It’s always hard to second-guess a state sentencing decision based only on press reports. You don’t know the details of the sentencing scheme, or the details of the factual findings. But I wonder what sentence this defendant would have received if she had been an African-American male who had dropped out of high school?
UPDATE: Brooks Holland weighs in with a very helpful comment here.
maybe the better issue is which sentence is the unjust one? her slap on the wrist? or the long term incarceration that the african-american drop out would face? should she be punished more? or him less?
It is dangerous to judge case dispositions from new reports. The article emphasizes this defendant’s charges as primarily “pot” charges. In New York State marijuana sales, even as a felony, are graded less severely than narcotics sales, and non-jail dispositions are generally authorized for first felony offenders. In New York City, marijuana offense are treated with even greater disposition flexibility as a matter of practice. This defendant apparently also was charged with cocaine, LSD and other more serious drug offenses. But, her asserted exposure to “25 years in prison” indicates that these offenses did not involve large amounts chargeable by weight, and instead probably were charged as a class “B” drug felony. See NY Penal Law § 220.39(1). In New York, while this offense does carry a maximum penalty of 25 years even for a first offender, the minimum sentence is one year, see NY Penal Law § 70.70(2)(a)(i), and courts and prosecutors in these cases agree to treatment dispositions that permit many of these first felony, non-violent offenders to avoid jail if successful in an approved program. Indeed, in many cases, successful completion of treatment will result in a misdemeanor final disposition or even a dismissal of the charges. Here, the defendant apparently still has a felony conviction with 5 further years of probation. Therefore, although disparate sentencing remains a very troubling feature of the criminal justice system, including in New York, in this instance I am not inclined to view this defendant’s disposition is an example. Any residual doubt, I would suggest, is resolved by the identified presiding Trial Justice, in front of whom I have appeared many, many times. He is very diligent and thoughtful, not to mention no defense pushover on sentencing, and I cannot imagine him signing off on this no-jail disposition without a solid basis for doing so.
Of course, the Post and the Daily News cannot help but sensationalize when the opportunity presents itself!
It seems to me that Orin’s comment remains standing (albeit a little wobbly) even after Brooks’ enlightening comment. Specifically, rather than wondering what sentence the defendent might have received, how about wondering what *charge* the defendant would have received “if she had been an African-American male who had dropped out of high school.”
I have been defending drug cases in Utah for over forty years, and I would say that a teenage, black male, college student with no record and under the same circumstances would most likely get straight probation. Twenty years ago it would have been a sure thing, with a judicial pardon at the end. However, the sentences get harsher all the time as the media (including this blog??!) apparently demand tougher penalties all the time even for victemless crime.
If what Brooks said is true (and everything I’ve seen him post elsewhere has been legit), then this case would seem to fall into the category of sentencing disparies caused by secondary effects. A lot of poor African-American drop-outs would never get this deal, not because of their social status qua social status, but because they would likely not have the resources to attend threapy and drug treatment programs. So it’s not necessarily the criminal system that has failed people who don’t get these deals: It’s the social systems that don’t empower people to better themselves, and the school systems that have failed to educate so many.
So the sentencing disparities this case likely illustrate is indeed a tragedy. The issue is, Who are the villans?
I have seen a lot of NY State rap sheets, the vast majority of which belong to people with far more meager resources and humble backgrounds than Ms. Diaco, and I don’t think her sentence is at all surprising. First time drug offenders in NY State Court rarely receive actual jail time unless violence or really large amounts are involved (and both of those factors would tend toward the case being taken to federal, not state, court, where heftier sentences would be in play). People who peacefully sell small quantities of drugs for a living all over NY are arrested every day and get sentences very similar to what Ms Diaco received.
Moreover, I don’t think the primary issue helping Ms Diaco is race or gender — it’s class, because this is what allowed her to have as her counsel a former chief of the criminal division at the USAO-SDNY who happens to also be a professor at Columbia Law School (where he is much sought-after evidence instructor) and former Supreme Court clerk. Guys w/ those creds show up in NY Supreme on drug cases quite rarely. Having a knowledgable and energetic lawyer who has meaningful time to spend on the particular case (in contrast to the majority of state court criminal practitioners who are managing massive dockets and trying to keep their heads above water) is the greatest predictor of a lower sentence, in my humble opinion, because state court prosecutors don’t have the time or energy (generally) to want to tangle with the Paul Schectmans of the world unless the case is of real importance, which this one obviously was not. Being able to retain someone like that can make a real difference, though in this case I think there’s a high probability that Ms. Diaco would have gotten the same sentence had she qualified for and been appointed counsel. (I should note that to Schectman’s credit, he is just as energetic when he is appointed counsel as he is when he is retained.)
Please allow me to close the italics tag.
Mike and STG make interesting and I think related points. Although in my experience not every drug-treatment sentencing decision I’ve seen has been consistent or always even rational, the New York City prosecutors’ offices and specialized drug treatment courts now offer a pretty robust set of treatment programs to eligible offenders to help them work on their problems and avoid jail, including individuals of limited or virtually no means. In New York, even some second-felony drug offenders stand a decent chance of securing a treatment alternative to jail (ironically, the misdemeanor or dismissal post-treatment disposition is perhaps more common with second felony offenders, simply because probation isn’t an option on a second felony conviction). Some cases are tougher sells than others, though, particularly for those defendants with multiple needs beyond classic substance abuse or who have even a misdemeanor record of past violence. Even the hardest-working public defender, with 100+ cases and a social worker he or she must share with 20 or 30 other attorneys, lacks the resources to push every angle on the close cases that a privately retained, high-profile attorney like Paul Schectman might have at his or her disposal. And, even if the sentencing pitch is successful, if the client’s special case requires a treatment program usually not available through the court or prosecutor’s office–such as a combined mental health and drug treatment facility–clients of means simply will have more options available to them than a client limited to public services.
So, while race and gender do contribute to sentencing disparities, I agree that socio-economic status is another critical factor, both here and in other aspects of the criminal justice system.
As a former NYC prosecutor I can tell you that most first-time felony level narcotic sale defendants are offered drug treatment rather than jail time. The exceptions come if there is a history of violence in their past, or as here, a long-term narcotics investigation.
What surprised me about this result is the amount of resources that went into this particular case. Most sale cases are the result of a one and done buy and bust, or an observed sale. Here, apparently, there was a long term investigation of this defendant; usually, these investigations result in either longer, harsher sentences, or are used to flip the defendant to move up the ladder. I can only conclude that the hiring of Paul Schectman played a part in her sweetheart deal, because most other defendants in the same situation would have had a much stiffer sentence.
Furthermore, she had at least eight counts of sale–she could have faced consecutive time on each. That’s a hell of a hammer to only get DTAP and probation…