home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
HaCKeRz KrOnIcKLeZ 3
/
HaCKeRz_KrOnIcKLeZ.iso
/
drugs
/
hearings.3.1
< prev
next >
Wrap
Text File
|
1996-05-06
|
260KB
|
9,721 lines
1 jbp 1
2 ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK
3 --------------------------------x
4 The Committee on Drugs and the Law
5 Public Hearings on a Report:
6
A WISER COURSE:
7
ENDING DRUG PROHIBITION
8
--------------------------------x
9
10 October 12, 1995
9:00 a.m.
11
42 West 44th Street
12 New York, N.Y.
13
Before:
14
KATHY H. ROCKLEN, Chair
15
JOHN H. DOYLE III
16 AGATHA M. MODUGNO
STEPHEN L. KASS
17 DANIEL MARKEWICH
ELEANOR JACKSON PIEL
18
19
20
21
22
23 PIROZZI & HILLMAN
Computerized Reporting
24 274 Madison Avenue
New York, N.Y. 10016
25 212-213-5858
PIROZZI & HILLMAN 212-213-5858
1 jbp 2
2 (Hearing Commenced)
3 MR. DOYLE: We are going to commence
4 our third day of hearings.
5 My name is John Doyle. With me up
6 here at the podium, on my right, is Agatha
7 Modugno, who is a member of our committee, and
8 she is corporate counsel at Minerals
9 Technologies, Inc. On my left is Stephen L.
10 Kass, who is a partner at Carter, Ledyard &
11 Milburn, and Steve is also a member of our
12 committee.
13 I would first like to acknowledge the
14 assistance and participation of Joseph Pirozzi of
15 Pirozzi & Hillman, which is a well-known court
16 reporting firm here in New York City. Joe and
17 his firm are participating on a pro bono basis in
18 reporting the proceedings and will provide us
19 with a transcript. We very much appreciate Joe's
20 contribution to our effort.
21 Our first witness this morning will be
22 Marianne Apostolides. Ms. Apostolides is a
23 graduate of Princeton University, she is a
24 research associate at the Lindesmith Center.
25 For those of you who have been working
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 3
2 in this field or who have been present at some of
3 our prior hearings, you will recognize that name
4 as being the name of a very active and productive
5 organization, funded in large part by George
6 Soros and the Soros Foundation, which has
7 assembled a group of outstanding experts in this
8 field, and they have an ongoing series of public
9 lectures that you, at the exit, can get copies
10 of.
11 They have three lectures coming up
12 within the next month, and it is something that
13 anyone who wants to keep up to date in this field
14 will find essential to be in touch with.
15 As to Ms. Apostolides, her areas of
16 concentration are needle availability, drug
17 policy in Western Europe and Australia, drug
18 testing and drug information, and she's written
19 in those and other fields as well.
20 Ms. Apostolides, would you like to
21 begin your presentation?
22 MS. APOSTOLIDES: Thanks very much. I
23 will be speaking mainly on Dutch drug policy.
24 MR. DOYLE: Would you speak right into
25 the microphone.
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 4
2 MS. APOSTOLIDES: Is that better?
3 MR. DOYLE: A little bit better but
4 put it as close as you possibly can.
5 MS. APOSTOLIDES: I will be speaking
6 mainly on Dutch drug policy.
7 MR. DOYLE: Can everybody hear okay?
8 It is very important that everybody hear. If you
9 can't, just raise your hand. I'm sorry.
10 MS. APOSTOLIDES: And the Dutch
11 philosophy on drug use is mainly a harm reduction
12 philosophy, and that's a philosophy that's been
13 taken up by other countries, although I don't
14 think as consistently as in the Netherlands.
15 Our perspective is basically a public
16 health perspective as opposed to a criminal
17 justice perspective on drug use. Drug use itself
18 is not viewed as an evil that can be somehow
19 eliminated by the criminal justice system or by
20 promoting abstinence. It is seen as inevitable
21 and problematic. Drug use is seen as a
22 manageable problem and there is also a
23 distinction between drug use and problematic drug
24 use.
25 Law enforcement is not seen as a
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 5
2 suitable means to regulate the demand side of
3 drugs, and it's mainly seen that law enforcement
4 can sort of exacerbate the problems associated
5 with drug use.
6 Although law enforcement is used in
7 terms of stopping international drug trafficking
8 and which the law is dealing with, and I think
9 the harm-reduction philosophy has been the most
10 consistent in the Netherlands than any other
11 country, and it was laid out in the late 1960s,
12 early 1970s.
13 I want to quote to you a government
14 white paper report to Parliament from 1975 which
15 basically lays out harm reduction before the term
16 was even sort of coined.
17 It says, "The aim of Dutch drug policy
18 is to contribute to the prevention of and to deal
19 with the risk that the use of mind-altering drugs
20 is to individuals themselves and their immediate
21 environment and society as a whole."
22 There is no sort of moralism. There
23 is no "we must end all drug use." Its kind of
24 seen as "Let's deal with a very pragmatic
25 approach. Let's deal with drug use in the best
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 6
2 way we can to reduce as many of the risks as we
3 can."
4 In 1972 there was a report of the bond
5 committee which was formed to evaluate government
6 drug policy, and this is where a lot of drug
7 policy was crystallized. The committee drew a
8 distinction between hard and soft drugs.
9 Soft drugs being hashish and marijuana
10 and hard drugs being pretty much everything else.
11 This distinction was between drugs that pose
12 unacceptable risks versus those that pose
13 acceptable risk. And soft drugs were considered
14 relatively harmless and, therefore, users and
15 small dealers should be left alone.
16 The bond committee also created a sort
17 of two-track philosophy, a medical approach to
18 addicts to try to get them medical attention.
19 Also social work type of stuff. And the criminal
20 justice approach to large-scale dealers and
21 international traffickers.
22 And with this, the bond committee
23 report was incorporated into the revised OB map
24 of 1976 which had two main provisions, again,
25 acceptable versus unacceptable risks and the
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 7
2 distinction between user and trafficker.
3 Now to the cannabis policy. Cannabis
4 is not explicitly legal in the Netherlands.
5 Under the law, 30 grams, possession of
6 30 grams of cannabis is considered a summary
7 offense rather than a criminal offense, and it is
8 pretty much never prosecuted. But that is the
9 only thing in the legal code in terms of the
10 legality or illegality of cannabis.
11 So basically the way cannabis is
12 regulated is through the expediency principle,
13 which is laid down in the code of criminal
14 procedure.
15 And the expediency principle states
16 that the public prosecutor has the right not to
17 prosecute a certain crime on the grounds deriving
18 from the public good. The expediency principle
19 is a basis part of Dutch law and not specifically
20 geared to drug policy. And basically the way
21 that works is the general prosecutor creates
22 guidelines for other prosecutors as to how to
23 apply this expediency principle for different
24 crimes.
25 And it basically provides another way
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 8
2 to prosecute or to establish priorities as to
3 what crimes are most important to prosecute and
4 which can be sort of, in a way, turned aside, or
5 turn the other way.
6 On the guidelines for coffee shops,
7 there are five.
8 One, no sale to minors, and that's
9 considered people under the age of 16. No sale
10 of any other drugs. No advertisements. No
11 encouragement of use. And no sale of anything
12 over five grams. And until last month with the
13 new Dutch drug law, it is called the Drugnota,
14 that was up to 30 grams. That has been reduced
15 greatly and in part that's because of pressure
16 from the European community since the borders are
17 -- it is much more laxed. France especially,
18 there has been a lot of pressure on the Dutch to
19 sort of tighten their policy.
20 Also there were high-level discussions
21 about the legalization of the production and sale
22 of cannabis, as opposed to decriminalization.
23 They were putting quotes on the books. This was
24 sort of stalled by the Drugnota of last month,
25 which stated, and I am quoting, "the legalization
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 9
2 of either hard or soft drugs is not an objective
3 ... the Dutch government would not expect any
4 decrease in the criminal trade in drugs if the
5 Netherlands were to legalize drugs (soft drugs)
6 unilaterally. Moreover, legalization would lead
7 to even lower prices on the Dutch market, and
8 thus to a further increase in drugs tourism, a
9 development the government deems unacceptable."
10 There, again, you have this sense of
11 feeling pressured from the European community.
12 One other thing about cannabis. The
13 coffee shops are really sort of integrated in the
14 life of Dutch cities. It is like going into a
15 cafe or a bar here in the United States. You see
16 people drinking their capuccino or having a beer
17 or smoking a joint. It is very integrated. It
18 is not anything that's sort of shocking to
19 anyone, I think, except tourists. So it is
20 important to note that.
21 Also there were approximately 1,200 to
22 1,500 coffee shops in 1991, which was the latest
23 figure I could get. The turnover of cannabis
24 products in coffee shops is about two billion
25 Dutch guilders per year.
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 10
2 Dutch treatment policy is somewhat
3 different from the United States. About 75
4 percent of current addicts come in contact with
5 some sort of treatment agency. And these can
6 include low threshold methadone maintenance,
7 social work and there is now going to be a heroin
8 prescription program, which I will talk about in
9 a minute.
10 Let me first talk about methadone
11 maintenance. The philosophy of methadone
12 maintenance is different from the philosophy in
13 the United States. Methadone maintenance is not
14 seen as something -- the objective is not to get
15 all users to stop using heroin. The objective is
16 to work with the user to find out how he or she
17 can stabilize his lifestyle, find a job, find a
18 home, and sort of regulate his drug use.
19 So in the United States the doses are
20 often times very high and there can be, it often
21 times with urine tests there could be punitive
22 measures taken if you are found to be using other
23 drugs.
24 In the Netherlands people are sort of
25 asked, "Are you still going to be using heroin?"
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 11
2 Okay, if people are going to be using heroin,
3 still, the dose is lower. Perhaps they will use
4 methadone in the morning and go to the job and
5 take their heroin at night. But the objective,
6 again, is to reduce the harm of using drugs and
7 increase the well-being of the people who are
8 using the drugs that often includes, having a
9 job, earning an income and stabilizing or
10 regulating use.
11 So with this kind of approach you can
12 use your heroin, even if you are on methadone, if
13 its in consistently with the Dutch philosophy
14 where it doesn't with the American philosophy.
15 95 percent of clients use heroin as
16 well but only 37 percent use it on a daily basis.
17 And programs are generally, as I said, widely
18 accessible and the rules are less strict and,
19 therefore, have a broader reach. That's a quote
20 from the Dutch sort of Administrative Health
21 Welfare and Sports.
22 Also 25 percent of methadone clients
23 are integrated into society, in other words, they
24 are in school or have jobs. 33 percent are in
25 control of their addiction, in other words, they
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 12
2 use very little heroin and 25 percent suffer from
3 serious physical and social problems.
4 There is also going to be, starting in
5 1996, an experimental heroin prescription program
6 based in part on the program that's now being
7 done in Switzerland.
8 The objectives of this program are
9 fourfold. First it is to determine whether
10 addicts can be stabilized in terms of getting a
11 job. To determine whether their well-being can
12 be improved, their physical as well as social
13 well-being. To determine whether additional use
14 can be reduced, mainly cocaine, and to determine
15 whether they can be encouraged to end their
16 addiction.
17 I am quoting from the committee which
18 proposed to the government that this program be
19 started. They said "Experiments of this kind may
20 be found to have a positive effect upon the state
21 of health in the broadest sense of the term, that
22 is to say, the biopsychosocial well-being of
23 certain categories of addicts without there being
24 unacceptable psychological damage."
25 Dutch philosophy on drug education is,
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 13
2 again, very different from the American
3 philosophy. Kids are taught about drugs within a
4 broader social -- within a broader context. So
5 the context is basically promotion of healthy
6 behavior and developing social skills to be able
7 to cope with life, basically, as opposed to
8 dealing with this sort of "Just say no," police
9 officers coming into schools, which we have with
10 the program.
11 I have a lengthy quote, which I think
12 sums up the Dutch philosophy toward education,
13 which I would like to read to you. It is written
14 up by the Ministry of Welfare, Health and
15 Cultural Affairs. It says:
16 "A large number of people experiment
17 with drugs without actually becoming addicted.
18 There are many types of users with many types of
19 lifestyles. Measures to prevent occasional users
20 from becoming addicted are therefore extremely
21 important and preventing problems accordingly
22 given at least equal emphasis as preventing use
23 of drugs."
24 That's very different from the
25 American philosophy.
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 14
2 "In view of the above, the Dutch
3 government believes that drug use should be shorn
4 of its taboo image and its sensational the
5 emotional overtones. The image of the user and
6 addict should be demythologized and reduced
7 reduced to its real proportions, for it is
8 precisely the stigma paradoxically enough, that
9 exercises such a strong attraction on some young
10 people."
11 This is very striking and very
12 different from the American approach.
13 I have some statistics that drug use
14 among youth in the Netherlands for every drug
15 including cannabis is lower than drug use in the
16 United States. Obviously, this approach is a
17 positive one.
18 Needle exchange, perhaps, I will go
19 over quickly. They were established in 1984 by
20 the emphasis of the junkie unions which is
21 basically organizations of users who were urging
22 the establishment of syringe programs actually to
23 prevent the spread of hepatitis as opposed to
24 HIV. And 93 percent of the syringes distributed
25 in Amsterdam were returned. That's the latest
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 15
2 figure. We have had enough talk on that in the
3 U.S.
4 Also, there is an interesting program
5 now that's run by the National Institute on
6 Alcohol and Drugs, why they will actually test
7 drugs that people -- for a small fee -- they will
8 test drugs that people bring to them.
9 Mainly Ecstasy pills, MDMA, MDEA and
10 the goal of this is, again, harm reduction. They
11 often set up at large raves, which are large
12 parties, and you will have police officers around
13 who are in support of this and kids, mainly
14 teenagers will come, bring their pills to be
15 tested by people who are working for an
16 organization that's, in part, supported by the
17 government.
18 And basically what it does is allow
19 kids to know what they are putting in their
20 bodies. It allows people to realize, yes, this
21 is Ecstasy, it is 120 milligrams, so they know
22 exactly what they are taking. That is a
23 harm-reduction philosophy. It seems kind of
24 strange to Americans to know that the government
25 -- even though the drugs are illegal -- the
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 16
2 government is saying give us your drugs, and we
3 will tell you what is it in. We are not going to
4 arrest you for it. It is kind of a strange
5 thing, with a practical lesson the U.S. can adopt
6 from the Dutch drug policy.
7 Basically, I think it is true that we
8 can't sort of translate everything from the Dutch
9 experience to the American experience because the
10 health care system is different, the poverty
11 level is different, there is much more of a
12 pragmatic versus moralistic undertone to the
13 culture in a lot of different areas. But I think
14 there are certain lessons that we can derive.
15 First, harm reduction as the goal of a
16 drug policy, taking drug use and drug policy out
17 of the realm of the criminal justice system and
18 into the realm of public health.
19 Second, a realization that zero
20 tolerance of drug use is unworkable and causes
21 more harm than it does benefit.
22 Third, decriminalization of the
23 possession of drugs for personal use.
24 Fourth, widespread establishment of
25 needle exchanges and low threshhold methadone
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 17
2 maintenance clinics.
3 Finally, the encouragement of
4 small-scale experiment programs such as the
5 heroin prescription trial. Basically, most
6 important is this change in thinking, this turn
7 away from moralism and toward dealing with users
8 as people with problems and dealing on their
9 level and finding out what they need to best
10 stabilize their lives.
11 MR. DOYLE: Thank you very much. Let
12 me introduce Dan Markewich on my far left, who is
13 a member of our committee and will be
14 participating on the panel this morning.
15 Why don't we start off with questions,
16 if there are some, from the panel members here
17 and then we'll go to the members of the audience.
18 There will be a microphone available to you for
19 your questions.
20 Agatha, do you do you have a question?
21 MS. MODUGNO: Yes.
22 You had mentioned having statistics
23 that the instance of drug use among minors in the
24 Netherlands was lower than it is in the States.
25 I was wondering if you do have general statistics
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 18
2 about the pervasiveness of drug use, what
3 percentage of the population in the Netherlands
4 is active in the use of drugs?
5 MS. APOSTOLIDES: I do in fact. An
6 ever used of cannabis is 25 percent of the Dutch
7 population age 12 and over. So I think probably
8 I couldn't get statistics for age 18 and over.
9 So it would probably be higher.
10 For cocaine ever used it is 5.5. For
11 amphetamines, 4.1. For hallucinogens, also 4.1.
12 For opiates, it is 7.3. But that's, if you were
13 to look at for heroin only, it is much lower.
14 That includes, I think, as well people who not
15 only use methadone but people who also have been
16 prescribed opiates by a doctor.
17 That's ever used.
18 If you look at used in the past year
19 or used in the past month, it is much, much
20 lower. You have cannabis 9.9 percent,
21 hallucinogens, 0.3. So it is not very high.
22 MR. DOYLE: Let me go now to the left.
23 Steve, do you have any questions.
24 MR. KASS: I do. I have THREE
25 questions. First, is a follow-up of the last
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 19
2 question.
3 Many of the people who are receiving
4 methadone or other forms of maintenance have
5 stabilized lives, and that, I assume, means they
6 are living with, many of them, living with their
7 families.
8 One of the concerns here is that if
9 the Bar Association recommendation of
10 decriminalization is adopted, there would be
11 widespread use by people who are not currently
12 using drugs because it would be seen as a
13 validation of that use.
14 I wonder whether you have any
15 statistics as to the degree of which family
16 members of people who are on maintenance, or
17 themselves, become users and how that frequency
18 would compare with the population generally?
19 MS. APOSTOLIDES: I don't know that
20 statistically, no.
21 MR. KASS: Do you hav any thoughts on
22 whether that immediate audience would be more
23 likely affected by the fact that a parent, for
24 example, or a sibling was presently using drugs?
25 MS. APOSTOLIDES: I don't think so. I
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 20
2 think it is kind of an odd set up, I think,
3 because there is no -- I don't know how to term
4 this. Unlike, I think, alcohol, there is -- it
5 is harder to use heroin.
6 In other words, there are more costs
7 using heroin than there are, say, using alcohol.
8 I think most people would not be attracted to
9 using this kind of drug. So I think if you
10 created a decriminalized system where possession
11 of personal use is not -- you are not arrested
12 for it and small-type dealing, you would not be
13 arrested, you still wouldn't have hordes of
14 people going out saying "I want to try it, I want
15 to use heroin."
16 One thing there is in the Netherlands,
17 there is, sort of, almost a respect for the
18 substance and the potency of the substances, and
19 you can't be using, you have to realize what you
20 are putting in your body.
