Newsday / News 12 Special Report

Whites on LI are far more likely than minorities to receive a lighter charge and penalty in drug cases, records show

Danielle McNerney, who is white, and Michael Abraham, who is Hispanic, both have a history of hard drug use. Both were charged with drug possession by Suffolk County police.

But that’s where the similarity ends.

McNerney went home after drug-free therapy, while Abraham, like many other minority defendants, says he didn’t know about such an option. Instead, he got probation. Four years later, he wound up in jail on a felony possession charge.

These different outcomes reflect the racial disparity in Long Island’s system of dealing with criminal drug possession, a Newsday investigation shows.

Overwhelmingly during the past decade, whites on Long Island were far more likely than minorities to receive a lighter charge and penalty when arrested by police for possession of marijuana as well as controlled substances such as heroin, cocaine and illegal pills.

At the same time, blacks and Hispanics had nearly double the rate of whites in facing more serious felony charges and jail time for drug possession, according to an analysis of court records from 2005 to 2016.

Last year, Long Island hit a new milestone with drug arrests. More people were charged with drug possession than any time in more than a decade, jumping from 6,243 arrests in 2005 to 8,070 in 2016 — a 30 percent increase.

While marijuana arrests steadily increased by 10 percent during this time, possession of heroin, cocaine and illegal substances soared by 40 percent. Over the past decade, the racial disparity in drug possession — a common charge in pull-over arrests by Long Island police — can be found in these numbers.

On Long Island, 85 percent of whites picked up for possession of heroin, cocaine and other controlled substances since 2005 were charged with a misdemeanor. That is the lowest charge of its kind, often resulting in a fine or eventual dismissal. Few went to jail.

Meanwhile, blacks and Hispanics made up nearly two-thirds of all those charged with felony possession of a controlled substance, which can mean years in prison if convicted.

Newsday also found a similar racial pattern with marijuana — a common offense among those pulled over and arrested by Long Island police.

Disparity in drug arrests

Though addiction experts say marijuana use is the same among whites and nonwhites, records show 60 percent of marijuana possession arrests in Nassau in the past decade were minorities and 50 percent in Suffolk — a rate far above their proportion of the general population.

“With some degree of regularity, whites are getting the benefit for being charged with a misdemeanor for the same conduct that nonwhites seem to be charged with a variety of felonies,” said Jason Starr, former Long Island director for the New York Civil Liberties Union and chair for the Nassau County Bar Association’s civil rights committee.

Newsday reviewed more than 100,000 Long Island separate cases involving 33 charges identified as the primary ones resulting from “stop and frisk”-like tactics — such as resisting arrest, obstruction of governmental administration, criminal trespass and a host of drug-related offenses.

Long Island police arrest and court data were collected from January 2005 through December 2016 and provided by the state’s Division of Criminal Justice Services. This agency keeps track of numbers regarding arrests, convictions and sentencing reported throughout New York State.

While the state data did not give specific names or the precise location of arrests, they did include age and racial designations for white and nonwhite defendants in each county, including those identified as black, Hispanic, Asian and other minorities. The state data reflect the most serious charge given out at each arrest and include those individuals who may have been arrested more than once in any given year.

Newsday’s study of more than 50,000 drug possession cases from 2005 to 2016 also found a sharp racial disparity when it comes to punishment.

Even when convicted of felony possession charges, blacks and Hispanics on Long Island were nearly twice as likely to wind up behind bars than whites for heroin, cocaine or illegal pills.

And if convicted of the misdemeanor charge, even though more whites were arrested in total, nonwhites were nearly twice as likely to go to jail, records show.

A similar pattern existed on Long Island for those found with pot. For every 100 marijuana possession arrests, 2 whites received some jail time, whereas 10 nonwhites wound up behind bars — five times the rate of whites.

The analysis is based on records provided by the state Division of Criminal Justice Services, which collects data from around the state.

‘No discretion in the charges’

Long Island law-enforcement authorities reject the idea that race plays a factor in drug arrests. Suffolk police say charges are essentially colorblind, determined by the amount of drugs found and whether there was an intent to sell.

