by Jordan Elgrably
08.24.02

Darryl Best was doing some work at the Bronx home of his wife's elderly uncle, fixing an awning to make some extra cash, when a Federal Express truck pulled up with a delivery.

Best, an African American man and father of five children, signed for a package that had the correct address for his uncle-in-law, but when he examined the package more closely, he found it was addressed to a "Linda Williams." Best knew the Williams's indeed lived next door, but there was no "Linda," so he hurried down the stairs to get the driver's attention. It was then that the police nabbed him and charged him with conspiracy to traffic in cocaine.

On October 23, 2001, Darryl Best was convicted of a class A felony under New York's Rockefeller drug laws. Mandatory minimum sentencing will require Best to serve 15 years to life in prison, unless his case is dismissed on appeal.

"The police knew there were drugs in the package," says Best's wife, Wanda, who has been working with the New York advocacy group, Mothers of the Disappeared, to bring attention to her husband's case. "Whoever signed for the package is who they were going to arrest."

Police had a no-knock warrant to search the premises, but they never went in to check for other drugs, cash or drug paraphernalia. Wanda Best argues that the arresting detective lied under oath when he claimed that Darryl had a key to his in-law's Bronx home, and says the police failed to produce any evidence to prove his assertion.

Furthermore, police found no identification that connected Best to the Bronx location, because his residence is, in fact, on Manhattan's Lower East Side.

When the defense asked at trial why no audio-visual recordings whatsoever were made of the arrest, detectives said it was a "judgment call." In their experience, they claimed, drug dealers send packages to addresses and intercept them before they arrive at their final destination.

"In our opinion," says Wanda Best, "whoever sent the drugs must have singled out my uncle, because he's a 70-year-old man living alone, and the reason they used the next door neighbor's name is because their name was on the mailbox."

The package contained 16 ounces of cocaine. But all of the evidence, insists Best, led away from her husband. "At the trial, everyone, even the court officers, thought we would win. It was so clear he was innocent."

Drugs in the Year 2102

mericans reading one hundred years from now about the decline of the American empire and the "War on Drugs"-officially launched with the creation of the New York Rockefeller drug laws in the early '70s might understandably think that the "war" was a terrible idea.

But contemporary law-and-order politicians have no excuse-they've heard the public's sentiments about the failure of the War on Drugs; they've read the studies that show treatment is more successful and cost-effective than incarceration; they know the "War on Drugs" is a false panacea for a social problem, not a criminal one. Even former New York Senator John Dunne, one of the original proponents of the Rockefeller provisions, now calls the drug war "a well-documented failure."

There are more people imprisoned on drug charges in the United States than anywhere else in the world, with the possible exception of Colombia. The number of people in prison in the State of New York for low-level drug offenses now numbers 20,000, while in recent years California incarcerated up to 36,000 people a year.

But what's wrong with locking up drug dealers and kingpins?

In theory, nothing. But in practice, neither federal nor state law enforcement officials have been very successful in punishing the major players. As New York University Law School professor Inga L. Parsons explains, "When mid- and higher-level players are apprehended they often have more valuable information necessary to obtain significantly reduced sentences as a result of cooperation." So the big-time dealers are serving abbreviated sentences, while the most of those serving harsh sentences around the nation are low-level, non-violent drug offenders. Most are also people of color-this despite the fact that studies show the percentage of people using drugs is higher in white communities than communities of color.

Racial or Economic Profiling?

ationally, as Parsons points out, "Nearly three quarters of all defendants charged with drug offenses were minorities. [Nearly half] of the defendants charged with a drug offense in federal court were identified as "Hispanic;" 28% were identified as Black and only 25% were identified as white."

The statistics vary from state to state, but the problem remains the same. Bill Zimmerman, a political consultant working with California's Campaign for New Drug Laws, explains that "early 95% of drug felons in New York are African American or Hispanic."

"At every level of the criminal justice system, there's massive discrimination against African Americans, from arrest to convictions to imprisonment, and the percentage dramatically increases at each stage. We're doing initiatives in Michigan and Ohio similar to Proposition 36, and in those states, Ohio has a black population of 11.5% and 77.6% of those incarcerated in Ohio are black. So you see this everywhere. The drug war is a new form of Jim Crow."

Randy Credico, of the William Moses Kunstler Fund for Racial Justice, suggests that police concentrate by and large on poor communities of color, where most drug transactions take place on the street, and small-time dealers and users are easier to ensnare. "Why aren't they working middle and upper-class areas, where everybody's buying and using drugs behind closed doors?" Credico asks.

And Kathy Cantella, an L.A. County public defender, believes that the debate surrounding the War on Drugs should also center around class. "I'm wondering if this is a question of economic as opposed to racial profiling," Cantella suggests, "because sometimes clients don't have their own homes, they don't have a place to have drugs brought to them, or they're homeless-and therefore more available to the police."

Hard Time for Soft Crimes

roponents of the Rockefeller drug laws these days are largely a solid bloc of law enforcement agencies, corrections officers and district attorneys, who still argue that the War on Drugs is working to keep violent crime down. Crack cocaine and other hard drugs, they say, are at the center of violent crime, so locking up the low-level dealers is one way to make the streets safer.