21 And so I think if we had that kind of
22 education where we let people know what the risks
23 of using certain drugs are without making
24 moralism out of it, but saying, "If you use
25 heroin, this is what's going to happen to you.
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 21
2 Be careful, be warned." And this is not
3 something that people can build up and sort of
4 experiment with or might want to experiment with.
5 Then, I think you will have, you know,
6 again, that's the proper approach.
7 I don't know if I am answering your
8 question.
9 MR. KASS: You are leading me to my
10 second question, which is, the feasibility of
11 experimenting with a more, a different kind of
12 policy in one jurisdiction among many.
13 You reported that the Dutch seem to
14 have moved backward, at least in the area of
15 marijuana. It is not clear whether that would
16 also apply to cocaine and heroin and other kinds
17 of substances, but the pressures of the European
18 community and the threat of tourist drug use seem
19 to call into question the ability to maintain the
20 practice or philosophy that they developed.
21 Do you think we would have that same
22 problem here? Or just talk about that a little
23 in the context of hard drugs. I don't think they
24 are taking a step back in the cannabis policy.
25 They are reducing enough that it can be sold in
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 22
2 coffee shops, but possession of up to 30 grams is
3 still, you can possess up to 30 grams.
4 So it is not really, I think it is
5 more sort a nod to the European community than a
6 reversal of policy.
7 I think that a lot of international
8 pressure on the countries to have more
9 restrictive policies as coming from the United
10 States. So I think that if we were to sort of
11 start to alter our philosophy and our thinking
12 and our policy, it would give a lot of other
13 countries in Western Europe, I think, a little
14 more breathing space to begin to examine their
15 own drug policy. I don't think it is so much the
16 WEC would be putting pressure on us, but we're
17 putting pressure on the WEC.
18 MR. KASS: I was speaking of the New
19 York versus other states as an analogue to Europe
20 and the Netherlands.
21 MS. APOSTOLIDES: If you look at the
22 experience of Germany why you have different
23 cities, certainly in Hamburg and Frankfurt, who
24 have more progressive policies than other cities,
25 that experience has worked very well, and I think
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 23
2 this sort of, the tenor of the American political
3 world right now is really toward federalism,
4 loosen the ties of central government and let the
5 states sort of be the experimental lab,
6 laboratories, whatever.
7 I think that fits right into what the
8 New York Bar Association is interested in.
9 MR. KASS: That there be no influx of
10 people seeking access to hard drugs into the
11 Netherlands, for example, France, Germany.
12 MS. APOSTOLIDES: Definitely for
13 cannabis. For hard drugs on the borders of the
14 cities, people are worried, but it is mainly, the
15 debate is mainly around cannabis and not around
16 hard drugs.
17 MR. KASS: Two other questions if I
18 may, John.
19 MR. DOYLE: Sure.
20 MR. KASS: Is there any practice
21 lawful or unlawful of discrimination by employers
22 or landlords, for example, in the Netherlands
23 against people who are on these programs?
24 MS. APOSTOLIDES: Not that I have
25 noticed. And I spoke to a lot of people who are
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 24
2 on methadone and who are running methadone
3 clinics. There is also a much sort of more, I
4 don't want to say better, but in some sense it is
5 a better system of getting people public housing.
6 So often times people who are on
7 methadone maintenance -- as I read these
8 statistics to you before, 25 percent have jobs.
9 That means 75 percent don't. They are probably
10 on some form of public housing. There is no
11 discrimination.
12 MR. KASS: Do you know whether it is
13 lawful or would be lawful for a landlord or
14 employer that wants to refuse to rent or refuse
15 to hire on the grounds that the person was
16 admittedly an addict?
17 MS. APOSTOLIDES: I can almost 99
18 percent sure say that would be illegal, but I
19 don't know that for certain. But that, to me,
20 would be completely opposite of the Dutch sort of
21 approach to drug use. But I certainly can find
22 that out for you for sure.
23 MR. KASS: Finally, are there any
24 restrictions on access to drugs by pregnant
25 women, and if not, do you think there should be a
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 25
2 distinction in a policy with respect to women?
3 MS. APOSTOLIDES: That's an
4 interesting question and that's not something
5 that I'm sure of. But, again, I can very easily
6 find that out.
7 I sort of -- that's an issue I haven't
8 really focused on. There are people who
9 concentrate more on this issue who would be
10 better to answer this question.
11 MR. DOYLE: Dan.
12 MR. MARKEWICH: I have one question
13 and since I came in in the middle, if it is
14 something you dealt with before I got here,
15 please let me know.
16 I think most of us in this country,
17 and I guess my own views on it are reinforced by
18 what my daughter who spent some time in the
19 Netherlands reported to me upon her return, and
20 now she's off in Belgium. I think most of us
21 think of the Dutch as more or less an ethnically
22 and religious homogenous society with a widely
23 common world view. That may be an exaggeration,
24 but I think we think that way.
25 You gave us certain statistics on drug
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 26
2 use and abuse. Are there statistics as to drug
3 use and abuse in the Netherlands by ethnic and
4 religious groups that are outside the Dutch
5 mainstream? And if so, are those statistics
6 markedly different from those inside the Dutch
7 mainstream ethnically and religiously?
8 MS. APOSTOLIDES: I don't know about
9 religiously. In terms of immigrants --
10 MR. MARKEWICH: Well, all right.
11 MS. APOSTOLIDES: Immigrants both
12 legal and illegal, there is more use than among
13 the native Dutch population. I don't have those
14 statistics with me, but I do have them. They are
15 very easy for me to get access to them.
16 There is greater use.
17 MR. MARKEWICH: Does that tell you --
18 and I don't wanted to oversimplify either -- but
19 does that tell you that just maybe because of the
20 difference between American society and Dutch
21 society in terms of our being such a diverse
22 country with so many diverse ethnic, religious,
23 et cetera, groups, that the Dutch experience in
24 many respects is itself outside of the confines
25 of what would be likely to occur in American
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 27
2 culture if drugs were decriminalized?
3 MS. APOSTOLIDES: No. What it tells
4 me is that poverty and drug use are very linked.
5 MR. MARKEWICH: Maybe that's a similar
6 answer, actually.
7 MS. APOSTOLIDES: But I think that's
8 sort of separate from the harm-reduction approach
9 to drug use. In other words, it may be that in
10 pockets of poverty in this country there is
11 greater drug use, as it is in the Netherlands,
12 but that doesn't mean that approaching those
13 pockets with a sort of public health as opposed
14 to criminal justice instead of building more
15 prisons, having these mandatory minimum
16 sentences, saying to people, okay, let's deal
17 with this on a medical level as well as a social
18 level.
19 I mean I don't see where that could be
20 precluded by, you know, the fact that certain
21 minorities in the Netherlands use more than the
22 natives.
23 Do you see what I am saying?
24 MR. MARKEWICH: I certainly do. But I
25 see no necessary major contradiction between harm
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 28
2 reduction on the one hand and continued law
3 enforcement on the other hand.
4 I think they can be concomitants to
5 each other, although I don't see that one has to
6 decriminalize drugs in order to emphasize harm
7 reduction rather than law enforcement. That's as
8 much of a social policy as a legal policy, and I
9 recognize it may also have a certain amount of,
10 one could say, hypocrisy about it.
11 But one could also say it is not
12 dissimilar if American society or the states or
13 the cities decide to do it that way to the same
14 kind of discretion as the Dutch prosecutors have
15 in treating things even if they are technically
16 illegal. At least as far as personal drug use is
17 concerned.
18 MS. APOSTOLIDES: The only comment I
19 would have on that is that there is certainly a
20 role for law enforcement in the drug issue, but
21 that if you deal with larger scale dealers and
22 with trafficking as opposed to with the users and
23 with smaller scale dealers, I think that's a much
24 healthier approach for the people who are using
25 it and also for society.
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 29
2 MR. MARKEWICH: Okay. I have no
3 problem with that at all.
4 MR. DOYLE: Let's ask if any members
5 of the audience have any questions for Ms.
6 Apostolides. Why don't you come up and grab the
7 Mike, and I would appreciate it because we don't
8 have anyone to bring it to you.
9 A QUESTIONER: I'm asking this: Do
10 the Dutch have any particular policies with
11 regard to cocaine? What do they do about cocaine
12 since that's one of the hottest problems here?
13 MS. APOSTOLIDES: Cocaine is not as
14 much of a problem in the Netherlands as it is
15 here. Often times it is people who -- it is
16 co-drug users. People who use heroin as well as
17 cocaine, so they often come to the realm of the
18 methadone maintenance treatment systems.
19 So there the Dutch experience isn't
20 exactly parallel to the American one. Although I
21 think the person to speak to on this would be
22 Peter Cohen of the University of Amsterdam. He
23 would be much more conversant than I would.
24 MR. DOYLE: Any further questions?
25 Yes, sir.
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 30
2 A QUESTIONER: Just one of the many
3 things I was thinking about asking is, what do
4 you think about the principle of expediency?
5 First of all, have you had any thoughts about its
6 compatibility with the law in any of the United
7 States? And second, whether anybody there has
8 ever used this principle of expediency for
9 personal gain, to gain leverage over some people?
10 MS. APOSTOLIDES: The second half of
11 the question, I really wouldn't know, although I
12 would like to think not. This has been a part of
13 the Dutch sort of legal code for centuries. So I
14 wouldn't think so.
15 I don't think there is an exact
16 parallel to the U.S. legal code. But, again, I'm
17 not a lawyer. So I don't know that I would be
18 able to answer that question.
19 MR. DOYLE: We have some time for one
20 more question. Yes, sir.
21 A QUESTIONER: Hello. It was my
22 impression that in some ways the coffee shop
23 system in the Netherlands was based on a
24 reinterpretation of the Gateway theory of regular
25 drug use, i.e., drug users progressed through
PIROZZI & HILLMAN 212-213-5858
1 jbp Apostolides 31
2 initiation to rely on two dependents.
3 I was wondering whether you have any
4 information on the philosophy what role the
5 Gateway progression is deemed to have any
6 legitimacy in Dutch drug policy?
7 MS. APOSTOLIDES: The Gateway theory
8 is something that's been debated, I think, more
9 in America recently than in the Netherlands.
10 But there is definitely a separation
11 between soft and hard drugs, and that would sort
12 of in a way -- it is kind of like the Dutch do in
13 some ways, buy into the Gateway theory, although
14 that's been pretty much disproved by Lindsay
15 Marie and John Marie.
16 Basically, the the Gateway approach
17 stipulates the hard drugs and soft drugs. So
18 drugs which pose an acceptable risk can be more
19 accessible and people won't have this need to go
20 on to other drugs. And there is also very strict
21 policy on no sale of other drugs in coffee shops
22 and that's pretty much it. But they don't
23 actually have the term the Gateway theory.
24 MR. DOYLE: All right, thank you very
25 much.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 32
2 (Applause)
3 MR. DOYLE: Our next witness is Judge
4 Robert Sweet.
5 Judge Sweet is a member of the United
6 States District Court for the Southern District
7 of New York, where he has served for a number of
8 years with great distinction. He has devoted a
9 significant amount of his time to work here at
10 the Association on drug policy. For a number of
11 years, he chaired our committee on drugs and the
12 law before Kathy Rocklen, our present chair, took
13 over.
14 In that capacity he worked very, very
15 closely with members of the committee and with
16 the public in dealing with drug policy issues,
17 and he is well known throughout the country as a
18 very leading expert and spokesman in this area.
19 He has been a Deputy Mayor of the City of New
20 York.
21 And we very much appreciate your
22 joining us this morning, Judge Sweet. Thank you.
23 JUDGE SWEET: John, a delight. What
24 fun it is to be back with all of you, even the
25 court reporter, who is a good friend, and to be
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 33
2 in this glorious room.
3 You know, I wish Stimsom were here
4 today because I have a profound belief and
5 conviction that if he were here he would be
6 somewhere within the confines of the position
7 which I take.
8 I think this committee and the
9 Association really should be proud of the
10 position which they have taken. It is probably
11 one of the best thought-out positions, and this
12 is certainly one of the most prestigious
13 associations that have swung into this issue and
14 dealt with it on a rational, coherent basis.
15 I am delighted to see you all again.
16 I think all of you know by one way or another my
17 views on this subject, and I guess they are not
18 too startling today. Though, at the time when I
19 first took the position it was a little bit more
20 exciting perhaps than it is now.
21 I think that this Association and this
22 committee are doing exactly the right thing,
23 because the root problem which we have is public
24 apathy and ignorance and the acceptance of a
25 mythology on this subject, which is not grounded
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 34
2 in fact.
3 I hope that these proceedings will be
4 honestly discussed, well-reported and that way
5 we'll illuminate and shape public opinion, both
6 here in the city and throughout the country and
7 give us an opportunity to reevaluate our public
8 policy toward drugs and toward each other.
9 Hopefully, these hearings are going to
10 reaffirm President Kennedy's statement that
11 "Change is the law of life."
12 Now, I have a prepared statement which
13 I will submit to the committee, both to save you
14 time and also to spare you the agony of having
15 heard what I have said in an earlier point. I
16 will just try to shorthand some of those
17 statements.
18 I re-examined my position on this
19 issue, having been an Assistant United States
20 Attorney, a Deputy Mayor of the city, a sitting
21 district court judge, as well as a practicing
22 lawyer every now and then, and I had accepted
23 conventional wisdom on drugs and did not
24 challenge the criminal prohibition until in 1988,
25 faced with a mandatory minimum sentence of a
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 35
2 young fellow, a young Puerto Rican who had no
3 prior record, I was -- because of the
4 circumstances of that arrest and that plea -- I
5 was forced to impose the 10-year mandatory
6 sentence.
7 It seemed so unjust to me at the time
8 that it challenged, made me challenge the
9 proposition of the drug laws and the criminal
10 prohibition against drug use.
11 I spoke to people, some of whom have
12 testified before you, Dr. Nadelmann, and tried to
13 figure out what was wrong with our present
14 policy, and then expressed my views on the
15 subject. That was sort of an exciting period and
16 it included a petition for my removal and
17 censure, and a few other things.
18 Also, I had my five minutes of fame --
19 Warhol had 15 -- but I had only five minutes and
20 appeared on national television and did things
21 like that.
22 Over the last five years it has been
23 an interesting journey on this issue and today,
24 of course, is one of the high points, because of
25 the nature of this Association and this
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 36
2 committee.
3 Obviously, our present policy has
4 failed. I'm sure you know the statistics, and
5 they are in my prepared remarks.
6 The bottom line is that despite the
7 fact in the last 10 years the number of drug
8 offenders in jail have increased nine times. It
9 is quite clear that the problem has not
10 diminished nine times. In fact, the problem
11 being the use of drugs remains relatively
12 constant.
13 One can get into an argument with
14 respect to a particular drug at a particular
15 moment, but consistently I think there are
16 roughly 6 million Americans who are involved with
17 drug prohibition -- I mean the use of drugs and
18 maybe 2 million of those have serious problems.
19 And at the same time we have spent over $500
20 billion in the last 20 years to deal with this
21 problem. And we have not solved it.
22 There is episodic violence on the
23 streets. Much of the statistics in New York
24 indicate over 80 percent of the drug-related
25 crimes are turf related, systemic, and I think
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 37
2 that's a by-product that indicates the failure of
3 the system.
4 Why? Why hasn't all of this worked?
5 I think it is relatively simple. To crib from
6 George Stephanopoulous, "It's the money, stupid."
7 There is so much money involved in this traffic,
8 because of the illegality, that it cannot be
9 stopped. And when I say it cannot be stopped, I
10 think that's a statement of fact.
11 I was on the West Coast recently and
12 was told about that warehouse in Los Angeles
13 where the amount of cocaine was staggering. It
14 was reported in the press, and I have forgotten
15 how many millions, I think $20 million worth of
16 cocaine. But that fact simply indicates that the
17 money is such that people will go to any length
18 to be sure that there is distribution.
19 The economists tell us that the rate
20 of increase is about 200 times. By that I mean
21 the cost of the drug in Columbia and the cost of
22 the drug retail on the streets in New York, and I
23 have had cases where those numbers have been
24 verified.
25 This is, as the New York Times in 1990
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 38
2 said, one of America's major industries and it is
3 the money that is driving it.
4 So, obviously, let me just also say
5 that the fact that we have almost a million
6 people in jail in this country, higher than any,
7 proportionately higher, than any of the western
8 nations by a substantial degree, three, four,
9 five times as many proportionately, indicates
10 that this punitive policy just doesn't work.
11 Well, what to do? A proposal for
12 change? I think the first thing to do is to
13 recognize that this problem in its entirety is a
14 health problem. That mind-altering substances
15 are a part of modern life. They have to be
16 understood and ameliorated, and not prosecuted
17 and prohibited.
18 If we can change American habits with
19 respect to smoking, which of course deals with
20 tobacco which is a much more addicting drug than
21 any of the drugs that are illegal, and that
22 tobacco which kills 400,000 people a year in this
23 country, if we can cut that usage, as we have by
24 about 50 percent, through education, there is
25 absolutely no reason why we cannot, in my view,
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 39
2 accomplish very much the same thing, the same
3 approach with respect to the presently
4 prohibitive drugs.
5 Marijuana has beneficial medical uses.
6 There is really no dispute about it. Glaucoma,
7 multiple sclerosis, cancer, those things are
8 clear. Also it is obvious that needle exchange
9 is the appropriate way to handle addicts, with
10 the idea, obviously, of trying to assist in the
11 reduction of AIDS.
12 So I think what we should do is to
13 educate and treat it as a medical problem. The
14 National Academy of Sciences, I'm sure, has been
15 reported to you. You observed it yourself in
16 September and approved the use of needle
17 exchanges. That's moving toward the
18 harm-reduction policy that Marianne just
19 discussed with you.
20 So, I think drugs should be treated
21 the same as alcohol, barred from use by minors,
22 from advertising, should be taxed, should be
23 legal, should not be underground, and as with
24 alcohol, anybody who harms others or is a threat
25 to others as a result of the influence of drugs
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 40
2 should face criminal sanctions.
3 We should recognize the responsibility
4 for conduct is an individual matter. That
5 societal decrees can be effected only if they
6 accord with the mores of society.
7 I remember hearing Whitney Seymour,
8 one of the -- I don't know whether he would like
9 to be referred to as a pillar or not -- but
10 certainly one of the rocks upon which this
11 Association was based, always quoting Lord
12 Mouton. I never could locate where he found Lord
13 Mouton's quote, although I did track down
14 something, so that I think I can say that his
15 view, that is, Mouton's and Seymour's both, is
16 that "The test of a civilized society is its
17 compliance with the unenforceable."
