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Ashley O’Donoghue is a low-level, nonviolent offender currently serving a 7-to-21-year sentence for the sale of 2 1/2 ounces of cocaine. In September 2003, the Oneida County district attorney claimed that the 20-year-old was a major drug kingpin and needed to face a life sentence under the Rockefeller Drug Laws.
Reacting to a commonly used scare tactic, O’Donoghue agreed to a plea bargain. His A-1 felony, the highest possible felony, was reduced to a B felony. Like magic, O’Donoghue was no longer a kingpin – that is, a drug dealer distributing extraordinarily large quantities.
There are thousands of defendants just like O’Donoghue, whom prosecutors claim are kingpins one day and then, through plea negotiations, kingpins no more.
I went through the same experience in 1984 when I was arrested for the sale of 4 ounces of cocaine. A Westchester assistant district attorney claimed I was a major kingpin. But in the months that followed he offered me a plea bargain of three years to life. He told me if I refused the offer I would not see my 7-year-old daughter until she was 22 years old. This really frightened me, and I did not want to leave my family alone.
I decided to go to trial and was convicted and sentenced to 15 years to life. In 1997, after serving 12 years, I was freed by Gov. George Pataki through executive clemency.
Recently, a report released by Bridget Brennan, New York City’s special narcotics prosecutor, proclaimed that kingpins and people convicted of high-level drug offenses are being released under the new Rockefeller Drug Law revisions. The report, titled "The Law of Unintended Consequences," is a lopsided review of the Drug Law Reform Act of 2004. The modest changes to the Rockefeller Drug Laws have allowed approximately 1,000 people convicted of A-1 and A-2 drug felonies to apply for resentencing. The controversial findings in the report bolster Brennan’s final conclusions: a clarion call for a kingpin statute and opposition to any additional reforms to the Rockefeller Drug Laws. Critics quickly questioned the validity of the report, claiming that it contained skewed data and its creation was politically motivated.
The report is questionable in many aspects, but I agree with Brennan on one point: New York needs a kingpin statute. Allowing prosecutors to define this term has meant that people like O’Donoghue and me are kingpins one day but not the next. New York needs a clear and reasonable kingpin statute that can be applied to real kingpins – bona fide major traffickers – not people convicted of low-level offenses. The kingpin statute that Brennan calls for is both unreasonable and incompatible with justice, because it is so broad.
Brennan’s report highlighted 84 drug cases handled by her office, with 65 applicants receiving judicial relief under the new law. Contrary to Brennan’s tabloidlike insinuation that the prison gates just opened up, each prisoner seeking resentencing had to go through a lengthy application process in order to see a judge for resentencing.
Right now there are almost 4,000 B-level felons serving time in New York State for low-level, nonviolent drug offenses for small amounts of drugs. Many of the defendants have drug-addiction problems. These thousands of offenders are not classified as kingpins. So why would Brennan actively oppose reforms to release them? It costs taxpayers millions of dollars to incarcerate these people when community-based treatment costs less and has proved more effective than incarceration in treating addiction.
Brennan needs to be reminded that the governor, State Senate and Assembly leaders agreed reforms were necessary to equally balance the scales of justice in applying the law with the needs of protecting our communities.
To cause a panic by releasing a questionable report is nothing more than additional punishment for those incarcerated and an underhanded political tactic to stop further needed reform. If Brennan wants a kingpin statute, let’s fashion one for real kingpins, not for the low-level offenders.