But a recent Human Rights Watch report revealed that three out of four drug offenders-more than 77% of those sent to prison nationwide-had never been convicted of a violent felony. And one in three had no prior felony convictions for any crime.

Albany's District Attorney, Paul A. Clyne, who serves on the executive committee of the New York State District Attorneys Association (NYSDAA), argues that while he's prepared to spend more money on drug treatment for lower-level offenders, the War on Drugs is working. "There's no question in my mind that index crimes drop proportionate to the increase in felony drug arrests; when felony arrests go up, the index of other incidence crimes go down," he says. Clyne bases his assessment, in part, on an Albany Law Review article by Thomas Constantine, former superintendent of the New York State Police, who continues to argue against reform of the Rockefeller drug laws, despite heavy lobbying by citizens groups and the shifting tide of public opinion.

Clyne points out that New York district attorneys are willing to discuss reforming the mandatory minimum sentencing requirements for class A felonies-the tough legislation that obliges judges to slap even some first-time offenders like Darryl Best with 15-to-life sentences. But the NYSDAA won't hear of amending stiff sentences for class B felons imprisoned for drug sales.

"In New York, if you sell a sugar-packet worth of heroin or cocaine or any other controlled substance, that's considered a B felony, punishable with the same level of punishment as a person charged with a violent felony, like manslaughter or rape," says Deborah Small, of New York's Drug Policy Alliance. Because of strict sentencing guidelines, most class B felons serve out more than 85% of their sentences.

"So you have people charged with violent felonies," Small adds, "who get out of jail earlier than repeat drug offenders, who may have sold $50 worth of drugs. And it costs the state $33,000 a year to keep them behind bars."

Indeed, a recent study by Rand's Drug Policy Research Center confirms that treatment is far more cost-effective than mandatory minimum sentencing, and that treatment reduces 15 times more serious crime than stiff prison sentences. While it costs over $30,000 per year to house a drug offender in New York State, drug-free outpatient care runs $2,800-4,600 per year, and residential drug treatment ranges from $18,000-22,000 per year.

California: Less Time Behind Bars, Under Worsening Conditions

rug offenders in California are faring somewhat better than their New York counterparts since the passage of Proposition 36, which went into effect on July 1, 2001. Prop. 36 provides treatment services for drug users, rather than prison time, but it excludes anyone convicted of drug sales or conspiracy to sell.

Dan Abrahamson, director of legal affairs in the Drug Policy Alliance's Oakland bureau, was one of the authors of Prop. 36. He describes himself as a concerned citizen, taxpayer and social justice lawyer who was finally motivated to push for Prop. 36 when he recognized "the failure of prisons and jails to deal effectively with drug abuse."

Prosecutors contend that most of those serving time are in for drug sales as opposed to mere possession. Abrahamson replies, "Frankly, that's what prosecutors always say, but when you look at the relatively small amounts involved [in the average drug arrest], they're selling in order to support their own habit, and the underlying problem that's driving the low-level drug sales and incarceration is the problem of addiction."

Today, the success story of Prop. 36 provides ample evidence that public opinion is shifting away from support for the War on Drugs. Last year, 61% of California voters approved the initiative, even though all but one of the major newspapers opposed it, as did Democratic Governor Gray Davis, Attorney General Bill Lockyer, and most of the state's judges, prosecutors, police chiefs, probation officers and prison guards.

"In the face of that unified opposition from the criminal justice system," Abrahamson points out with satisfaction, "the fact that 61% of the voters passed it shows that the people of California have recognized that the use of jails and prisons to deal with drug offenders is a failed policy."

So is the War on Drugs effectively over in California? L.A. County public defender Kathy Cantella doesn't think so. "I think if the state wanted to end the War on Drugs on drug users, the statute would have been written differently." she says.

Despite the relief that Prop. 36 has brought to drug users seeking help in California, says Bill Zimmerman, of the Campaign for New Drug Policies, in July, he points out, a man in Northern California was sentenced under federal law to ten years in prison, because he was growing marijuana for a group of patients who were legally using it under California's Medical Marijuana Law. The man, Zimmerman recalls, got a longer sentence than many people convicted of manslaughter or rape.

Bitter Pills

arryl Best has been married to his wife Wanda for 23 years. They raised five children together on the Lower East Side. But what began as a nightmare doesn't have to end that way. Best may be one of the fortunate few to receive relief on appeal.

The New York-based law firm of Skadden, Arps is now representing Darryl pro bono, and Wanda Best's personal advocacy with the Mothers of the Disappeared has earned attention from the broadcast media. At trial, while the jury was out, Wanda says the general consensus was that Darryl would win.

But when the jury foreman read the verdict, a loud sigh went up in the courtroom. "It was the most remarkable thing you could have ever seen," Wanda recalls. "The whole courtroom, except for the assistant DA and the judge, was [in tears]-the court officers, the court stenographers, the clerk. Everyone was crying hysterically. Even the judge knew that he was sending an innocent man to jail. He said that he wished to God there was something he could do, but the Rockefeller law had tied his hands."

A version of this article originally appeared in CriminalDefense Weekly, Issue 13, July 29-Aug. 14, 2002, and has been adapted with permission.

Reproduction of material from any LiP pages without written permission is strictly prohibited | Copyright 2002 LiPmagazine.org | info@lipmagazine.org