18 What we have to do is change people's
19 minds on this.
20 Now, I also think that beside the
21 practical elements that I have tried to discuss,
22 I think also that there is a basis in the law, in
23 our constitutional thinking on this subject for a
24 change in policy.
25 The framers of the Constitution were
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 41
2 obviously committed to a theory of natural law
3 and natural rights stemming from John Locke, and
4 they developed this in their own writings and
5 explicitly acknowledge that individuals possess
6 certain inalienable rights, not enumerated in the
7 text of the Constitution and not contingent upon
8 the relationship between the individual and the
9 federal government.
10 What you have to do to determine what
11 those rights are is to determine the
12 fundamentality of the rights. In Griswold,
13 speaking of the right of privacy, Justice
14 Goldberg required the court, in his language, to
15 "Look to the traditions and collective conscience
16 of our people and to the emanations of specific
17 constitutional guarantees and experience with
18 requirements of a free society."
19 When a particular right has been
20 narrowly defined as, for example, right to
21 possess and spoke marijuana or cocaine, the
22 courts have consistently refused to recognize it
23 as one which is fundamental. But if you cast it
24 as a right to ingest substances, or even in more
25 general terms, as a right to self-determination,
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 42
2 a right logically and practically related to the
3 right to privacy, a right to self-ownership, if
4 you will, a right to recreation, perhaps a more
5 coherent argument can be made for the proposition
6 that the right to ingest consciousness-altering
7 substances has a constitutional foundation.
8 Of course, there is a historical
9 basis. The right to be free from government
10 interference with respect to the manufacture,
11 possession and use of drugs, which was the case
12 in this country since its founding and up until
13 the early part of this century. So I think there
14 is a sharp line that can be drawn between
15 government and the individual, and I quoted Izia
16 Berlin's views on that subject.
17 Now, what's the argument or what's the
18 antithesis? What's wrong with what I have just
19 tried to briefly advance?
20 Of course, one of the propositions for
21 change has to be bottomed on our history with
22 prohibition. Our failure to regulate through
23 criminal prohibition of a mind-altering
24 substance, namely, alcohol. All of us are
25 familiar with that.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 43
2 The statement is frequently made that
3 we're sending the wrong message by talking the
4 kind of -- excuse the expression -- talking the
5 talk that I have just enunciated. I don't think
6 wrong messages is the correct analogy. What
7 we're doing is to say that everybody has to
8 determine their own individual code of behavior,
9 and I think the true message of our present laws
10 is that the drug laws are ineffective and that
11 they are discriminatory and the facts of the
12 discrimination are set forth in the statement.
13 Also, it is frequently said, drugs
14 made legal, no longer are subject to criminal
15 prohibition, will expand the use of drugs. Of
16 course, nobody knows the facts. Parenthetically,
17 it would be good if we could in some fashion in
18 this country define, delineate an experiment
19 which might in some fashion test that thesis.
20 In fact, the best studies on alcohol
21 use before, immediately after, during and then
22 finally after Prohibition was eliminated would
23 indicate that this is not necessarily true.
24 There was a drop after the initiation
25 of Prohibition in 1917. Parenthetically,
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 44
2 obviously by definition, it is very hard to get
3 meaningful statistics on this sort of thing. The
4 students, the best study I have seen on it by
5 Mersky and somebody else, I forget who the other
6 person is, were really based on hospital
7 admissions and liver problems, that sort of
8 thing, not annecdotal, and, of course, no surveys
9 at the time.
10 In any case, their conclusion was that
11 the best evidence was there was a drop in usage
12 shortly after the adoption of Prohibition, then
13 came back to about the same level that alcohol
14 consumption was before Prohibition, remained at
15 that level after Prohibition was terminated,
16 after the country finally realized that the
17 system didn't work as it hoped they will with
18 respect to drugs, and only sometime thereafter
19 did it increase not to a substantial degree but
20 an increase.
21 So I think also 10 states
22 decriminalized small amounts of marijuana in the
23 70's and there is no evidence of an increase of
24 use during that time. And you have just heard,
25 very ably presented about what the situation in
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 45
2 the Netherlands is. So what can we expect? I
3 think there may be change in the air. One would
4 hope so.
5 There is good writing on the subject.
6 Steven Dukes, America's Longest War, your own
7 report, which I think is solid and constructive
8 and the Rochester Bar Association has taken a
9 position and, of course, the writings of Ethan
10 Nadelmann.
11 A Baltimore grand jury has concluded
12 that our present policy is not effective and that
13 a treatment program should be adopted by this
14 society.
15 So I think there is a possibility of
16 change.
17 Now, that's briefly stated what I have
18 submitted to you. I would like to sort of share
19 with you some of the thinking that has evolved in
20 my mind ever since 1989 when I first got into
21 this controversy, if you will.
22 In those days it was a drug war. It's
23 useful to note that Lee Brown who is obviously
24 the administration's point man on this issue
25 today no longer refers to it as a drug war. And
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 46
2 I think that's a very useful step, because the
3 war analogy is "us against them," where the
4 reality is, as we all know in Pogo's terms, "We
5 have met the enemy and they is us." It isn't a
6 war in any accurate sense.
7 I think also we are beginning to learn
8 perhaps that the demonology involved is unsound.
9 The crack baby demonology. Everybody, when I
10 first took this position and found myself on
11 national television, I was asked if I had visited
12 the crack babies in Bellevue? Well, I hadn't.
13 And I didn't know then of the studies which would
14 now permit me to say -- and it wouldn't have been
15 a useful experience anyhow, because there is no
16 clinical, solid evidence -- that crack, the
17 condition of crack babies results from the
18 ingestion of crack by the mother when compared to
19 all of the other constellations which are
20 present. Obviously diet, alcohol, the whole
21 series of things. The crack baby is really part
22 of the demonology.
23 I think when the National Academy of
24 Sciences begins to move into this field and takes
25 the position that they have with respect to
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 47
2 needle exchange, of course, they are just going
3 back to a 1982 position which the National
4 Academy took with respect to the ending of the
5 criminal prohibition of marijuana. So I think
6 that there is something happening.
7 I think also there is a possibility
8 that this new attitude in Washington, the
9 dominance of elimination of waste and so on,
10 sooner or later the wandering spotlight of public
11 attention may focus on the costs of the drug war
12 and the expedience of what we're doing. If that
13 happens, I think we could expect change.
14 Also it is interesting in the '94
15 crime bill there was a provision for a commission
16 to study violence and the use of drugs in this
17 country. In Congress there was delineation of
18 how the members of the commission would be
19 selected, et cetera, et cetera.
20 Of course, needless to say, Congress
21 in its infinite wisdom failed to provide any
22 money for this undertaking. So nothing was done.
23 But the fact that it is out there and that
24 Congress has at least nodded to the idea that
25 there ought to be a study, that there ought to be
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 48
2 rational thought on the subject, although I'm
3 sure not many of them would agree with my
4 position at the moment, but the proposition that
5 it is debatable, that it is discussable, that it
6 is significant, I think is a positive one.
7 In terms of this debate and in terms
8 of some kind of focus on the problem, it does
9 seem to me that we're moving forward.
10 I think the cities are going to be
11 increasingly important because it is the cities
12 that are suffering the most, and it is the cities
13 that, hopefully, will press the hardest to move
14 toward a health treatment rather than a punitive
15 treatment.
16 I think all of us can gather a great
17 deal -- those of us who feel as I do -- a great
18 deal of relief and pride in the fact that Curt
19 Smoat was reelected as mayor of Baltimore when
20 his position on treating drugs as a health
21 problem was an element in the campaign.
22 Finally, it seems to me that the
23 fundamental problem here is that drugs are one of
24 those defining elements in American society today
25 and what we have to do is, what has to be done,
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 49
2 we have to achieve some paradigm shift. We have
3 to move from a position where government is
4 responsible for the solutions of our society to
5 one where the individual is responsible. And to
6 move this line of appropriate conduct and
7 societal mores away from Congress and into the
8 laps of each one of us.
9 "Ask not what your country can do for
10 you but what you can do for your country," and it
11 is that sense that we have to get back to, I
12 think. What we need now is an openness of mind,
13 a return to altruism, to a concern for each other
14 and, in a sense, though it may sound, sitting
15 here in this city under these circumstances, a
16 bit silly or inappropriate, but I really think we
17 need a return to the pioneer spirit, where we
18 recognize that we are a free people and that we
19 can remain this way only if we help each other.
20 In other words, altruism and the end of an
21 attitude which says "it is not my job."
22 This reform, which has been advocated
23 by others as well as myself and had been
24 advocated by the committee, I think this reform
25 is, as I say, a terribly important one in terms
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 50
2 of the American psychology and the American
3 society. And it is just a particular issue
4 which, if we face it honestly will bring us back
5 to our basic roots, I believe.
6 And I thank you for the opportunity to
7 be with you again. I'm sure I haven't told you
8 anything that you don't already know and better
9 than I, but it has been a delight to be with you
10 and if I could answer a question, I would be both
11 surprised and pleased.
12 MR. DOYLE: Thank you very much,
13 Judge.
14 (Applause)
15 MR. DOYLE: Why don't we go through
16 our panel in the same order.
17 Agatha, do you have a question?
18 MS. MODUGNO: Yes.
19 I have obviously thought that one
20 reason that drug policy has been so focused on
21 crime in the court system because it is easier to
22 obtain funding to jail and kill people than it is
23 to get funds for treatment and education. And I
24 wonder in this world of decriminalization where
25 you have one million people, now prisoners, who
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 51
2 will be roaming the streets as homeless and
3 uncared for, do you really think that this is
4 better than -- I mean to say -- the alternatives
5 are either criminalization or sort of a homeless
6 and itinerant population of incapable people.
7 JUDGE SWEET: Really, I think your
8 premise is right. The war on drugs is a
9 simplistic solution. To penalize, the heavier
10 the penalty, the less use there will be, and this
11 exercise of individual cases will be stamped out.
12 Well, I mean realistically, we know it
13 is not true. It doesn't work. It didn't work in
14 Prohibition, it is not going to work now. It is
15 a simplistic, appealing proposition unless you
16 think about it.
17 I think if the American people think
18 about it they are going to realize that the
19 risks, if there are risks, of these let's say
20 million -- of course, the million are not all
21 involved in drugs; to be generous, say half a
22 million, 600,000, something like that -- involved
23 in drugs, and let's assume they are all released,
24 would there be a change in our society? Frankly,
25 I think not.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 52
2 I think that those drug crimes by and
3 large are the result of the economic factors and
4 so -- and I think if we approach this and said,
5 "We're spending" -- pick your number -- "20
6 billion a year on enforcement, which is not
7 successful, and we're going to take 10 million
8 and apply that toward education and health, I
9 think we would find that this society worked
10 better."
11 It is interesting to me that judges
12 seem to be into this issue. As you know, here in
13 New York, assuming that across the river is part
14 of New York, Jack Weinstein has adopted this
15 view, John Curtin up in the Northern District
16 has, Whit Knapp, Warren Edgington in Connecticut,
17 Louisiana Don Walter, Florida James Payne -- I'm
18 sure you noticed Posner's Circuit Court position
19 with respect to marijuana -- Vaughn Williams in
20 the Northern District of California.
21 Why is this? Now, I think one reason
22 is, obviously, the people that I have mentioned,
23 except for Jim Bray in California, who is a state
24 court judge, are all protected by the
25 Constitution, and therefore are free to speak.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 53
2 But just as you have indicated, those people who
3 have this experience with the punitive
4 legislation and punitive approach have spoken out
5 and have taken the position that it just doesn't
6 work.
7 So, I frankly think our society would
8 be healthier and function better if these reforms
9 were adopted.
10 MR. DOYLE: I am going to now go to
11 the other side of our panel, and I'll point out
12 that Judge Sweet could clearly be kept here all
13 morning by many of us, so I am going to ask each
14 person to limit themselves to one question or
15 perhaps a follow-up. With that, I will pass
16 along first to Steve Kass.
17 MR. KASS: You said that because you
18 saw I had written down three questions.
19 Like so many others, I would like to
20 express a real appreciation for what Judge Sweet
21 has done in this area.
22 I'm interested in 1 1/2 questions, if
23 I may. First is a follow-up to what you just had
24 been talking about, and for me it is one of the
25 more or most dismaying figures I have seen in a
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 54
2 very long time. It is not just a million people
3 in jail, it is that figure we saw in the Times a
4 week ago or two weeks ago, one-third of our
5 African-American men are under the supervision of
6 the criminal justice system. That's utterly
7 astounding.
8 To what degree, I wonder, is that
9 related to this issue. Why would opponents to
10 your call for a new approach have suggested,
11 along with Congressman Rangel, that the current
12 policy is needed to protect the minority
13 community?
14 I wonder what your thoughts are on
15 that and whether you have any idea as to what
16 number of that percentage of that one-third are
17 there because of drugs?
18 JUDGE SWEET: I'm reminded of a speech
19 by Lanie Guinere at the New School at which she
20 said, "Don't ask, don't tell," and what we're
21 talking about now is discrimination, and it is
22 ugly, I think, and rather frightening.
23 The fact is that -- I believe the fact
24 is that the drug laws are discriminatorily
25 enforced because that's easier, it is less
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 55
2 controversial and it plays into the mitt in
3 America of an underclass which is primarily a
4 black underclass. These are not attractive
5 considerations.
6 There is a study recently, an article
7 recently written by Dawn Daye and she concludes
8 based on the statistics which she had available,
9 this is in a 1995 article, that of those who are
10 drug users and arrested for drug possession, 3
11 1/2 times as many blacks as whites are arrested.
12 Now, I think it is part of the
13 simplistic idea that if you have a criminal law
14 and you enforce it, you will eliminate the
15 problem. And it has got a double whammy as far
16 as drugs are concerned, because the easy
17 enforcement is against the blacks.
18 Putting it differently, is there a
19 different rate of usage between blacks and
20 whites? I would suggest that a careful study of
21 the figures would indicate no. Between poor and
22 rich, yes. Blacks and whites, I think not. But
23 that's not the way the arrest statistics read.
24 So that drives you to the conclusion
25 that the coloration of the problem results from
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 56
2 the arrests, not from the inherent usage by the
3 population. And, of course, that also drives you
4 into the issue of, well, why? Why does anybody
5 want to use mind-altering substances? I mean I
6 don't know about -- well, I do know about some of
7 you, but I don't know about all of you.
8 I know that some of you use
9 mind-altering substances on a relatively regular
10 basis, not drugs, but alcohol, and it is part of
11 our society. And, sure, it can be a problem and
12 the rate of addiction for all these mind-altering
13 substances is maybe around 15 percent, the best
14 figure that I have been able to come up with.
15 So why is it that people like Rangel
16 said that there is this terrible risk that the
17 people in the black community will be decimated
18 if this reform is accomplished? I think it is
19 realistic. I think that the reason for usage is
20 loss of hope, it is a feeling of disconnection
21 with the society, it is obtaining a satisfaction
22 from an artificial source rather than from
23 achievement, from job, whatever.
24 And I think that if you address the
25 root causes of the dissolution of the loss of
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 57
2 hope, it is not a black/white thing. It is a
3 question of those who are deprived in the
4 society.
5 Now, of course, what we recognize is
6 that many of -- I saw, I think, in the Times
7 yesterday or today -- that the rate of blacks
8 admitted to colleges now is approximately equal
9 to their rate -- to their percentage of the
10 population, something like 12 percent, something
11 like that. Well, that's a very optimistic
12 statistic, and I think this is not a ghetto
13 problem. It is a human problem, and it is a
14 problem of those who are deprived economically
15 rather than disadvantaged or affected by skin
16 color. That's my view.
17 MR. DOYLE: Dan?
18 MR. MARKEWICH: No.
19 MR. DOYLE: Let me introduce Kathy
20 Rocklen who is the chair of our committee.
21 MR. MARKEWICH: By the way, thank you,
22 Judge.
23 THE CHAIR: I will ask one question
24 that I have asked a number of the witnesses,
25 which is, how do we deal with the perception
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 58
2 about what we tell our children? How do we
3 distinguish between legalization and
4 legitimization?
5 JUDGE SWEET: I think what you do with
6 your children is to develop -- well, first of
7 all, obviously, do no harm to others that's a
8 moral code. On a practical -- well, let me back
9 up.
10 I had kids in the '60s here in this
11 city. I did not know what was going on. I had
12 absolutely no clue. All of my children were
13 experimenting with drugs and so were their
14 contemporaries. And as a parent, perhaps these
15 were the days when I was working for the City,
16 and perhaps I was just oblivious or perhaps I
17 just chose to ignore what I should have seen or
18 whatever. Now, that's a far -- I would suggest
19 that the parent that relies on "Don't do it
20 because it is illegal," is in effect copping out.
21 That parent is just simply saying, "Well, there's
22 a great big power in the sky, and they said it is
23 a bad thing, so don't do it."
24 The reality is that children should be
25 taught that there are dangerous elements in life,
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 59
2 all kinds of things. Don't cross the street
3 against the light, you might get killed. Don't
4 get involved with drugs, it may cause you harm of
5 one kind or another. So it is, it seems to me,
6 that this is no more than teaching children a
7 sensible, appropriate way to behave in life.
8 The moral aspect of it, I think, is
9 that you should be responsible for what happens
10 to you, what you put in your body, what you do.
11 You are responsible, not Congress. And,
12 therefore, the children should be taught that
13 certain things are, you teach them don't drink
14 iodine. So I don't see this as a legitimizing
15 factor. I don't see that there should be any
16 difference in the treatment, the education of
17 children with respect to drugs as there is with
18 respect to alcohol.
19 Parenthetically, we're a lot less
20 honest about that than we should be. So I guess
21 what I am saying is that the morality of it, the
22 legitimacy of it by society is neither here nor
23 there. What is significant is the responsibility
24 of the individual for his own or her own
25 existence.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 60
2 MR. DOYLE: I can see that we also
3 have considerable interest in the audience for
4 questions. What I am going to do, because of the
5 time constraints, since we have a number of other
6 witnesses is take three questions from the
7 audience.
8 Why don't we start with the gentleman
9 in the back. If you could come up and get the
10 Mike, I would appreciate it.
11 A QUESTIONER: Hi, Judge. Yesterday
12 the special narcotics prosecutor was here, Mr.