“There’s no discretion in the charges,” said former Nassau acting Police Commissioner Thomas Krumpter, who retired in July. Krumpter said state law clearly outlines the degree of severity for those arrested with controlled substances. “They’re charged based on the weight of their actions.”

But addiction expert Jeffrey Reynolds said the racial disparity in drug possession arrest statistics — particularly with blacks and Hispanics facing felony charges at a much greater rate than whites — doesn’t reflect the reality of who’s using illegal drugs on Long Island. Federal studies show little racial or ethnic difference from the 10 percent average of illegal drug use among the U.S. population.

“It doesn’t sound right that minority folks are carrying higher quantities than white folks; if anything these days, it’s probably the reverse,” said Reynolds, president and chief executive of the Family & Children’s Association in Mineola. “It’s white folks that are using prescription pills, it’s white folks who are using heroin. So when you look at where the arrests are landing, it doesn’t reflect the current profile of what we’re seeing on the Island in terms of who is actually using the drugs.”

Delores Jones-Brown, a law professor at CUNY’s John Jay College of Criminal Justice and founding director of its Center on Race, Crime and Justice, suggested that Long Island’s racial disparity in drug arrests may result from “hot spot” policing methods that concentrate efforts in minority communities with high rates of crime.

In addition, Jones-Brown said, white middle-class defendants are often able to afford private defense lawyers who can persuade prosecutors to lower charges, from an initial felony to a misdemeanor, before it reaches a grand jury. This can mean the difference between going to “a drug treatment facility as opposed to being sentenced to prison or jail,” Jones-Brown said.

Impact on drug users

These differences in outcome can have a profound personal impact for drug users. The examples of McNerney and Abraham are typical of concerns about racial fairness in Long Island’s criminal justice system.

Around noon on April 17, 2015, Suffolk police stopped McNerney on Route 109 in Lindenhurst and charged her with carrying an unspecified quantity of heroin, according to records. She was charged with possession of a controlled substance in the seventh degree, a Class A misdemeanor. The Smithtown hairdresser, now 26, was also arrested on a charge of unlawful possession of another controlled substance — Clonazepam, a tranquilizer often abused as a recreational drug — and a hypodermic needle.

It wasn’t the first drug arrest for McNerney. “There were multiple times,” McNerney recalled. “I was either driving in a car with drugs on me, or going to get drugs.”

Drug-taking defined much of McNerney’s young life until recently. Like some other suburban middle-class kids, she found Long Island awash in cheap heroin and a cornucopia of illegal pills. “I was using for eight or nine years, and just got involved with the wrong crowd in high school,” she recalled. “Just fell into it and then continued from there. It [heroin and other drugs] was enough to make me to continue to use. And then I got physically and mentally addicted to the drugs.”

The April 2015 heroin arrest persuaded McNerney that her addiction was a downward spiral unless she agreed to get help. She had seen heroin and opioids claim so many young lives and worried that she might become another fatality.

“That I would die — all you need is one bad batch of drugs and you’re dead,” she said of her motivation to get better. “I’ve seen it happen to a lot of people and it’s very devastating.”

Given her track record, McNerney feared going to jail, but her private attorney recommended Drug Court, a program that stresses rehabilitation rather than incarceration. Four years earlier, after a previous arrest, McNerney said she also had entered Drug Court. But she relapsed into heroin abuse and found herself stealing to support her habit.

Despite the severity of being pulled over and arrested for drug possession, McNerney said she was fortunate that her private lawyer and supporting parents urged her to again enter the Drug Court program. “Because it seemed like the better option, as far as either going to jail, or actually getting the help that I needed for my addiction,” she explained.

On March 1, after months of drug-free therapy and avoiding jail, her case finally ended with a brief court appearance. Her misdemeanor charge of controlled substance was reduced to a one-year conditional discharge and a small fine. As part of this plea bargain, another charge against her for possession of the same tranquilizing opioid drug and petty larceny from January 2015 was dropped.

