, who must rebut the presumption in order to counteract its

persuasiveness. This places the defendant in the unconstitutional position of proving his own

innocence, which is presumed.

The Assembly bill replaces the presumption standard with “permissible inference.”

Under the permissible inference standard, juries are permitted but not required to infer

possession from presence. Essentially, this is an attempt to eliminate the guilt by proximity that

the old standard imputed. The Daily News classifies this as one of the bill’s “many dangerous


The only danger is that defendants will no longer take the rap, as did Lance A. Marrow,

for drugs that do not belong to them. In the case of Mr. Marrow, who received 15 years to life

for possession of drugs that belonged to his roommate, the sentencing judge said, ‘I am required

by law to impose a sentence that in my view you don’t deserve.” The Daily News however,

bemoans that district attorneys would now have to persuade juries the old fashioned way – with

actual evidence of the defendant’s guilt. It fails to acknowledge the existing law’s promulgation

of wildly inequitable cases such as Lance Marrow’s.

The Daily News’ histrionic characterization of the Assembly bill as one that “would

eviscerate the power of law enforcement to combat thugs who terrorize New York’s poorest

neighborhoods” is subterfuge designed to obscure the fact that a penal approach to drug policy is

an abominable failure, in terms of combating drug use. It is a blazing success however, at

generating a profitable economic sector for the state. Prisons produce jobs, especially in

communities where nothing much else grows. And within those prisons are downstate denizens

who count as constituents for the purpose of drawing a senatorial district, most of which are

occupied by Republicans.