13 Silbering, I think, and one of the things he said
14 was, if drugs were decriminalized, that any
15 regulation at all would continue the black market
16 situation relative to minors and that there would
17 be no lessening of the congestion in the courts
18 because of that, and that's one of the harms that
19 decriminalizers look to. I was wondering whether
20 you would comment on that.
21 JUDGE SWEET: First of all, he doesn't
22 know any more than I do. And we're both making
23 an estimate. I think the appropriate analogy is
24 alcohol and the enforcement -- well, two things.
25 The appropriate analogy is alcohol and the
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 61
2 enforcement of the distribution of alcohol to
3 minors.
4 The second thing is if you were, if
5 drugs were operating at a market level, it would
6 then eliminate to a very substantial degree the
7 effort to involve the young, to hook the young at
8 the outset, because the money would be out of it.
9 So, sure, there is bound to be some
10 problem because some people will try, kids will
11 try, maybe even, but the dollar motivation would
12 not be there. So I don't think it would be a
13 substantial problem.
14 As I say, I think what drives this,
15 what drives the dealers into the schoolyards is
16 money, and if that were gone, then I think you
17 would have a different result.
18 MR. DOYLE: All right, Eleanor.
19 Eleanor Piel is a member of our committee.
20 MS. PIEL: Your Honor, some months ago
21 you addressed a group at the Fortune Society.
22 The Fortune Society, as you know, is composed of
23 ex-offenders, mostly people of color, who have
24 gone through the criminal justice process, have
25 been incarcerated and come out, many of them
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 62
2 there because of drug problems or whatever,
3 connected with drugs.
4 I was very surprised you were not
5 received warmly in the sense that people did not
6 agree with your ideas. There was this prevailing
7 sense that drugs, that the use of drugs is wrong,
8 therefore, the laws are right even though these
9 were the victims of the laws.
10 Now, have you given any thought, and I
11 would like to be helped on it, since I'm on the
12 board of the Fortune Society, what kind of
13 arguments can you make that would register with
14 regard to the people who are the victims of our
15 drug legislation and enforcement that would be
16 persuasive? Because here are people who should
17 have a voice and should, it seems to me,
18 logically take your position and yet they don't.
19 JUDGE SWEET: I certainly well recall
20 the evening and there were, as you remember, some
21 who understood what I was saying and who agreed
22 with it and argued that the money was the
23 controlling factor in terms of the usage and what
24 caused the problem. So I think there is an
25 element of understanding there.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 63
2 I think perhaps the best way you can
3 tackle it -- drug use is not the problem in our
4 society. It is that we don't care enough about
5 each other. The problem is not using drugs, it
6 is the problem of not having jobs, education, et
7 cetera, et cetera.
8 And I think if those who have fallen
9 into that trap of hopelessness and resort to
10 these artificial means, if they could understand
11 that, what drug use was -- it might just as well
12 have been alcohol, it wouldn't make any
13 difference. In fact, it would be interesting to
14 know, parenthetically -- I don't know how you
15 would find it out -- among the disadvantaged what
16 is the drug of choice. I bet you it is alcohol.
17 And that also came up, that evening.
18 So maybe the only way you can do it is
19 to say, look, don't get fixed on the drug use or
20 on drugs as being the problem. That's not the
21 problem. The problem is that the society has
22 given some people a very hard case to solve and
23 you have to focus on that, not the drugs.
24 That's all I can think of. Whether
25 that would work or not, I don't know.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 64
2 MR. DOYLE: Yes, sir.
3 MR. ADLER: Good morning, Judge.
4 JUDGE SWEET: Hi.
5 MR. ADLER: In reading this report
6 which was very refreshing. The one issue that I
7 took with it, I would like to raise with you if I
8 may.
9 It seemed to depict a judiciary which
10 is fighting a rear guard action valiantly against
11 the excesses of law enforcement, and one of the
12 concerns that I had is that among the greatest
13 injury to our society is the abdication of the
14 judiciary, the federal judiciary and the
15 appellate level in particular, with regard to the
16 historic, almost sacred responsibility to
17 preserve the Constitution for another generation.
18 It seems to me, in some respects, it has joined
19 the war, and I wonder if you would comment on
20 that.
21 JUDGE SWEET: There are a number of
22 articles that had been written on this subject.
23 One title I recall is "The Drug Exception to the
24 Fourth Amendment." Honestly, I have to say that
25 I think the emotional baggage which this issue
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 65
2 carries, and that emotional baggage is that we
3 don't have a problem in this country, what we
4 have is drugs. Drugs are the problem. That's
5 the problem. Nothing else. It is just drugs.
6 The mythology that the drugs
7 themselves are the demons, they are forfeitable,
8 they are evil, all of that, rather than a
9 realistic understanding that they are but one
10 symptom of a condition and a result of a
11 complicated society, et cetera, et cetera.
12 I think that -- well, let me speak for
13 myself. I never challenged it until -- I mean I
14 guess I had been on the bench over 10 years. I
15 never really focused on it myself. So I can't be
16 too critical of judges who have not seen the
17 problem that you point out.
18 A specific which just really boggles
19 my mind is the, obviously, discriminatory penalty
20 differentiation, differential between crack and
21 cocaine. Absolutely irrational. You can't say
22 that that's a rational discrimination. There is
23 no objective evidence that that's a rational
24 discrimination upon which you can base a 300
25 times more punitive penalty. It is just not
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 66
2 there.
3 Some courts have said so, but -- and
4 I'm not sure -- perhaps Eleanor or some of you
5 would know how far it has gone up the chain. I
6 believe at the circuit level the discrimination
7 has been upheld. I declared the mandatory
8 mimimums unconstitutional. Others did as well,
9 basically, for the same sort of reasons.
10 Will the judiciary be tuned in more?
11 I suppose the answer, I guess, you probably
12 detect that I am phumphering because it is a
13 tough problem. It is a tough issue.
14 Look, I would like to say that judges
15 are never affected by public attitudes and
16 conventional wisdom and all of that sort of
17 stuff. But the fact is that they are affected.
18 Now, I think if we had a national
19 commission and we had a real honest, straight-out
20 factual display of the problem on both sides,
21 then I think judges would begin to understand
22 that it is more complicated than they think. I
23 think they tend to shrink and say, well, yes, the
24 bus stop exception, Fourth Amendment. You get on
25 a bus and you're shaken down because you look
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 67
2 like something. Now, is that right? We all know
3 it is not right. And yet that's upheld.
4 I think also there is a sense of,
5 well, it is drugs, and they are drug addicts or
6 drug dealers, drugs, drugs, drugs, you know, so
7 maybe it doesn't matter as much.
8 I think the courts could have been
9 more aggressive in understanding the
10 constitutional implications. That's what I
11 think.
12 MR. DOYLE: Judge, I am going to
13 exercise the chairman's prerogative and ask one
14 question, which is with regard to young people.
15 If we do not make drugs available like
16 alcohol to people, young people, let's say under
17 21, are we not going to have a situation in which
18 there would be a continued market for the drug
19 dealers and the schools and the neighborhoods who
20 would be exploiting that market? And how would
21 that fit into the model that you have in mind?
22 JUDGE SWEET: First of all, John,
23 these days you have got to be talking 18. You
24 have got to look out for that 21, it is worse
25 than you thought.
PIROZZI & HILLMAN 212-213-5858
1 jbp Sweet 68
2 MR. DOYLE: I stand corrected.
3 JUDGE SWEET: Whatever the number is.
4 Sure, it is really the same question the
5 gentleman asked a moment ago. Sure, there will
6 be some problem, but if drugs are no longer
7 criminally prohibited except for that group, the
8 money end of it will be gone. It won't be as
9 profitable.
10 There won't be the urge, the dollar
11 reward involved, and so I think what you would
12 find is what you find now, some experimentation
13 by the young and some cooperating institutions,
14 however you set it up, drug stores, whatever the
15 mechanism, who will perhaps violate the law. But
16 I don't see any reason to believe that it would
17 be of a different dimension than, say, the
18 illegal acquisition of alcohol by minors. I just
19 don't see why it should be any different.
20 MR. DOYLE: Thank you very much.
21 JUDGE SWEET: Great pleasure to be
22 with you.
23 (Applause)
24 MR. DOYLE: We have found it essential
25 to take about a 5 to 10-minute break at this
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 69
2 point. So we'll do that now.
3 (Recess)
4 MR. DOYLE: We're going to get
5 started. Would everyone please take their seats.
6 Our next witness is Jay M. Cohen who
7 is First Assistant District Attorney and counsel
8 to Kings County District Attorney.
9 Mr. Cohen.
10 MR. COHEN: Thank you.
11 I'd like to thank the Association of
12 the Bar on behalf of Brooklyn District Attorney
13 Charles J. Hynes for inviting us to participate
14 in this important and timely program. Although
15 you have already spent two full days hearing from
16 some of the country's foremost experts in this
17 area, we have a unique perspective about the new
18 directions which our nation's drug policy should
19 take.
20 Several events make the need for new
21 directions more imperative than ever.
22 The first has been little noticed,
23 even within the criminal justice community, but
24 it is a milestone, nonetheless. The United
25 States Department of Justice reported in
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 70
2 September 1994 that the number of inmates in
3 America's prisons has topped one million for the
4 first time in our history.
5 The second major event was the
6 election of last November, which leaves no doubt
7 that the public or at least a majority of the
8 electorate believes that one million prison
9 inmates is not nearly enough.
10 Some have read that the election
11 results as a mandate to simply do more of the
12 same anticrime policies of the past, but this is
13 not good enough. If we are going to keep
14 building more prisons, as we must, then those of
15 us in government owe it to the taxpayers to
16 insure that these additional cells are put to the
17 best use.
18 And we also owe them a criminal
19 justice system that uses every cost effective and
20 intelligent anticrime strategy at its disposal,
21 in addition to prison, so that we are smart -- as
22 well as tough -- on crime.
23 At the same time, other events should
24 cause anyone who is even considering the
25 abandonment of the prohibition against drugs, to
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 71
2 stop and think seriously about the implications
3 of such an experiment.
4 For example, a recent bill by the
5 Center on Addiction and Substance Abuse at
6 Columbia University found that 32 percent of
7 adolescents surveyed cited drugs as the biggest
8 problem they faced.
9 The next biggest problem -- crime and
10 violence in schools -- was named by 13 percent.
11 Two-thirds of these kids said that they would be
12 forced to make a choice about drugs, and more
13 than half of the older kids said that drugs --
14 including cocaine and heroin -- were ready
15 available.
16 Moreover, a federal survey released
17 last September found that teen marijuana use had
18 nearly doubled since 1992, as fewer young people
19 said that trying the drug was a "great risk."
20 Experts cited the increasing glamourization of
21 drug use as a major contributor to this problem.
22 It, frankly, escapes me how removing
23 the legal prohibition against drugs will
24 contribute to the "deglamourization" that has
25 proven to be essential to decreasing drug use,
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 72
2 especially by young people.
3 As another of your scheduled speakers,
4 Mathea Falco, says in her landmark book, The
5 Making Of A Drug Free America:
6 "The drug laws play a critically
7 important role in this effort to prevent drug
8 abuse by conveying social values and defining the
9 limits of permissible behavior. Realization
10 would signal a fundamental change in American
11 attitudes, implying tolerance rather than
12 disapproval of drug use. We cannot afford to
13 make this change, and we do not have to.
14 A major shortcoming of the current
15 debate about drugs and drug-related crime -- as
16 exemplified by the focus of these hearings -- is
17 that all too often, it appears that there is only
18 two sides to this debate.
19 The advocates of tougher drug laws and
20 more and bigger prisons and jails for drug
21 offenders on one side, and those who suggest
22 giving up the law enforcement involvement in
23 fighting drugs represents the other.
24 The advocates of even tougher drug
25 laws, including the current majority in Congress,
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 73
2 often cite studies such as one by Princeton
3 Professor John Dilulio, which concludes that "the
4 justice system in the United States is a
5 revolving door for convicted predatory street
6 criminals, who serve little time behind bars."
7 This is one reason, they suggest, that the crime
8 rate has more than tripled since 1960.
9 Yet, as you know, the number of
10 federal and state prison inmates has quadrupled
11 since 1973. New York State has more than tripled
12 its own prison capacity in only 14 years. Will
13 it take 10 times the number of cells to close the
14 revolving door and reduce crime? How about 100
15 times?
16 There aren't enough tax dollars to
17 finance that kind of expansion in a correctional
18 system that already costs the nation more than 40
19 billion a year to operate.
20 These same advocates also argue that
21 many prison inmates are repeat offenders who have
22 previously served sentences of incarceration, and
23 who will likely find themselves behind bars again
24 after their release.
25 That may well be a reason to build
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 74
2 even more prisons, but there is another way to
3 look at those troubling facts.
4 In New York State, drug crimes
5 accounted for 45 percent of all new admissions to
6 prison in 1992, and only 11 percent of new
7 admissions in 1980.
8 More drug offenders now go to state
9 prison each year than violent felony offenders.
10 The United States Justice Department
11 recently completed a study of the federal prison
12 system, and found nearly 13,000 low level drug
13 offenders with no criminal history, constituting
14 17 percent of all sentenced inmates.
15 Is it any wonder that "predatory
16 street criminals" do not serve more time behind
17 bars, and more prisons have not meant enough
18 security? Nonviolent drug offenders are
19 occupying too many cells, and they are returning
20 to their lives of drugs and crime upon their
21 inevitable release, and just as inevitable
22 rearrests for other drug-related crimes.
23 To some, this is cause to make the
24 drug laws even tougher; to others, like this
25 Association's committee on drugs and the law, the
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 75
2 high cost and insufficient return from
3 incarcerating drug offenders is an argument to
4 stop using the criminal laws, at all.
5 The answer, however, is not to
6 surrender to the frightening future of legalized
7 drugs. And what a violent future it would be!
8 For example, Dr. Kenneth Tardiff of Cornell
9 Medical College-New York Hospital, recently
10 studied New York City cocaine related homicide
11 victims, and he concluded:
12 "The drug itself causes people to act
13 violent ... and places themselves in danger."
14 Other studies have found similar
15 results among those who commit murder. And, we
16 all know that most people arrested in New York
17 and throughout the country, for any crimes, test
18 positive for drugs.
19 Clearly, crime and violence related to
20 drugs exists because of the drugs, not because of
21 the law.
22 An April 1995 report of the United
23 States Advisory Board on Child Abuse and Neglect
24 found that more babies and young children die at
25 the hands of their parents than in car accidents,
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 76
2 fires, falls or drownings. Violence in the home
3 is as much a danger to young people as gunfire on
4 the streets. And drug abuse, according to this
5 and other studies, is a major cause of child
6 abuse and neglect.
7 If our goal is to save future
8 generations, how will abandoning the drug war
9 help? An again in Mathea Falco's words:
10 "Legalization would have a chilling
11 effect on prevention efforts since it would shift
12 the balance of social approval toward drug use
13 and away from abstinence. Youngsters are
14 particularly sensitive to what they perceive to
15 be the values of their families, friends and
16 community."
17 Are we ready to embrace a future of
18 even more drug addicted newborns, dysfunctional
19 families, armed dropouts from school and society
20 -- fueled by government sanctioned drug
21 dispensers making drugs more accessible and
22 acceptable -- all in the unjustified hope that
23 some of the violence will stop?
24 We owe our communities, which are
25 struggling to prevent or eradicate the horrors of
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 77
2 drugs and crime, something much better than that.
3 To the people in these communities,
4 especially the poorest, this is not an academic
5 or intellectual exercise. It is a daily battle
6 to keep families together, and they need the law
7 to back them up.
8 In Brooklyn we know we can be "better"
9 and "smarter" on crime without giving up the
10 fight. Instead, we must make sure that prison
11 and jail cells are put to the best use and, at
12 the same time, give kids a way to avoid the
13 tragic cycle of drugs and crime, and give
14 offenders a way to get out of it.
15 Here is how we are accomplishing this
16 ... one cornerstone of our program is DTAP, the
17 drug treatment alternative to prison. DTAP is
18 the first prosecution/run program in the country
19 to divert prison-bound, felony drug offenders to
20 residential drug treatment. Begun in October
21 1990, DTAP targets all drug-addicted defendants
22 arrested in Brooklyn for class B felony drug
23 offenses who have previously been convicted of a
24 nonviolent felony. If convicted, the defendants
25 face mandatory prison sentences under New York
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 78
2 State's Second Felony Offender Law. This
3 encourages them to enter and remain in treatment.
4 The District Attorney's Office
5 carefully screens the pool of candidates, and
6 those with any history of violence are
7 ineligible. Qualified defendants are given the
8 option to defer prosecution and enter one of four
9 available residential, drug treatment programs --
10 for a period of 15 to 24 months.
11 Those who successfully complete the
12 strenuous program have the drug charges against
13 them dismissed; those who do not are brought back
14 to court by special warrant enforcement team we
15 have established in the District Attorney's
16 Office, and they are prosecuted on the original
17 charges.
18 To prevent relapse and reduce
19 recidivism, we have formed a Business Advisory
20 Council, which helps defendants who complete
21 treatment find employment, job training and
22 housing.
23 The results so far are extremely
24 encouraging and with the help of the State of New
25 York, other prosecutors are implementing similar
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 79
2 programs.
3 As of August 1995, 569 offenders had
4 entered the Brooklyn DTAP program. We have a
5 one-year retention rate of 60 percent, which one
6 expert recently described as "extraordinary,"
7 especially when compared with a reported one-year
8 retention rate of 13 percent for other
9 residential programs. 172 offenders have already
10 completed the program and had their charges
11 dismissed.
12 One reason is that we have backed up
13 the threat that those who failed to complete
14 treatment will be arrested, prosecuted and
15 incarcerated. 94 percent of the DTAP dropouts
16 have been returned to the court for prosecution,
17 and most have already been indicted, convicted
18 and sentenced to state prison.
19 Perhaps most important, the rearrest
20 rate for DTAP graduates who have been out on the
21 street for six months or more is only 13 percent,
22 as compared with the 40 percent recidivism rate
23 for comparable New York City felony drug
24 offenders who receive jail or prison sentences.
25 Think about this ... the cost of
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 80
2 residential treatment is 18,000 per individual
3 per year, as compared to 30-35,000 a year for
4 prison. Thus, DTAP has achieved one-third the
5 recidivism of prison at one-half the cost!
6 Moreover, our program has freed
7 hundreds of prison beds for murderers, robbers
8 and rapists, without the construction of a single
9 new cell and without giving drug-addicted sellers
10 a free ride.