McNerney was one of about 15 “graduates” that day in Drug Court, all of whom had followed a similar path.

Project director Edward Gialella said Suffolk’s Drug Court is geared as “an alternative to incarceration” for those charged with drug possession charges, even those with a history like McNerney. Its main purpose is to thwart crime driven by a serious addiction to heroin, cocaine and other illegal drugs by steering defendants toward rehab, he explained.

‘Flexibility’ in drug program

Each year, about 100 people graduate from the program after succeeding with constant drug-testing and treatment, Gialella said. Even those with prior felony convictions can be accepted into the Drug Court program with the approval of prosecutors, but those currently arrested for drug sales or violent crimes are excluded, officials say.

“There is a lot of flexibility in it,” said Suffolk District Court Judge Derrick J. Robinson, who oversees Drug Court in Central Islip and helps determine the eligibility of each defendant. Robinson said rehab is strictly supervised and can result in more jail time if a person is caught using drugs again.

“People in the Drug Court, this is not their first time [in the criminal justice system],” said Robinson. “They usually had other charges and they know what can happen [if caught using drugs again].”

Usually, defendants such as McNerney are urged to plea-bargain and enter into this program by a defense lawyer or family member, said Robinson and Gialella. If approved for the program by Drug Court without objection from prosecutors, defendants come back regularly to report on their progress and make sure they are complying with the terms of their plea-bargain. Officials say they want to get more eligible defendants with drug histories into the program when possible.

Most who get into Drug Court rehab are overwhelmingly white, according to records and interviews. In a November 2016 survey, whites made up 88 percent of those currently in the Drug Court system, with only about 5 percent identified as black or black/Hispanic, with the rest other minorities, according to court officials.

Yet, the annual group of about 100 Drug Court graduates is only a small portion of the thousands arrested each year in Suffolk for drug possession. Countywide in 2016, there were 3,370 arrests for possession of controlled substance.

Officials say they don’t keep track of the overall racial composition of those who might be eligible for the program. They say they decide each case on an individual basis. “We don’t look at that [race], as far as who’s being arrested and that makeup,” Gialella said.

No offer of Drug Court

Over at the Suffolk County Correctional Facility in Riverhead, it’s a much different story. Often blacks and Hispanics make up a large percentage of those who wind up behind bars for drugs, according to both the Suffolk sheriff and inmates inside the jail.

In a recent interview, inmate Michael Abraham said he wishes he could have gone to Drug Court or other rehab treatment plan in 2010 when he faced the same seventh-degree misdemeanor drug possession charge. Instead he got six months probation without any offer of help for his addiction.

While officials say Abraham was eligible for consideration in Drug Court, Abraham said he never learned of its availability. Four years later, his drug addiction — and the criminal behavior to support his habit — was still continuing, he said.

Records show Abraham was charged in July 2014 with a felony possession for crack cocaine — about 500 milligrams — and a lower marijuana offense. He said he parked his car near a Bay Shore gas station. Documents show he was approached by Suffolk police who suspected he might be a seller — something Abraham denies.

“I was just crossing a gas station and a police officer came up to me,” recalled Abraham, now 31. “He said, “What are you doing?’ I said, ‘Nothing’. He searched me, found stuff on me, and I got arrested.”

Ultimately, Abraham pleaded guilty to a reduced felony charge of attempted possession of a controlled substance and was given a two-year sentence. Again, Abraham was eligible for Drug Court under the rules, said officials, but Abraham said he never learned about that possibility.

“Whites will get a [treatment] program and I get sentenced with a felony, which follows me everywhere,” said Abraham, an auto mechanic worried that employers may reject him because of his felony drug arrest. “It ruins my chances of getting a job. It basically makes everything harder with a felony, as opposed to a misdemeanor which gets overlooked if I go for a job.”

Police and court records list Abraham as Hispanic, though his family background is from the West Indies, which he says is a mix of white and Hispanic. He considers himself a minority who is viewed by authorities “as a bad person” because of his ethnicity.

