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'DRACONIAN' DRUG LAWS STIR PROTEST AGAINST MANDATORY MINIMUMS

Two vastly different crimes. Two strikingly similar punishments.

On Feb. 16, 1991, Julianna Muscoreil, a 69-year-old waitress, was fatally beaten and kicked down the basement stairs inside the Your Host restaurant on Elmwood Avenue.

Her killer was sentenced to 25 years to life in prison.

Seven months after her death, her grandson, Kevin Muscoreil, now 29, was arrested in a Cheektowaga hotel room with 4.8 ounces of cocaine.

Muscoreil was sentenced to the mandatory minimum, 15 years to life.

James V. Muscoreil, 53, has seen crime and punishment from two perspectives -- as the son of a murder victim and as the father of a drug defendant.

"I don't see how someone who possesses four ounces of cocaine and is an addict can receive 15 years minimum, while someone who viciously murders a 69-year-old woman 11 days before her retirement gets pretty much the same sentence," Muscoreil said Wednesday in his Town of Wilson home.

"The punishment should fit the crime."

That is why Muscoreil was scheduled to lead a noontime vigil today in front of Erie County Hall on Franklin Street to protest current drug-sentencing laws.

Muscoreil is New York State coordinator of Families Against Mandatory Minimums, which has 37,000 members in 25 states. The New York chapter is trying to overturn what it calls the state's "draconian" drug laws from the Rockefeller administration.

Those laws, enacted in 1973, mandated 15-year minimum prison sentences for anyone convicted of selling two ounces or possessing four ounces of cocaine or heroin.

"FAMM is not trying to legalize drugs," Muscoreil emphasized. "All we're trying to do is let judges -- not assemblymen and senators -- make the decision. We pay judges six-figure salaries, and they have no say at all for people convicted under the Rockefeller drug laws."

Kevin Muscoreil is no innocent victim, his father realizes. He was involved in the dangerous drug trade. One night in the early 1990s, James Muscoreil was awakened by a 3 a.m. phone call; he had to come up with $1,900 that his son owed some drug dealers, or he would find his son in the river. Muscoreil delivered the money and saw his son dumped from a van onto the street.

He knows now that his son should have gone to prison. In fact, he thinks that if his son had not been arrested and imprisoned, he might be dead.

But the 15-year prison minimum makes no sense to him. This is a young man who has accepted what he did and the harm he had caused others. And he has done everything possible to rehabilitate himself.

"My son has been in prison for six years now," he said. "He has taken every drug program they offer. He has his Regents diploma and some college credits. He works five days a week as a computer operator. He has no disciplinary record at all.

"Now, there is little left for him to accomplish in prison. . . . Yet he has to serve a minimum of nine more years before he can resume a productive life in society. Does this make sense?

"He's just housed there. As taxpayers, we're paying $30,000 a year to house him there. What is the point of it?"

State Sen. Dale M. Volker, R-Depew, a leading legislative voice on crime issues, said the Legislature is willing to look at some additional flexibility in sentencing such drug defendants.

But he sounded two warnings about any such changes:

Most -- but not all -- of the people imprisoned under those drug laws were major dealers, were involved with major dealers or exhibited violence, research has shown.

When there was more flexible drug sentencing, downstate judges tended to be much more lenient on drug offenders.

"It's only since mandatory minimums that we're getting tougher sentences throughout the state," Volker said.

According to Families Against Mandatory Minimums, at the end of last year, there were 8,800 drug offenders in state prisons under the Rockefeller drug laws. The annual price tag: $264 million.

Some high-ranking law enforcement officials have railed against those laws as inflexible, costly and unable to solve the drug problem.

"We should be filling (prisons) with the people we built them for -- the violent predator and repeat offenders, not the guy who got caught with a few bucks worth of crack," former state Corrections Commissioner Thomas A. Coughlin III testified in an Assembly hearing in 1993.

"The time is long overdue for the Legislature to recognize this distinction and enact some basic reforms to our sentencing structure."

It is five years later, and the Rockefeller drug laws have not been overturned or significantly modified.

One possible reason: Elected officials do not relish the idea of appearing soft on crime in any way.

Today's scheduled vigil is the first in Western New York. Similar vigils have been going on weekly since May in New York City.

Muscoreil says he will continue to fight the battle, no matter how long the odds are against changing those laws.

"Without a doubt, the Rockefeller drug laws have destroyed families," he said. "They've taken mothers away from their children, fathers away from their families. Economically, what can possibly happen to their children?"

Muscoreil and his son have overcome their differences since Kevin has been in prison and have developed a closer relationship.

But the father isn't battling just to free his son now.

"It is an injustice for the people in this state," he said of the current drug laws. "If Kevin walked out of prison today, I would not give up this fight."

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