11 It is already breaking the cycle of
12 drugs to crime to prison - for nearly 200
13 offenders. They are working or going to school,
14 and many are paying taxes for first time in their
15 lives, instead of draining tax revenues in prison
16 or committing crimes on the street.
17 DTAP demonstrates that we need not --
18 and should not -- abandon the drug laws to
19 achieve the needed results. In fact, DTAP uses
20 the second felony offender laws to get nonviolent
21 drug addicts to enter and complete the treatment
22 they desperately need.
23 Another cornerstone of our program
24 aims to keep young people from ever needing DTAP.
25 Project Legal Lives brings the
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 81
2 criminal justice system to Brooklyn's elementary
3 school classrooms. Members of the District
4 Attorney's staff, private attorneys, corporate
5 volunteers, judges from Supreme and Criminal
6 Court and teachers work together to teach
7 students about the law and its role in their
8 lives.
9 We spend 10 hours a month throughout
10 the school year, teaching fifth graders about the
11 dangers of drugs and crime, and the horrors of
12 hatred and bias.
13 In the 1994-95 school year, Legal
14 Lives reached more than 10,000 Brooklyn students,
15 and their parents in 330 classrooms. 600 staff
16 members of the District Attorney's Office and 300
17 teachers collaborated on the bi-weekly
18 interactive class work, take-home lessons, a call
19 in radio show on WNYE-FM and mock trials. This
20 year Legal Lives will expand to 400 fifth, sixth
21 and twelfth-grade classrooms throughout New York
22 City and Long Island, teaching more than 15,000
23 students.
24 Legal Lives is being replicated by
25 district attorneys in Los Angeles and San
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 82
2 Francisco, California; Springfield and Boston,
3 Massachusetts; Indianapolis, Indiana; Syracuse,
4 Utica, Lake George and Albany in New York;
5 Atlanta, Nashville and New Orleans.
6 Tough treatment, law-related education
7 and the swiftest, most aggressive and successful
8 prosecution of violent and repeat offenders.
9 This combination represents the first real effort
10 in our county in decades to fight the so-called
11 "drug war" differently. To stop the inefficient
12 and expensive strategy of relying almost
13 exclusively on prison as the sanction for
14 nonviolent drug offenders. But at the same time,
15 not to abandon the children and families of
16 Brooklyn to the personal and social tragedy of
17 legalization.
18 Despite what some might think there is
19 reason for hope. Kings County in 1994 had the
20 largest percentage decrease in murders and
21 robberies of any county in the city. In fact,
22 Brooklyn had 49,000 fewer robberies, burglaries,
23 assaults and other so-called index crimes in 1994
24 than in 1990. A reduction of 31 percent that
25 puts us far ahead of other communities around the
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 83
2 country.
3 We are using the laws more effectively
4 to protect our communities.
5 Also, New York State has taken a small
6 but significant step toward making better use of
7 its prison resources, by reforming our sentencing
8 laws so that violent offenders spend more time
9 behind bars, while nonviolent drug offenders can
10 get treatment instead of incarceration.
11 Let me close with an illustration of
12 what we can, and in my judgment must, accomplish.
13 Almost three years ago, on December
14 17, 1992, a beloved elementary school principal,
15 Patrick Daly, was caught in an afternoon
16 crossfire in the Red Hook Housing Projects. He
17 was looking for an 11-year-old child who had left
18 school after an argument. Mr. Daly took a 9 mm
19 slug to the chest and died on the spot.
20 Three young people, aged 17 and 18,
21 were convicted and have been in prison for this
22 murder for terms of 25 years to life. The three
23 were high school dropouts who were engaged in a
24 shootout about drugs and who turned the common
25 grounds of the Red Hook housing development into
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 84
2 a killing field. All three had been arrested
3 several times before.
4 A police officer who patrolled in Red
5 Hook described life there this way ... "the guy
6 with the automatic is the guy who runs the show.
7 And once they have the gun, they use it. If they
8 are 'dissed' or if someone moves in on their
9 territory, they have to prove themselves by
10 shooting someone."
11 Contrast those observations with one
12 of our DTAP graduates, who was quoted in a New
13 York Times article in April of last year. When
14 he was arrested on drug charges in 1992, just
15 months after a prior drug arrest, he faced
16 several years in prison as a nonviolent, repeat
17 offender. Instead, he chose DTAP and drug
18 treatment. Today he is a paid counselor at a
19 drug treatment center.
20 "I may have been arrested," he told
21 the Times, "but I was really rescued."
22 That is something we can all welcome.
23 Thank you.
24 (Applause)
25 MR. DOYLE: Thank you very much. Why
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 85
2 don't we start at the other side of our panel and
3 work toward the right. Kathy.
4 THE CHAIR: Thank you very much for
5 your remarks. The discussion about DTAP was
6 particularly interesting, and I came in a little
7 bit late on your remarks, but did you express a
8 view on mandatory mimimums, particularly in view
9 of your integration of the mimimums with the DTAP
10 program?
11 MR. COHEN: We supported the efforts
12 in the state legislature and the governor this
13 year to make some changes in the second felony
14 offender laws. On the other hand, as I also
15 indicated, as far as DTAP is concerned, one of
16 the -- one of the reasons for the success of the
17 program is that individuals who would otherwise
18 be extremely reluctant to embrace treatment, to
19 go to Daytop or Phoenix House or some other place
20 upstate for an extremely difficult 15 to 24
21 months in order to turn their lives around, these
22 individuals need a very strong incentives to do
23 that.
24 The law as it exists right now gives
25 them that incentive by saying to them you go, you
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 86
2 satisfactorily complete this program, and we'll
3 drop the charges. But if you don't, if you fail
4 at any step along the way, we're going to
5 prosecute you. Because most of these are
6 relatively simple buy and bust street level drug
7 cases, we have the ability to prosecute you two
8 years down the road and we are going to convict
9 you and we're going to send you to state prison.
10 One of the problems we had with the
11 changes in Albany and in the mandatory second
12 felony offender law is that they wouldn't be
13 accompanied by the treatment availability on the
14 one hand and by the hammer on the other hand,
15 whether it be intensive supervision or close
16 scrutiny to try and encourage, persuade, coerce,
17 if you will, people to stay in treatment. So
18 that's a long answer perhaps to your question.
19 In our view, at least, the idea is not
20 to abandon the law but to use the law in much
21 better ways than it has been used up until now.
22 THE CHAIR: I think that's very
23 sensible. If I could ask one more question.
24 While these programs have obvious
25 benefits, what about the essential black market
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 87
2 that's created by the prohibitionist system? And
3 I'm sure the effects of that are particularly
4 significant in communities such as Brooklyn.
5 MR. COHEN: Certainly nothing that I
6 have seen so far indicates, and I think the judge
7 himself when asked similar questions had a very
8 difficult time answering them. I don't think
9 there is anything that can give us any sense that
10 the kind of black market that creates street
11 violence will not exist if drugs are legalized.
12 The issue has already been raised
13 about the prohibition to minors, and other issues
14 related to the kinds of drugs that are going to
15 be sold, where, how, what. And unless all of
16 those questions can be answered, it strikes me
17 anyway, that we're taking a risk with very little
18 indication of a return. And that's a risk that
19 doesn't have to be taken.
20 MR. MARKEWICH: Perhaps you're too
21 young or at least you look too young --
22 MR. COHEN: Absolutely not.
23 MR. MARKEWICH: -- to remember, and
24 I'm being largely facetious, the glorious day in
25 our State's history when I was a Manhattan
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 88
2 Assistant District Attorney in the late '60s when
3 the Rockefeller laws went into effect.
4 Seriously, at that time what was being
5 emphasized in the passage of the Rockefeller drug
6 laws was what I guess was then called the DACC
7 and then became the NACC, which was supposed to
8 achieve on a statewide basis, large scale by
9 compulsory treatment, what you are endeavoring to
10 do on a much smaller scale.
11 Now, today we remember the Rockefeller
12 drug laws only for the draconian sentencing that
13 still seems to survive long after the NACC has
14 ceased to function, assuming that it ever really
15 did function, except as a place for the late and,
16 I'm serious, lamented Irving Lang did I have a
17 job, since it all was his idea, I think. But it
18 didn't work, apparently.
19 Number one, if you know or if you have
20 ideas on it, since I assume you must have studied
21 it as part of setting up this program, why did it
22 not work? And if it did not work, why would your
23 program work if implemented on a larger scale to
24 the point where it is a viable alternative to
25 anything except on a small scale?
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 89
2 MR. COHEN: You are right, I am too
3 young to remember that, but not too young to have
4 at least taken a look at some of the things you
5 are talking about.
6 I think part of the answer lies in why
7 the state, I mean after all these years, and I
8 think this sort of almost gets back to the other
9 question about mandatory mimimums as well to put
10 them together. After all these years in which
11 people have talked about second felony offender
12 reform, why suddenly did an admittedly Republican
13 conservative governor and a Republican
14 conservative senate embrace for the first time
15 perhaps not every second felony offender should
16 go to state prison.
17 One of the reasons is the economic
18 reason I alluded to and I think the judge
19 mentioned. It has become extraordinarily
20 expensive to lock everybody up and that the
21 alternatives, the things like DTAP or things like
22 the state claims it is going to do, are much
23 cheaper. But those alternatives would only work
24 and they will only save that kind of money in the
25 -- will only save that kind of money in the long
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 90
2 run if they work, if they are accompanied by the
3 kind of investment and resources and approach
4 that will make them succeed.
5 So I think that a lot of the issues
6 that you have raised, even though we may disagree
7 with the ultimate conclusion of the majority of
8 them, I think a lot of the issues you have raised
9 and others have raised about rethinking our drug
10 policy and the economics of it are going to cause
11 people to embrace these alternatives, not because
12 they like them but because they want them to
13 succeed.
14 If they want them to succeed, if there
15 is a will, then they will. I don't know what
16 reason there was in the 1960s for setting up DACC
17 and NACC and everything like that, but I do know
18 that the reason we have set up this program is
19 that the alternative didn't work and cost too
20 much money.
21 If those are the reasons why programs
22 like ours are going to expand, then maybe they
23 have a better future ahead of them than what
24 happened 30 years ago.
25 MR. MARKEWICH: If I may, I think you
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 91
2 may have actually indirectly answered part of my
3 question.
4 MR. COHEN: I tried not to answer any
5 of it.
6 MR. MARKEWICH: Maybe not intending
7 to, that is. It occurs to me, at least from a
8 dim historical perspective, that one of the
9 things that may have gone wrong with NACC aside
10 from the fact that there was a good deal of civil
11 libertarian objection to it from the left, is
12 that from the right there was really an
13 unwillingness to put the financial resources into
14 it, and the financial resources continued to
15 expand into prisons and, therefore, NACC never
16 really got off the ground in terms of its ability
17 to treat.
18 MR. COHEN: If you look at the reasons
19 why the governor said he was proposing and
20 supporting this second felony offender reform
21 wasn't because he thought there were too many
22 drug offenders in prison, it is because he wanted
23 to make room in his system, a system which he
24 realizes he can't expand forever.
25 He wanted to make room in his
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 92
2 correctional system for violent and repeat
3 offenders. And the only way that he can succeed
4 in making room in that system for violent repeat
5 offenders is that the individuals who are given
6 this other alternative don't come back, and if
7 they look at it that way, then perhaps the
8 investment will be there that will make these
9 alternatives work.
10 MR. DOYLE: Steve.
11 MR. KASS: Thank you. I want to
12 commend you, Mr. Cohen, and the District
13 Attorney's Office for the efforts you are making
14 and for your presentation this morning.
15 I find it interesting that a common
16 ground that you clearly have with the committee's
17 report is a negative assessment of the present
18 system. But what you really suggest rather than
19 legalization, a more sophisticated multi-tiered
20 kind of enforcement strategy combined with the
21 treatment is preferable.
22 I'm sure that is certainly preferable
23 to the present system. But like the chair of the
24 committee, I wonder, to what degree your system
25 of forced treatment, which works well for those
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 93
2 you can get your hands on pretty well, leaves in
3 place the current economic incentives for --
4 which affect all those you don't get your hands
5 on -- the tremendous jackpot profits that are
6 available to people selling, and the incentives
7 they have to keep bringing new users into the
8 system.
9 I wonder what your comments are on
10 that, other than to say legalization is not going
11 to help or decriminalization is not going to help
12 on that either?
13 MR. COHEN: Without really knowing
14 what legalization means, it is kind of hard to
15 answer how those economic incentives would
16 change. But it is hard for me to conceive that
17 legalization means selling crack in the
18 communities of Brooklyn. And it has already been
19 indicated that legalization does not mean
20 selling, probably does not mean selling serious
21 drugs to minors.
22 If that's the case, then, what
23 indication do we have that the economic and
24 noneconomic reasons that young people embrace the
25 culture of drugs and guns and violence are no
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 94
2 longer going to be there? That they are no
3 longer going to hang out, that all of a sudden
4 all of the people who are engaged in this kind of
5 violence in our communities aren't going to be
6 doing that anymore, and that the next generation
7 of kids is not going to embrace the same violent
8 culture that they have, especially, if we're
9 saying to them, drugs are okay to this extent.
10 They are just not okay for you and they are not
11 okay this way.
12 I don't see how that message is going
13 to -- that carrying out of that message is going
14 to change the cultural violence in any
15 significant way. And if it doesn't change the
16 cultural violence, then whatever we are trying to
17 accomplish hasn't been achieved and at the same
18 time we have created enormous risks, because I
19 don't see how anybody could disagree with the
20 idea that legalization will mean increased drug
21 use.
22 I mean you have to ask, to get back to
23 the question that was asked before of the judge,
24 and I believe it may have been you who raised
25 this issue, about the troubling studies
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 95
2 indicating that one-third of black men are
3 involved in the correctional system and those are
4 extremely troubling. And they are probably in
5 part behind the great divide we have seen in
6 response to the Simpson verdict.
7 But you have to ask why does somebody
8 like Charlie Rangel disagree. He's not a
9 conservative Neanderthal. Why do the inmates
10 disagree with the question raised, the inmates
11 who have seen it? Why does our communities
12 disagree?
13 You can go from Brooklyn Heights and
14 East New York and the response is the same. We
15 want you to help us, do a better job, but we
16 don't want you to unleash this menace on us that
17 is already here, and I think they are right.
18 MR. DOYLE: Agatha?
19 MS. MODUGNO: No further questions.
20 MR. DOYLE: Do we have any questions
21 from the audience? Why don't we start again with
22 the back. If you can step up.
23 A QUESTIONER: I was wondering how you
24 approach the problem of drug mules? That is, a
25 certain percentage of your nonviolent, low-level
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 96
2 drug offenders are not themselves drug users.
3 MR. COHEN: That's a good question.
4 We don't treat nonaddicted drug sellers any
5 differently under the law now than we ever did.
6 If someone is in a community of ours selling
7 drugs on the corner, then they will face, as far
8 as we're concerned, the penalty that the law now
9 provides and they probably should continue to
10 face that penalty.
11 We don't have an airport, we don't
12 have much of a harbor, so it is not like we have
13 -- we don't have a lot of cases of defendants
14 coming, being importuned in countries overseas to
15 bring in drugs, but what we do have are a lot of
16 nonaddicted drug sellers ruining neighborhoods
17 and we will treat them as harshly under the law
18 as we think appropriate.
19 A QUESTIONER: Are you saying, then,
20 that if you pick up two drug dealers, one of whom
21 is a user and one of whom is not, the one who is
22 not a user automatically goes to jail while the
23 one who is a user gets the option of a year in
24 treatment and not going to jail?
25 MR. COHEN: That's a question that a
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 97
2 lot of people ask us and sometimes they even go
3 the next step, which is: Why should an offender
4 get access to treatment that a nonoffender, an
5 addicted nonoffender should have?
6 Our response is that the goal is to
7 try and accomplish something for the communities
8 that we serve. And if we can get addicted
9 offenders into treatment instead of prison so
10 that when they come out, they won't be offenders
11 anymore, then we have accomplished something for
12 the communities we serve. If someone could find
13 us a program that would take nonaddicted
14 offenders and turn them into productive citizens,
15 I'm sure we would be more than happy to do
16 something similar.
17 MR. DOYLE: We will take one more
18 question from the audience. Yes, sir.
19 A QUESTIONER: What would you say to
20 those of us who have no problem, but who just
21 like certain drugs, want to keep on using them
22 regularly, and how would you like it if something
23 you like were made illegal?
24 MR. COHEN: There are probably a few
25 of those. I will just respond the way I
PIROZZI & HILLMAN 212-213-5858
1 jbp Cohen 98
2 responded before. That is, I just don't see any
3 reason why the present policy about legalization
4 should be changed.
5 MR. DOYLE: I would like to add my
6 thanks and the thanks of the other members of our
7 committee to the District Attorney of Kings
8 County for making you available to testify before
9 us. It has been very, very helpful to us.
10 (Applause)
11 MR. DOYLE: Our next witness is Mr.
12 Allan Van Gestel. Mr. Van Gestel has come down
13 from Boston to join us today, and we very much
14 appreciate his being here.
15 He is a partner in the Boston law firm
16 of Goodwin, Proctor and Hoar. He is a graduate
17 of Boston University Law School and Colby
18 College. He has been very, very active in a
19 number of community activities, some of which
20 have directly involved our problem.
21 He served as chairman of the Boston
22 Bar Association Task Force on Drugs in the
23 Courts, which produced a detailed study of the
24 effect of drug-related cases on the Massachusetts
25 court system. He is a member of the executive
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 99
2 committee of the Supreme Judicial Court Standing
3 Committee on Substance Abuse. He is an expert in
4 a number of areas of litigation including the
5 rights of Native Americans.
6 Thank you very much, Mr. Van Gestel,
7 for joining us.
8 MR. VAN GESTEL: Thank you very much.
9 I bring you the greetings from the provinces up
10 the Post Road. In microcosm, it may be deflating
11 to your egos, if that is at all possible here in
12 New York, to know that you are not unique in the
13 problems you face.
14 Admittedly, a much smaller scale, but
15 Boston and probably every other city in this
16 country faces exactly the same kinds of problems.
17 But I think because you are the Association of
18 the Bar of the City of New York, and while your
19 Association isn't quite as old as ours -- John
20 Adams was our founder -- you certainly are
21 probably the preeminent Bar Association in the
22 United States, and I think it is significant and
23 important to this issue for you people to have
24 done the work that you have done to have produced
25 the report you have produced and to make the
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 100
2 effort to publicize the issue.
3 The only thing that saddens me is how
4 small the audience is, and I think given the
5 extent of the problem, it is too bad that people
6 don't come out and listen and learn, because I
7 think when you listen and learn, the ways of
8 resolving the problem become much more clear.