More nonwhites sent to jail

Abraham said the racial disparity in drug arrests is evident throughout Suffolk’s jail population. “Most everybody that’s in here is either Spanish or black. I think there’s, like, two white boys on the floor,” said Abraham when interviewed last year. “I see a lot of people who have drug problems that could be probably home fixing their problems, as opposed to in here, locked down.”

Abraham’s defense lawyers didn’t return calls about the case, and the Suffolk district attorney declined to comment. Abraham is now out on parole, records show.

In Suffolk over the past decade, black and Hispanics made up 63 percent of felony drug possession arrests, but 73 percent of those sentenced to jail or prison. A similar pattern existed in Nassau, records show.

In human terms, this difference in outcomes can be immense, said Suffolk inmate LeVar Jackson, 39, of Central Islip, who pleaded guilty to misdemeanor drug possession and was interviewed in 2016 in the Riverhead jail. Jackson said Drug Court never came up in his case. Suffolk prosecutors were unavailable for comment if he was ever considered eligible.

Like other inmates, Jackson believes white addicts are perceived differently by police and prosecutors than minorities like himself.

“When the white kid gets into trouble, whatever the case may be pertaining to drugs, little Billy needs help and is not looked upon as though he’s stealing from his family or hurting others as something bad. He just needs help,” explained Jackson. “Whereas when we commit acts of drug possession or drug sales, we’re doing that to poison the neighborhood. We need help as well.”

Suffolk Sheriff Vincent F. DeMarco says he’s heard similar complaints by other minority inmates behind bars for drug possession who wish they’d been offered rehab. “It happens a lot with Drug Court,” DeMarco said. “The [defense] attorney says they’re not eligible or they just don’t know about it.”

Both DeMarco and Drug Court officials say they’ve taken recent steps to expand awareness of the program among those accused of drug crimes, including during arraignment, stressing the chance for treatment instead of incarceration.

Rehab not always sought

Yet defendants and their defense lawyers don’t always seek out rehab for reasons that seem to go beyond race.

Laurette Mulry, attorney in charge of the Legal Aid Society of Suffolk County, said her staff regularly alerts their clients — often poor minorities who cannot afford a private attorney — about Drug Court. Her staff represent about half of the court’s defendants. But Mulry said many drug-addicted defendants would prefer spending a shorter time in jail than a year of court-supervised drug treatment.

“Addicts often don’t want to go to rehab — even though that seems counterintuitive,” explained Mulry.

Judge Karen Kerr, supervising judge of Suffolk District Court, which includes Drug Court, agreed that the power of drug addiction will often compel defendants, regardless of race, to accept punishment behind bars rather than promise to get clean.

“You have to be ready for Drug Court and ready for change or people will take jail over drug treatment,” said Kerr.

That was the case of Siobhan Eareckson, 26, who says she initially preferred the idea of going to jail rather than enduring rehab through Drug Court. In August 2013, she was pulled over by police while driving high on cocaine and other drugs.

“When I first heard about it [Drug Court rehab], I thought anyone who would do that is crazy,” she recalled. “That would mean that you couldn’t get high — and that was unfathomable to me. But when I finally came around and realized that wasn’t how I wanted to live my life anymore, it was like a huge blessing.”

On the day of her 2016 graduation from Suffolk’s Drug Court, after a year of being drug-free, Eareckson rejoiced in her freedom with her family, including her 2-month-old daughter in a stroller.

Looking around at the courtroom, Eareckson acknowledged the racial disparity in the current system and how many more drug offenders need the help that she was lucky to get.

“I look at the people who are graduating today and it’s really unfortunate — like everyone’s white,” she said, in a self-conscious whisper. “It’s unfortunate that people are maybe being judged based on their race and stuff like that. They’re not making it through and it’s sad.”

However, McNerney doesn’t believe race had anything to do with the outcome of her case. At her Drug Court graduation in March, she was joined by her lawyer and family — grateful she got a second chance.

“They were definitely happy about drug court because they never wanted to see me in jail,” she said with loved ones around her. “If I felt I was in this alone, I don’t know how successful I would have been.”

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