9 Certainly what becomes clear, what
10 became clear to us in Boston and what we did, we
11 did a study that dealt only with Suffolk County,
12 which is the county in which the City of Boston
13 is located, we studied each of the courts. The
14 Superior Court being the principal trial court,
15 like your Supreme Court but the district courts
16 being the lower courts in the system, the Probate
17 and Family Court, the Juvenile Court, the Housing
18 Court, every one of the courts in the City of
19 Boston is clogged and overwhelmed with: How do
20 you deal with this particular problem?
21 Just as you face the situation here,
22 the Police Department in the City of Boston on
23 the one hand tries very hard, and on the other
24 hand has had its share of corruption that comes
25 from the very fact of dealing with these
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 101
2 particular drugs that are captured.
3 The District Attorney's Office is
4 overwhelmed, our prison system is estimated, in
5 Massachusetts a much a smaller system than yours
6 but nevertheless a system, to be at 180 percent
7 of capacity. Governor Weld, who is thinking of
8 abolishing the Secretariat for Education in
9 Massachusetts, has just put forward a bond issue
10 for $750 million to build yet more prisons in
11 Massachusetts.
12 At the present time there isn't a
13 prison in Massachusetts where you cannot acquire
14 as a prisoner your drug of choice. There isn't a
15 school in Massachusetts where you cannot acquire
16 your drug of choice.
17 Today, the 12th of October, 1995, is
18 my daughters 17th birthday. She goes to a very
19 fine little private school on Cape Cod. I asked
20 her, "Laura, tell me something about drugs." She
21 said, "Dad, I don't want to say anything about my
22 friends."
23 I said, "I don't even want to know
24 their names, and I don't even want to know
25 perhaps whether you are involved, but can you at
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 102
2 Falmouth Academy get drugs? Do the kids at
3 Falmouth Academy use drugs and where do you have
4 to go? Do you have to come up from the Cape to
5 Boston to get them?"
6 The the answer is yes, you can get
7 them at Falmouth Academy. Yes, they do use them
8 at Falmouth Academy. No, you don't have to go to
9 Boston to get them. You can get them on the
10 streets of the cape, even in the winter when the
11 tourists have gone for the summer.
12 You can get drugs in the police
13 department. You can get drugs, probably in my
14 law office. There isn't a place where drugs
15 cannot be acquired.
16 What's the point of all this? The
17 point of all this, I think, is you have something
18 that is pervasive and something that demonstrates
19 an immense ambivalence on the part of the general
20 public.
21 On the one hand, there is a screaming
22 public who say "Do something about these dirty
23 evil people, lock them up so they don't destroy
24 our society." On the other hand, there is an
25 unwillingness to spend the money, particularly if
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 103
2 it comes to the side of the problem that has best
3 been shown to resolve it. You don't resolve a
4 man's sickness by sending him to jail. You
5 resolve a man's sickness by treating him.
6 And I think if there is any lesson
7 that comes out of all these studies, it has to be
8 that putting someone in jail where he or she gets
9 nothing but the drugs they want and an education
10 of future job employment that has nothing to do
11 with the legitimate market and is then released
12 to the street after five years or 10 years of
13 that kind of education, still addicted and with
14 no ability to go out and be a productive member
15 of society, when -- and I commend Mr. Cohen from
16 the District Attorney's Office for the program --
17 if that kind of program could be presented
18 everywhere, we would be so much better off than
19 we are.
20 The question was asked why didn't it
21 work years ago when Governor Rockefeller's
22 legislation was invoked. Although I wasn't here,
23 I am old enough to have been around at that time.
24 I think part of the reason, and I
25 think that comes out of the study that we did, I
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 104
2 think it comes out of what you did. There is a
3 concept of imminence that takes place and it
4 comes when there is insufficient education, and I
5 think what you folks have done is make a major
6 contribution, if it gets well-enough publicized
7 to educating people so that the imminence of the
8 problem is known.
9 I don't think back when the
10 Rockefeller laws were in place anybody realized
11 how many people would be in jail, how much it
12 would cost, how much the entire criminal justice
13 system would be corrupted by the attempt to deal
14 with it solely 100 percent in the criminal
15 justice system.
16 I think reports such as what you have,
17 such as what we did in our smaller way in Boston,
18 are helping. I think we have done something up
19 there that you might think about trying to
20 encourage here.
21 Our reports came out, two reports, one
22 called Drugs and Justice, a System Abandoned, the
23 other Drugs in the Community, a Scourge Beyond
24 the System, were issued in 1989 and 1990. The
25 Boston Globe, which is now related to New York
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 105
2 through its new parent, the New York Times,
3 publicized it very heavily and everything died.
4 We made a lot of wonderful recommendations about
5 how to deal with a whole lot of things and not
6 much happened.
7 The Chief Justice of the Supreme
8 Judicial Court of Massachusetts, which is our
9 high supreme court, the equivalent of your
10 Appeals Court said to me -- I was chair of the
11 committee -- "Allan, very nice report but I
12 expect it is going on the shelf together like all
13 other reports."
14 I said, "Chief I would like to talk to
15 you about that." I have met with the chief a
16 couple of times over the years and two years ago
17 he was convinced, and he convinced all of the
18 Justices on the Supreme Judicial Court, to do
19 their own study and report on the situation in
20 Massachusetts. Their report came out in March of
21 1995, a matter of just treatment of substance
22 abuse and the courts.
23 Under that program, a standing
24 committee has just been assembled, and it is our
25 job to try and find a way to implement the
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 106
2 report. But what's important about it, I think,
3 is a couple of things.
4 First, it has the imprimatur and the
5 push of the full bench of the Supreme Judicial
6 Court in Massachusetts.
7 Secondly, the Supreme Judicial Court
8 in Massachusetts in its report has taken the
9 position that the use of drugs is much more of a
10 medical problem than it is a criminal problem.
11 And, third, has issued an order that
12 every judge in Massachusetts must undergo
13 training in order to understand and recognize
14 drug related issues in his or her courtroom,
15 whether it is a juvenile court, a probate court,
16 a district court with battered women being
17 treated or the regular criminal system that you
18 see, even in the civil courts.
19 What the court is going to try and do,
20 and we're going to try and help the court do
21 that, is to get the governor on board to tell him
22 that $750 million in prisons would be better
23 spent, yes, we do need some more prisons, but it
24 would be better spent if much of it were put in
25 assist the court in its program.
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 107
2 The Speaker of the House of
3 Representatives is already on board. What the
4 court wants to do, and I smiled and nodded my
5 head when Mr. Cohen was speaking, the court wants
6 to be in a position to get rid of the minimum
7 mandatory laws but to have the power to order
8 mandatory treatment.
9 The Supreme Court recognizes, I think,
10 as people who have studied alcoholism realize
11 now, you don't have to hit rock bottom before you
12 are ready for treatment if there is the right
13 push. And the judges, as they say, can very well
14 take you long before you are at the bottom, out
15 into the hall on into the elevator and right down
16 and send you off to treatment.
17 And if we can convince the governor
18 and the legislature to pump at least half of the
19 money, or maybe even less than that, into a
20 mandatory treatment program run by the courts,
21 because the courts are in a unique position,
22 again, as Mr. Cohen suggested, because they come
23 at people at a time when they do have some
24 control over your life and they come at people in
25 a unique way in which they can do something for
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 108
2 you.
3 The issue of decriminalization is a
4 very difficult issue and, although, I would favor
5 it, I don't think the public is ready to favor
6 it. And I don't think that those of us who think
7 it is the way to go have yet made the case.
8 I think, therefore, that what has to
9 happen is for awhile we have to work on educating
10 those people who can set up the systems and then
11 try to run the systems just like the District
12 Attorney in Brooklyn is doing and have success
13 from those systems and build some confidence in
14 the general public.
15 The general public has been told for
16 too many years that we have a war, that there is
17 a scourge, that if we only increase the
18 penalties, somehow or other that will solve the
19 problem. Penalties are no longer particularly
20 effective in this society.
21 We have a whole generation of people
22 who shoot each other for T-shirts. The penalty,
23 the thought of being caught and sentenced is
24 hardly a factor. Our criminal justice system
25 these days for the most part is not in the
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 109
2 deterence business, it is in the revenge
3 business. It is in the retribution business, and
4 revenge and retribution are not the way to treat
5 a sick man.
6 But I think we have a long way to go
7 in convincing the public before we get there. So
8 while I support the majority aspect of the
9 Association's report, I am highly respectful of
10 the sensitive statements by those who file the
11 separate report.
12 I think your effort is a great start,
13 but you have to really move on the education
14 front and move to get your legislators and your
15 governor, your district attorneys and others to
16 get on board and make treatment work and keep
17 track of the dollars so that you know what it is
18 costing and keep track of the statistics so that
19 you can then tell the story.
20 There was, just on this criminal
21 system, there was a very, very interesting study
22 that many of you are probably familiar with by
23 the American Bar Association a couple of years
24 back. It says, and I'm quoting from our report,
25 because we quoted it, "Of the approximately 34
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 110
2 million serious crimes committed against persons
3 or property in the United States in 1986," which
4 was the year they were studying, "approximately
5 31 million" -- 31 million out of the 34 million
6 -- "never were exposed to arrest because they
7 either were not reported to the police or if
8 reported, they were not solved."
9 To suggest that the criminal justice
10 system that grabs only -- well, those statistics
11 tell you only 9 percent of people committing
12 crimes is in some way going to solve the drug
13 problem, it is just mindboggling when you really
14 get down to the facts.
15 You need some clout. I don't know the
16 total answer to Mr. Cohen at this time. I think
17 there is some merit in what he says, that unless
18 you have some clout you are not going to be able
19 to force people into treatment. But I think a
20 combination of doing that and then getting a
21 better sense in society. Would you have thought
22 five or ten years ago that you walk by any major
23 building in Boston or New York, even in the
24 bitterest cold days, you see workers out there
25 smoking instead of smoking in the building.
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 111
2 People can be educated to do things, but it
3 requires a whole lot of work.
4 And my sense is we're not quite ready
5 to say let's take everything off, but we are
6 ready to start programs. And I think the time is
7 right to make them work, at the same time I would
8 not back off one bit from what you are doing
9 because you need to present these issues to get
10 people talking about them. It is only when they
11 talk that they will move from one place to the
12 other.
13 I think we're starting to move in the
14 right direction. Thank you.
15 MR. DOYLE: Thank you very much.
16 Why don't we start on this side with
17 our panel again. Agatha, do you have a question
18 for Mr. Van Gestel?
19 MS. MODUGNO: Yes. Just generally.
20 We have been talking about the decriminalization
21 issue. We haven't really, incidentally, focused
22 or you haven't specifically focused on the
23 differences between soft and hard drugs. I was
24 wondering if you had any particular thoughts
25 about that.
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 112
2 You said that we have been so educated
3 that all drugs must be fought. Do you think that
4 the separation that was discussed in the
5 Netherlands between relatively low harm and high
6 risk drugs could be made here as a first step?
7 MR. VAN GESTEL: The Netherlands is a
8 place I love, where my father was born, and
9 that's why I have the funny name. I was in
10 Amsterdam. I think Mr. Markewich said that the
11 Netherlands is a different kind of society. I'm
12 not sure it is. To me the Netherlands are
13 Amsterdam and rest of the country is like New
14 York City and upstate.
15 MR. MARKEWICH: That's true. My
16 daughter has told me. She was in Utrecht.
17 MR. VAN GESTEL: I don't think it is
18 so much soft and hard in my view, as user and
19 seller. It seems to me that's where the line
20 could be drawn.
21 A study was just finished by the
22 Boston Globe about three weeks ago on the effect
23 of the mandatory minimum sentences in
24 Massachusetts, and ours are even, if I may say it
25 this way, worse than yours. The penalties are
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 113
2 higher for smaller and smaller amounts, combined
3 with the drug forfeiture laws.
4 In Massachusetts under the forfeiture
5 laws, the money stays with the district attorney.
6 What has happened is that overwhelmingly
7 small-time users are going away for 8 and 10
8 years and big-time sellers, because they make a
9 deal to forfeit billions of dollars to district
10 attorneys, are never going to jail at all. It
11 has utterly corrupted the system.
12 I think the focus should be on the
13 big-time people totally, and I think users ought
14 to be very, very much targeted for treatment. I
15 could see drawing a line saying, decriminalize
16 use, don't make that a crime, but keep improper
17 sale and distribution a crime.
18 MR. DOYLE: We have noted that you
19 have referred to some reports that you have with
20 you. Could we make them a part our record?
21 MR. VAN GESTEL: Certainly.
22 MR. DOYLE: You can just leave it with
23 us and it will be part of the material that we
24 use to do our follow-up reports.
25 Steve.
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 114
2 MR. KASS: Thank you. I want to also
3 thank you, Mr. Van Gestel, for representing the
4 Boston community.
5 One of the questions that have been
6 asked, and Mr. Cohen was the most recent, with
7 respect to a proposal to decriminalize. How are
8 you going to avoid sending a signal throughout a
9 society of drug users that it is okay?
10 MR. VAN GESTEL: Assuming that signal
11 isn't already there, ready and available
12 everywhere you go.
13 MR. KASS: Maybe I should have made
14 that qualification.
15 Sometimes the proposal that the person
16 be treated, as an essential matter, be treated
17 essentially as a medical issue, suggests, like
18 other medical conditions, it would be
19 inappropriate, I take it, for a civil society to
20 discriminate against drug users even if they
21 were, particularly if they were not committing a
22 crime. I wanted to ask you your judgment on
23 that.
24 MR. VAN GESTEL: I missed that part of
25 your question. How is a civil society
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 115
2 discriminating against drug users by having the
3 use of drugs decriminalized?
4 MR. KASS: I want to come to the
5 specific hypotheticals. It is not proper in many
6 jurisdictions to discriminate against employees
7 on the basis of a medical disabilities. In some
8 cases it is not proper to refuse to grant
9 apartments for a variety of reasons. Many of
10 those who are concerned about decriminalization
11 suggests that landlords and employers ought to
12 have the right not to rent to or not to hire drug
13 users even if they are not guilty of a crime.
14 MR. VAN GESTEL: I assume you are
15 picking them over alcohol and tobacco and other
16 things?
17 MR. KASS: I am asking you --
18 MR. VAN GESTEL: I don't see a
19 difference, to be candid with you. I think if it
20 is truly an illness, I don't think someone should
21 be discriminated against because of it.
22 Obviously, if it affects his or her performance
23 in their job, then you can't go to work. If
24 someone, however, is illegally selling, let's
25 assume, in an apartment down the street here,
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 116
2 someone starts selling bourbon at a nickel a
3 bottle, I think that landlord has every right to
4 throw them out same as a drug dealer. It is the
5 drug dealer that ought to bear the brunt of the
6 concern not so much the user, but the person who
7 is sick.
8 MR. DOYLE: Dan.
9 MR. MARKEWICH: I very much appreciate
10 your position insofar as it favors at least in
11 the ordinary case treatment over incarceration,
12 although I still don't really understand why when
13 we tried it previously it didn't work, even
14 though I think there is merit to your comments on
15 the subject.
16 Is there a certain paradox, however,
17 in your position regarding decriminalization as
18 it stands side by side with your position
19 regarding, shall I say, compulsory treatment?
20 I regard drug abuse, generally
21 speaking, as a sickness or an illness that,
22 generally speaking, justifies treatment rather
23 than punishment or at least as an alternative to
24 punishment. Now, with drugs illegal, those who
25 commit the crimes of possession or sale of drugs
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 117
2 can be required to undergo treatment as an
3 alternative to incarceration.
4 If you decriminalize drugs, you will,
5 I think, perforce, have either as many or more
6 drug abusers, as you do now. I don't think you
7 will have fewer. You will have either as many or
8 I think more likely you will have more. Yet by
9 decriminalizing drugs, you will have a reduced
10 bases for compelling treatment, because drug
11 abusers who have not committed nondrug crimes
12 will no longer be able to be forced into
13 treatment.
14 It seems to me that the result of that
15 is that you will have either as many drug abusers
16 as you do now or more likely more drug abusers as
17 you do now with a reduced ability on the part of
18 society to force them -- and I know force is a
19 strong word, but I think it is probably the
20 appropriate word -- to be treated for their
21 condition.
22 I wonder if you could comment on this,
23 which may be more syllogistic than logical, but I
24 think it is logical.
25 MR. VAN GESTEL: Let me suggest that I
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 118
2 respectfully don't think it is logical when you
3 think about it.
4 First, it wasn't for nothing that I
5 mentioned that of 34 million crimes, only 3
6 million get into the system. I think as long as
7 you continue to treat the drug problem as a
8 criminal problem, you are going to divert the
9 funds that will be used to educate in an imminent
10 way, not just a policeman once a month going to a
11 grammar school, but really educate people, really
12 provide treatment on demand so that it is there
13 when somebody wants it, when somebody's family
14 sits down with dear old dad, and just as you do
15 when he drinks too much, "Dad, it is time," or
16 when the boss says, "Harry, it is time, and if
17 you don't get some treatment, you don't have a
18 job here anymore," or mom says, "I'm out of here.
19 It is time to go to the probate court."
20 I think you will find that there will
21 not be as many people suffering and you will be
22 treating your society in a way that you should
23 treat them, not jailing them for a sickness. But
24 I don't think the general public, particularly
25 these days with all that's going on politically,
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 119
2 are willing to buy into that.
3 That's why I say we have to prove to
4 them, first, that treatment works and that it is
5 a whole lot cheaper and that it is a whole lot
6 better. People lives don't get ruined. They
7 don't have The Scarlet Letter of ex-con stamped
8 on their forehead forever and forever.
9 Once you have done that, then I think
10 you can move into, taking probably a third of the
11 billions of dollars that are squandered, really
12 squandered because it is an unfair system under
13 the present system. Forget about interdiction.
14 How much do we spend on interdiction
15 trying to keep drugs out of the country when you
16 you can get it in any prison including a maximum
17 security prison in any state?
18 I think it isn't as simple as saying
19 it is either one or the other. I think you have
20 to see the whole picture, and I think you have to
21 put into the system what it needs to really do
22 the job and not do it in a halfhearted way.
23 Who knows, with what's going to happen
24 with Medicare and Medicaid, and all the rest,
25 whether we can ever convince the current
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 120
2 government that it ought to put treatment for bad
3 people who use drugs. But if we don't, we have a
4 very sad society ahead of us.
5 MR. KASS: In very brief follow-up on
6 that, your emphasis on treatment suggests that
7 you would have less confidence in a legalized
8 maintenance system, is that correct?
9 MR. VAN GESTEL: No, not necessarily.
10 Candidly, I don't know how a legalized
11 maintenance system would work. But, again,
12 coming back to Mr. Cohen who, I mean, I really
13 applaud and want to call up and find out how his
14 program works. But when the question was asked
15 of him, well, "Gee, you are only reaching the
16 people who get into the criminal justice system,"
17 he said, "I would love if we could reach
18 everybody, but that's the only ones that the
19 criminal justice system can deal with." We're
20 using the wrong system to deal with this problem.
21 MR. DOYLE: Any questions from the
22 audience? Yes, sir.
23 A QUESTIONER: There's been testimony
24 over the past couple of days regarding users
25 versus addicts, and the numbers have been in the
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 121
2 10 to 15 percent rank. That is, 10 to 15 percent
3 of people who have used drugs become addicted to
4 the drugs, but there was implicit in both your
5 statement and the prior statement that anyone who
6 uses drugs is a candidate for treatment.
7 I would like you to comment on that
8 apparent contradiction.
9 MR. VAN GESTEL: I'm not sure I fully
10 see the contradiction.
11 A QUESTIONER: Is it your position
12 that anyone who uses any amount of illegal drugs
13 at any rated over time, that is, once a month,
14 once a week, needs treatment?
15 MR. VAN GESTEL: No, no. I don't
16 purport to be a physician. It is those people
17 who have lost control of the ability to deal with
18 their lives, just like an alcoholic, who need
19 treatment, ought to have it available and they
20 shouldn't be, as they are today, branded as
21 criminals and sent to jail.
22 A QUESTIONER: That's not how DTAP
23 works and programs like what you are talking
24 about in terms of mandatory treatment. What
25 happens is you get caught with drugs in your
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 122
2 system, there is no way of knowing how often you
3 use them, how much you use them, whether your
4 life is out of control or not, that is, whether
5 you are in that 10 percent of the users who are
6 addicts, yet, you are set for mandatory
7 treatment. That's why I am saying.
8 How do you stand -- theoretically,
9 only 1 out of 10 people mandated to treatment
10 actually need treatment if only 1 out of 10
11 people who use drugs are addicts.
12 MR. VAN GESTEL: If your use of drugs
13 has so affected your ability to deal with your
14 behavior that you are caught up in the criminal
15 justice system for some reason, in addition to
16 the simple use of drugs, why isn't that a -- why
17 if that person needs treatment and loses control,
18 then society ought to force him into treatment.
19 A QUESTIONER: Is that comparable to
20 like --
21 MR. VAN GESTEL: It is comparable to
22 like being a drunken driver and running over a
23 child and being criminally prosecuted.
24 A QUESTIONER: How about comparable if
25 you get stopped because your tail light is broken
PIROZZI & HILLMAN 212-213-5858
1 jbp Van Gestel 123
2 and it turns out you got alcohol in your system.
3 MR. VAN GESTEL: I see nothing
4 comparable there. If you get drunk every Friday
5 and beat your wife, I think the criminal justice
6 system ought to grab you and say, "Unless you get
7 your drunkenness under control you are going
8 away."
9 MR. DOYLE: Thank you very much for
10 coming from Boston to enlighten us on the work
11 that you have done and the results of your
12 reports and your studies, and we hope that you
13 will stay in touch with us and that we will
14 coordinate our efforts in the future.
15 We're running at least an hour behind
16 schedule. So I am going to have to stop the
17 questioning of Mr. Van Gestel at this time.
18 Thank you very much, sir.
19 (Applause)
20 MR. DOYLE: Dr. Feingold.
21 MR. MARKEWICH: I want to announce
22 that Dr. Feingold and I are high school
23 classmates, which is kind of ironic. Last year
24 at a committee dinner, I being a chair of another
25 committee, I found myself at a table with two
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 124
2 other high school classmates. One of whom is
3 still a good friend of yours, David, right.
4 Aaron Edberg.
5 DR. FEINGOLD: Since this is a meeting
6 of lawyers -- and I'm an anthropologist -- the
7 first thing they did was give me a consent form
8 to sign.
9 MR. DOYLE: Let me introduce Dr.
10 Feingold who has produced film through Ophidian
11 Films Ltd. He's a research anthropologist and
12 he's a fluent speaker of several Asian languages,
13 including three dialects of Thai and Akha. He is
14 an expert in the area of opiate production and
15 trade. He has served as director of the Center
16 For Opium Research. He has been a consultant to
17 the United Nations and to the Narcotics
18 Convention on Drugs, and he has written on opium
19 and politics in Laos. He has also made films on
20 various topics including these subjects.
21 Dr. Feingold, thank you for joining us
22 this morning.
23 DR. FEINGOLD: Thank you very much for
24 asking me. What I would like to do is take this
25 issue that you have been dealing with for the
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 125
2 past few days and take it back to where it all
3 starts. Because one of the things that has
4 happened ever since President Nixon decided to
5 declare the first war on drugs in 1971 is that
6 the United States has followed a policy in which,
7 essentially, it assumed that the kinds of
8 problems that couldn't be solved by the Brooklyn
9 District Attorney's Office, by the police in New
10 York City, could not be solved by prosecutors and
11 police in places like Thailand and Laos and Burma
12 and Peru.
13 Now, this represents a degree of faith
14 in the efficiency of those enforcement
15 organizations that is certainly not matched by
16 the people in that country or the people who have
17 had much experience in being there. What I want
18 to talk about very, very briefly is about two key
19 crimes and crops, and then I will talk a little
20 about marijuana.
21 First of all, as most people know,
22 heroin derives from opium. Opium derives from
23 poppy and the main center for opium cultivation
24 at the present time is the so-called Golden
25 Triangle, a term beloved of the newspaper
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 126
2 reporters, and said, knowledgeably, by those
3 people who have made a brief visit to Southeast
4 Asia generally and had their picture taken at a
5 sign that now resides at the confluence of Burma
6 Thailand and Laos that says Golden Triangle.
7 If any of you wanted to go there,
8 there is a very nice guest house, and you can go
9 and get your picture taken there. I first lived
10 in the heel of Northern Thailand in 1964, and
11 first worked with Shans, who were the General
12 Motors of the opium trade, and opium people who
13 are a number of one highland minorities that grow
14 opium. I spent two years living in one Akha
15 village that I returned to frequently thereafter
16 in 1967 to 1969, and I kept on going back to the
17 same place.
18 One of the interesting things that I
19 learned to do is I learned a lot about growing
20 opium. I spent a lot of time in opium fields.
21 One of the things that is usually misunderstood
22 is that opium is not a very good crop for the
23 people that grow it. It takes 387-man hours to
24 raise 1.6 kilos of opium. 1.6 kilos is the
25 measure of opium. It is called a whisk or more
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 127
2 appropriately a joy.
3 So to grow a joy of opium takes
4 387-man hours which is about 80 percent more than
5 the input into upland rice. In addition to this,
6 the return per household which will vary there
7 year to year, but runs about 50 or $60 for a
8 year's worth of labor. Now, admittedly this
9 approximately corresponds to the wages of an
10 anthropolist, but I suppose no attorneys would
11 work for that, or at least none that I met.
12 In addition to that, you lose your
13 crop about once every five years because of
14 weather. And also in addition to that, the
15 out-turn for any one particular field can vary by
16 up to 300 percent. So the fact is you have a
17 crop that is very labor-intensive, you don't get
18 very much return for and you lose it about once
19 every five years.
20 So why do people grow opium? People
21 grow opium for not the obvious reason that people
22 say, well, they make a killing with it. What
23 happens is, that people grow opium because, one,
24 it is used as a medicine, it is one the very few
25 medicines that highland people have.
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 128
2 Two, they also use it as a
3 recreational drug in which traditionally there
4 were very severe social controls. So that -- and
5 unfortunately it is not the situation now, and I
6 will explain why in a couple of minutes
7 traditionally women didn't smoke opium among, for
8 instance, the Akha. Children didn't use it. So
9 essentially, it was something that was limited to
10 old men.
11 Now, one of the things that some of us
12 find a little disheartening that if you are an
13 Akha you officially become an old man at 44 years
14 of age. Some of us are trying to fight that
15 tradition. But the fact is opium was basically
16 used as something that grandpa, after he had been
17 spending several hours walking up and down
18 mountains, used to relax. It was used much more
19 like fine cognac than it was three quick martinis
20 to get you through the day.
21 Then there were people who, both in
22 local terms and in our terms, abused opium. By
23 that, what local people considered is that their
24 use of the drug was inappropriate in terms of
25 either time, time of the day. In other words, if
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 129
2 we had a drink together at 5 o'clock in the
3 afternoon, probably most of us wouldn't think
4 much about it. If I met you for a New York power
5 breakfast and you ordered a stiff Bourbon, I
6 would probably look at you somewhat askance.
7 Your body doesn't know the difference. There is
8 nothing medically in the amount of alcohol that
9 you ingest.
10 The difference is whether or not it is
11 socially appropriate to get high, so a user that
12 abused, used it at inappropriate times or used it
13 in such a way, as to interfere with his ability
14 to operate as a normal adult within the society.
15 Just as, you know, you can get a little tipsy at
16 a party and it is considered relatively all right
17 in society but not if you get in your car and
18 proceed to knock down three children on their way
19 home.
20 Now, what essentially that meant in
21 terms of opium is you had the uses of medicine,
22 the uses of recreational drugs and, most
23 important, which most people do not understand is
24 that it acted as a currency. And so you could
25 walk down from Southern China and, in fact you
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 130
2 still can, to Shan states and to Northern
3 Thailand and Laos, and you can carry a brick of
4 opium like American Express checks "Don't leave
5 home without it." You can cut off little bits
6 and you move along. It was a consummable
7 currency which was used vis-a-vis currency.
8 If you want to understand liquidity,
9 try getting into a New York taxi with $100 bill.
10 I think when I originally used this example years
11 ago it was $20 but taxis have gone up. With a
12 $100 bill you have the money, but nobody can make
13 change. So, essentially, that underpinning of
14 the economy became very important and the other
15 key thing is that opium has a high value per
16 amount of weight.
17 Why is this important? It means
18 transport costs are low. If you are in the
19 mountains, and you spent a lot of time walking
20 through mountains, that becomes very important.
21 If you grow potatoes, and you carry it five hours
22 down the mountain to a market, you basically have
23 a choice of accepting any price you are offered
24 or packing up your potatoes and carrying them
25 another five hours up the market.
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 131
2 That's sort of a concrete way to
3 understand how transport costs work in a
4 traditional economy.
5 So this question of transport costs
6 and also the question that the market comes to
7 you, in other words, if you grow opium somebody
8 is going to show up in your village that wants to
9 buy it. You don't have to go to them.
10 Now, what happened in terms of the way
11 we dealt -- and I'm going to use the example of
12 Shan states in Burma -- when I went first into
13 the Shan states in 1964, Burma never produced
14 more than 425 metric tons of opium. That's a
15 lot. But when the United States, by the time the
16 United -- this was when there was no suppression
17 program in Burma.
18 By the time the United States ended
19 its support for suppression of opium cultivation
20 in Burma, Burma was growing 1,600 metric tons of
21 opium. Okay. So you had 425 before there was
22 any suppression program and you had 1,600 tons
23 after there was a suppression program. This
24 makes this the most successful agricultural
25 development program undertaken anyplace in the
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 132
2 world. If AID could accomplish for rice what the
3 United States accomplished for opium, we would
4 solve much of the world's hunger problem.
5 So the obvious question is why did
6 this happen? Was it just that instead of
7 spraying herbicides, they were spraying
8 fertilizer. No. What happened was is that by
9 contributing to political instability you
10 increase people's liquidity preferences.
11 What's a liquidity preference? I'm
12 sure that all economically well-educated people
13 know that, but in case there are some that don't,
14 what that means is what are you willing to pay or
15 to invest in order to be able to have your wealth
16 in a liquid form. In other words, if war came to
17 New York City, which would you rather own, real
18 estate or gold chains? Probably you would prefer
19 gold and would be willing to pay quite a high
20 premium for it, or even better, maybe diamonds
21 because they are easier to move. So,
22 essentially, what happens is where you have
23 situations where drug suppression programs
24 contribute to political instability, it favors
25 the production of drug crops over food crops.
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 133
2 A couple of other things about growing
3 opium. Opium is more forgiving of land than rice
4 is. You can grow opium on land that you can't
5 grow rice. Essentially, if you look at Burma for
6 the past century, more than 50 percent of the
7 entire production of opium has come from one of
8 the Shan states, which is abyssmal in terms of
9 their soil quality and often are grown by the
10 poorest people. Essentially, if you want to be
11 well off, if you are a highland person you want
12 to grow both rice and opium. So that you have
13 protection against when your crop fails you also
14 have control of your food supply.
15 Because another important thing to
16 remember is that in traditional agricultural
17 situations and the world, people do not tend to
18 maximize profit, not because they are stupid, but
19 because it is more important for them to minimize
20 risk. Because if you have a failure of a crop,
21 you can't go and even find the minimal safety net
22 for the deserving poor that supposedly we're
23 going to end up with. So there is a high
24 inducement to minimize risk.
25 Now, let's see what happens. You
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 134
2 create a situation where you maximize production,
3 you maximize production by creating instability,
4 raising liquidity preferences, having more and
5 more labor that goes into drug crops rather than
6 food crops. You do not develop the area, which
7 means that you increasingly give a comparative
8 advantage to crops with low transport costs.
9 You then have a very efficient network
10 to distribute that product and it is probable
11 that the only thing, the only product that Shan
12 states in Burma produces that is readily
13 available in processed form in New York City is
14 opium which gets turned into heroin.
15 You don't get a lot -- they grow some
16 wonderful tea up in Shan states, and you can't
17 get it in New York. You don't get much bamboo
18 from there. Basically except for -- there is one
19 other thing. You get Burmese rubies in the
20 United States and some sapphires. But aside from
21 that, there isn't much that makes it here except
22 heroin and the heroin does it without the benefit
23 of government subsidies. So it should be very
24 dear to the hearts of the present congressional
25 members and it does it without a whole lot of
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 135
2 formal mechanisms to deal with.
3 Now, one of the people that I worked
4 with was a man who you actually might know, Kung
5 Sao, you have read about him. He's referred to
6 as the drug kingpin or the king of opium in the
7 Golden Triangle of China. Anyhow, I looked at
8 how his finances were, if that's possible. And
9 essentially he makes a lot of money from taxing
10 opium moving through his areas and from taxing
11 traders who process it into heroin.
12 Now, I'm always fascinated, and I
13 heard some of it this morning, about sending
14 messages. Ours is a society that has a great
15 belief in messages. We constantly confuse text
16 and life. And so what we do is we're worried
17 about what messages are we sending.
18 I remember a few years ago when there
19 was The assistant Secretary General of the United
20 Nations who said -- we were on a panel together
21 -- and he said, we're sending a message to the
22 drug traffickers that drug trading will not be
23 tolerated. And I said, "Well, Mr. Secretary, you
24 might be sending it, but they are not getting the
25 message."
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 136
2 Now, why aren't they getting the
3 message? First of all, the message is something
4 that is not getting through. They are pretty far
5 removed from these sorts of meanings. But the
6 second thing is enforcement never stops more than
7 10 percent of what comes out of the fields. And
8 even that 10 percent is a manageable figure. If
9 over the past 30 years enforcement has never
10 stopped more than 10 percent of what comes out of
11 the field, what is the result of all the
12 increases in the taxpayers' money that have been
13 going on in terms of drug suppression?
14 The main result, not because we want
15 to do it, but the practical result is that we run
16 a price-support program for heroin around the
17 world. Because what we do is by never stopping
18 more than 10 percent, it means we guarantee that
19 90 percent gets through. And essentially we're
20 like an ineffective use of antibiotics. Because
21 since only the least efficient smuggling
22 organizations are caught, you act as -- it is a
23 wonderful Darwinian model -- you have a selective
24 mechanism for selecting more and more efficient
25 smuggling organizations. So Kung Sao could not
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 137
2 make the money he makes if it weren't for the
3 Drug Enforcement Agency. This has nothing to do
4 with corruption. It has to do with just basic
5 economics.
6 Let's look at a couple of other
7 instances, and I know you're running very late
8 and I will try to be brief.
9 I also worked in Peru and was in the
10 upper Guayaga Valley where 60 percent of the
11 world's cocaine originates. Some of you who have
12 read so much about Columbia, because everybody
13 likes to write about it because of the cops and
14 robbers and people getting shot. A lot of people
15 get shot in Peru but for somewhat different
16 reasons. What happens and why do things go wrong
17 that way?
18 In the 1990s they were making the same
19 mistakes in Peru that they did in Southeast Asia
20 starting in the '70s.
21 What happened is the Guayaga is an
22 area that is larger than El Salvador -- it is a
23 valley larger than El Salvador. The United
24 States established one base, it looked like very
25 much like a Viet Nam era firebase in Santa Lucia
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 138
2 where they might have 10, might be more now, DEA
3 agents who, poor guys, were supposed to win the
4 war on drugs in an area larger than El Salvador.
5 Now, in the Guayaga you had farmers
6 who were not traditionally supportive of the
7 various leftist guerrilla matters. In terms of
8 their voting patterns they voted for somewhat
9 right-wing traditional egalitarian partners.
10 What happened when you had a suppression
11 participation -- because the farmer would grow
12 coca essentially for commercial purposes, because
13 they can't get any anything else to market -- you
14 had the Colombian drug traffickers who were
15 buying the drugs, you had the army pushed by the
16 United States and the police pushed by the United
17 States carrying out suppression, and the farmers
18 were sort of caught in the middle because the
19 guys from Columbia didn't take much of an excuse
20 if you didn't deliver.
21 So Sindarno Emplinosa -- some of you
22 heard of him, the Shining Bat, who is still out
23 in the jungle who was once captured -- came to
24 these farmers, who were not ideologically well
25 disposed, came to them and they said, "Well,
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 139
2 look, we'll tell you what we'll do. We'll
3 protect you against the army, we'll protect you
4 against the police, we will protect you against
5 the Americans. We'll bargain with the
6 traffickers to get you a higher price for your
7 crop and, by the way, if you don't go along,
8 we'll come back and kill you and your family in
9 very nasty ways."
10 So the farmers not being stupid,
11 thought about this for precisely 36 seconds and
12 said, "Seems like a good idea to me."
13 What that meant is that Sindarno got
14 them established with an economic base that they
15 previously lacked, which was in fact the major
16 resource of Peru. Coca is the probably the major
17 resource of Peru and that gave them a foothold,
18 which they never would have had without the
19 suppression program you might say.
20 Okay, that's the cost of doing
21 business, but we sent a message and we're winning
22 the war on drugs.
23 The other thing that was interesting
24 is that Congress chartered the expenditure for
25 suppression in Peru and drug production in Peru
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 140
2 and guess what? As expenditure went up on
3 suppression, drug production went up as well.
4 So the end result, which led to the
5 title of the film that we did that was on PBS, is
6 there was a hearing before Congress and General
7 Jawuan who was at that time the commander of
8 several commands came in and testified that our
9 program should be assessed on the will of our
10 allies to take action on drugs. And this old
11 congressman from the south said, "You know,
12 General, I don't know much about this but it
13 seems to me if they are growing more and more of
14 the drugs and more and more of the drugs are
15 coming into this country, we ain't winning."
16 MR. DOYLE: Can you finish up in one
17 or two or three minutes?
18 MR. FEINGOLD: I can finish up in one
19 minute.
20 Essentially, if you look at coca,
21 which is the main source of one of our drugs,
22 cocaine and crack, if you look at opium, which is
23 the main source of heroin -- and let me just say
24 in one minute something about marijuana.
25 If you remember back in the bad old
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 141
2 '60s -- there might have been even someone in
3 this room who didn't inhale, but tried some
4 marijuana because it was forced on them by their
5 college roommate or girlfriend or boyfriend --
6 most of the marijuana at that time had 3 percent
7 THC. Now marijuana is running, as I understand
8 it, about 11 or 12 percent, some even higher, THC
9 content.
10 What happened? What happened is you
11 had a movement against marijuana overseas which
12 gave the domestic producers the kind of
13 protection from the government in terms of
14 overseas competition that, for instance, Chrysler
15 and General Motors would kill to get. So what we
16 did was set up a situation where we suppressed
17 crops in other countries which gave benefit to
18 higher yielding crops in the United States and
19 then we had suppression in the United States and
20 people went to hydroponic growing which produced
21 higher THC yielding plants.
22 So one of the things I would say in
23 closing is that when one looks at programs,
24 whether it is domestically or internationally, I
25 think we have to realize that doing drugs makes
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 142
2 you feel good and is bad for you. And pretending
3 to do something about drugs makes you feel good
4 and is also bad for you. And so I would say that
5 the one lesson that has come to me from 30 years
6 of looking at this problem overseas, is that
7 basically almost everything that's done spends a
8 lot of money, makes things worse, can be highly
9 amusing except for the fact that a lot of
10 innocent people suffer.
11 Someone pointed out that essentially
12 the drug trade has two groups of victims. The
13 farmers at one end and the junkies at the other
14 and everybody else makes out like bandits.
15 MR. DOYLE: Thank you very much.
16 (Applause)
17 MR. DOYLE: We have time for two
18 questions from the panel and two from the
19 audience.
20 Agatha, do you have any question?
21 MS. MODUGNO: A comment really, which
22 is that when I was in Peru in the 80's you saw an
23 immense deterioration in society that people in
24 society who never used the coca before were using
25 it precisely because of the U.S. programs and it
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 143
2 made it interesting and attractive to them and it
3 is not new in the 90's.
4 MR. DOYLE: Dan?
5 MR. MARKEWICH: No question.
6 MR. DOYLE: Any question from the
7 audience.
8 A QUESTIONER: Just a quick one. What
9 do you think would happen to all these economies
10 if legalization or if some form of legalization
11 would take place in the United States?
12 DR. FEINGOLD: I think it is very
13 interesting. One of the things I'm troubled
14 about as to what some people said this morning,
15 there are lots of statements about what we don't
16 know. But in fact we know a lot of different
17 things. We know, for example, that children,
18 that even if minors went out and bought it like
19 mad, they could never make up the total amount of
20 the market that the adults do.
21 If you essentially cut off the market
22 in terms of, meaning taking away huge profits,
23 you would essentially cut that off so far as the
24 United States is concerned.
25 Now, there are still other places in
PIROZZI & HILLMAN 212-213-5858
1 jbp Feingold 144
2 the world. It is not that this would all of a
3 sudden disappear. It is also true that there is,
4 for instance, worldwide, tremendous
5 overproduction of opium. In other words, I
6 believe that the current estimates are that the
7 United States uses -- or it used to be that the
8 estimates are that they used 11 tons of heroin.
9 Now maybe it is up. But 11 tons of heroin is
10 equivalent to approximately 110 tons of opium.
11 Then you have wastage and usage, and actually it
12 is not a ten to one reduction ratio. It is a
13 couple of other things. But when you think this
14 year Burma will produce approximately 2,500
15 metric tons of opium, you can see that there is a
16 tremendous overproduction, and that's just
17 looking at Burma not counting Laos, not counting
18 Afghanistan, not counting Iran. A supply you
19 can't do anything about.
20 Essentially, if you cut the economic
21 demand, it will eventually work back through the
22 pipeline, but it is not going to be magical
23 because the United States isn't the only market.
24 MR. DOYLE: Thank you very much. We
25 very much appreciate your comments, which are
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 145
2 extremely helpful and we hope to stay in touch
3 with you as we progress in our study.
4 (Applause)
5 MR. DOYLE: Charles Adler is a member
6 of the firm of Goltzer & Adler. He is a criminal
7 defense lawyer and a litigator here in New York
8 City. He is president of the Center for
9 Community Alternatives. He is on the board of
10 The Partnership For Responsible Drug Information
11 and New Yorkers For Drug Policy Reform, and we
12 welcome Mr. Adler here today.
13 MR. ADLER: Thank you very much.
14 Thank you for having me. Am I close enough to
15 this microphone?
16 MR. DOYLE: Yes.
17 MR. ADLER: Perhaps I made the mistake
18 of attending for the other speakers and it has
19 given me so many additional things that I want to
20 say and I know I don't have time to do it. Let
21 me start by saying directly we cannot stop the
22 flow of drugs in this country. People seem to
23 have beaten around the bush about that, but it
24 seems to me we have absolute, clear irrefutable
25 proof of it.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 146
2 Someone mentioned a little earlier
3 that drugs are available in every prison in this
4 country. The New York Times recently published
5 an article which made that point, and one of the
6 most evocative statements in the article was by
7 the warden of the prison in Philadelphia who said
8 drugs were so abundant in his prison that the
9 prisoners were smuggling them out because they
10 fetched a higher price on the street.
11 If that was an experiment, it seems to
12 me that could not be better devised. It is a
13 fortress. The inmates have no liberty whatever.
14 They are subject to random searches. Visitors to
15 that fortress are subject to searches, if,
16 indeed, they are admitted at all.
17 When people in our law enforcement
18 establishment tell us that if only we expended
19 more money, if only we surrendered more of our
20 liberties, they could interdict drugs into the
21 United States. It seems to me so patently
22 ridiculous that I wonder about their good
23 intentions in telling it to us. I wonder about
24 the sanity of the society that accepts that.
25 Now, some speakers have suggested that
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 147
2 perhaps even if this war on drugs is ineffective
3 we ought to continue it anyway because it sends
4 the proper message or for some other reason, and
5 I want to ask the question: What is the price
6 that we pay to continue it? It is not simply an
7 attempt that produces no cost. The collateral
8 damage of this war is immense, and I want to take
9 the little time that I have to speak with you to
10 make just a few points which essentially address
11 some of the collateral damage.
12 The report that this committee issued,
13 which was a wonderful report, and I certainly
14 want to add my voice to the chorus of applause
15 for both the common sense approach and the
16 comprehensive nature of the reasoning and the
17 conclusions.
18 There are few, I hope, additional
19 points that I can add. I will try and pick the
20 more fundamental ones.
21 It seems to me that the drug war is
22 incompatible with a free society. That's a
23 rather broad statement. What I mean by that is
24 that law enforcement traditionally utilizes
25 techniques which are compatible with a free
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 148
2 society. A crime is committed, a detective
3 appears on the scene, interviews witnesses, looks
4 for forensic evidence and does other such police
5 sounding things.
6 When we conduct this war on drugs, we
7 utilize techniques which are more in keeping with
8 the suppression of ideas in a totalitarian
9 society than the investigation and prosecution of
10 individual crimes.
11 The use of eavesdropping and
12 wiretapping which began with a great deal of
13 reticence on the part of Congress has increased
14 enormously. What was seen as a great concern has
15 now become routine.
16 The war on drugs is fought with such
17 techniques as the infiltration of communities in
18 the recruitment of informants. It has brought us
19 to a point where the police are seen as an
20 occupying army in most inner cities. There is
21 very little interchange between the citizens of
22 the inner city and the police for fear that
23 either the citizen or a member of the citizen's
24 family will be caught up in the enforcement of
25 the drug laws.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 149
2 We have virtually nothing left of the
3 Fourth Amendment in this country. It seems to
4 me, as an aside, that a free society has the
5 right by popular decision to abandon some of its
6 liberties, but that's not what has happened. The
7 Fourth Amendment has disappeared without any
8 debate, and it seems to me while lip service is
9 given to the existence of the constitutional
10 rights to privacy, nonetheless we don't have a
11 Fourth Amendment.
12 To take a timely example, perhaps just
13 one of the reasons that the result in the Simpson
14 case was as it was, is that the jury did not
15 accept the explanation that four detectives went
16 to Mr. Simpson's house and climbed over his wall
17 to inform him that his former wife had been
18 killed.
19 Well, I don't think many people
20 accepted that when they think about that as
21 having been true, and so we ask ourselves why did
22 it happen. It seems to me it happened because
23 the police always say something like that and the
24 prosecutors always accept it and the judges in
25 the hearings always accept it and now the
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 150
2 detectives, the poor folks, say, "What did we do
3 wrong? We always lie about this and we thought
4 that's what we were supposed to do."
5 Well, the routine way in which these
6 fabrications -- and that's what they are -- have
7 become accepted is the result of this drug war
8 and it seems to me it undermines a credibility
9 that is essential to the maintenance of a free
10 society.
11 We permit intrusion into people's
12 lives that seems to me strange. The routine
13 looking through garbage, the chemical analysis of
14 our bodily waste. These things are accepted now
15 as sort of a given and the baseline keeps
16 increasing.
17 In this circumstance, what can we
18 expect of the relationship between communities
19 and their citizens and the police. It seems to
20 me we cannot expect a relationship of mutual
21 respect.
22 One only need look at the Mollen
23 Commission report to derive the conclusion that
24 corruption among the police is inevitable in the
25 prosecution of a drug war. I don't want to take
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 151
2 too much time in discussing why. I think it is
3 rather obvious. The money, the futility that the
4 police see in arresting and prosecuting people.
5 There are very few police, I think,
6 who would accept a bribe in order to let a bank
7 robber or a rapist go free. But when it comes to
8 somebody who sells drugs, it is not really that
9 person who the police are told is bad, but rather
10 what that person is doing. And yet what he is
11 doing continues and will continue whether you
12 make that arrest or you don't make that arrest.
13 No change in the circumstance is visible to that
14 police officer and that futility and frustration,
15 it seems to me, leads inevitably to corruption.
16 As we talk about the distortion in the
17 policing and in the judicial system, I want to
18 mention a trend that I think is interesting in
19 the prosecution of drug cases recently --
20 particularly federal cases and that is -- the use
21 of what is called the reverse sting or reverse
22 buy operation. As I say, as new techniques
23 develop, they very quickly become routine and in
24 the crush of business, no one challenges or
25 questions them.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 152
2 It used to think, until rather
3 recently, that when drug cases were made, at the
4 very least, we knew that the defendant who is
5 arrested and put on trial had access to
6 substantial quantities of drugs because he
7 brought them to the scene and provided them to an
8 undercover police agent.
9 Now, the trend is increasingly to
10 having an informant go out and produce a person
11 who says he's willing to purchase drugs. The
12 drugs, of course, are being offered by the
13 informant and ultimately by the undercover agent.
14 So the informant is given tremendous latitude.
15 Basically, he's arrested for an offense, he's
16 told that he is going to prison for the rest of
17 his life unless he can produce somebody else, and
18 then sometime later produces somebody else. That
19 person comes to the scene and is willing to at
20 least say that he has sufficient money to
21 purchase drugs and is arrested and charged with a
22 conspiracy to possess with the intent to
23 distribute those drugs, which is precisely the
24 same as if he had come with the drugs themselves.
25 This transfers governmental authority
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 153
2 and what ought to be governmental integrity to
3 the most despicable people, the informant, the
4 person who himself is facing severe sanctions.
5 This person is traditionally and continually
6 given tremendous latitude, and we do not even
7 have the protection of knowing that the person
8 who is arrested was really in the drug business
9 before he met the informant.
10 The fact that this is taken so easily
11 and casually, it seems to me, is indicative of
12 just how far we have come in this. It is a
13 product of the mythologizing and demonization of
14 drugs. If it has to do with drugs, we will allow
15 it, purely. That seems to be the tenor of the
16 times.
17 With regard to the judiciary, there
18 are other consequences and there are so many.
19 Just to take a few. It seems to me, again, in
20 the federal system we lie to jury's, we sanction
21 this lie, and it makes me wonder why we do that
22 and whether we haven't lost our way.
23 Just to make it very simple, jury's
24 are told when they are sitting on large
25 conspiracy cases that they are not to be
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 154
2 concerned with the level of participation of a
3 particular defendant, any level of participation
4 is sufficient to put him within the conspiracy.
5 And what they are essentially told is, don't
6 worry about it, I, the judge, will be able to
7 make reasonable distinctions when I impose a
8 sentence.
9 That would be fine, except that it is
10 not true. Because when the jury convicts that
11 rather peripheral individual and it is time to be
12 sentenced sometime, the district judge
13 essentially says, "Really, I would like to give
14 you a sentence commensurate with your peripheral
15 role, but I'm faced with the guidelines that
16 determine your sentence on the basis of the
17 amount of drugs involved in the conspiracy and I
18 really have no discretion."
19 And it seems to me that our
20 willingness to do that makes clear that we do not
21 trust a system that jury's would convict such a
22 person if they were told that that person were
23 facing a mandatory 10-year imprisonment or some
24 such thing. That makes me wonder whether we
25 ought to enforce laws which jurors cannot be
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 155
2 trusted to uphold.
3 That is one of the many examples.
4 Let me talk about something which was
5 mentioned --
6 MR. DOYLE: Can you finish up in about
7 five minutes.
8 MR. ADLER: Five minutes. Let me be
9 selective.
10 Let me talk a little bit about what
11 Jay Cohen said. He said how can we abandon the
12 communities, the communities that seem to want us
13 to enforce the laws?
14 I'm very concerned about the young
15 minority male for the most part, although females
16 seem to me to be more and more a part of the
17 problem, partly because the sentencing guidelines
18 don't make distinction and they are subject to
19 the same mandatory terms.
20 It seems to me that there are very few
21 young people of whatever race, of whatever
22 economic strata, who want drugs in this city and
23 probably in the country who are unable to find
24 them. Very few children or others don't use
25 drugs because they don't where to get them.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 156
2 Which seems to me to be somewhat related to the
3 question of what's going to happen if we legalize
4 it. We will have all these people now who find
5 that they can locate the drugs, so they will
6 probably try them. Well, I don't think there are
7 many who want them and can't find them now.
8 What I am concerned about is how drug
9 involvement looks to a young person growing up in
10 the inner city.
11 I would like drug involvement to look
12 like a pathetic human being lying in a doorway
13 unable to move, unable to function, perhaps
14 drowning in his own vomit. That's how I would
15 like drug involvement to look.
16 How does it look now? I think it
17 looks like the flashy people on the corner with
18 gold chains and BMW's, with guns and power, with
19 respect among their peers in the community. It
20 seems to me they become role models. That's the
21 product, that's the effect of the drug war of
22 prohibition.
23 Some will surrender to addiction, if
24 it is legalized. They do it now. I don't think
25 that there are many people who would surrender
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 157
2 their lives to addiction now who failed to do it
3 because they are so responsible that because it
4 is illegal they won't involve themselves. They
5 do it because they don't have that kind of
6 thinking. So we'll lose some. We lose them now.
7 But I think we can save the young person growing
8 up in that community who does have talent, who
9 does have ambition, who has a future.
10 Now what does he have to do in order
11 to make that future come about? He has to
12 survive the random violence that bystanders
13 suffer from when gangs fight over turf, made
14 valuable only by the inflated cost of the
15 prohibition. He has to survive the seduction of
16 being brought into the business. I mean here is
17 the person who, he's got talent, he's going to
18 school, he can earn $1000 a day. Maybe he'll
19 take a chance, he'll get into the business, he'll
20 try to earn a little money.
21 So if he survives it physically, what
22 happens? Maybe he will get arrested. Well, if
23 we arrest him, what have we done to his future?
24 It seems to me he doesn't have a chance. We have
25 taken that away from him.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 158
2 The only chance he has, then, is that
3 America will remain in this folly, continue
4 prohibition and he can make a great living as a
5 drug dealer.
6 Thank you.
7 MR. DOYLE: Thank you very much, Mr.
8 Adler.
9 Dan, do you have any questions?
10 MR. MARKEWICH: Well, I just have
11 actually a comment that I must say as one of the
12 -- I don't really like to characterize this as
13 one the dissenters, I think we were partial to
14 the report, I'm very much struck by the image you
15 left us with in the end, and I shall incorporate
16 it into my thinking, because I think you are
17 right in stating that at least insofar as I hate
18 to use this word but for want of a better one --
19 and with anthropologist in the room -- the
20 underclass are concerned, the image of the
21 present as contrasted with what you would like to
22 see if the glamour and profits went out of the
23 industry is a very striking one, and I will
24 incorporate it into my own thinking on the
25 subject.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 159
2 MR. ADLER: Thank you. I will be very
3 happy to talk to you more about it.
4 MR. DOYLE: Agatha.
5 MS. MODUGNO: No questions here.
6 MR. DOYLE: Were you here for Judge
7 Sweet's testimony?
8 MR. ADLER: I was.
9 MR. DOYLE: One question that does
10 continue to be of concern to me is people under
11 18, because there is a model that would still
12 have prohibition in effect, I think the way Judge
13 Sweet was visualizing it, and so the question I
14 have is some of the element of the attractiveness
15 of a black market still going to be around even
16 if we have kind of an alcohol-tobacco-type model
17 of legalization.
18 MR. ADLER: Far less than we have now
19 for these reasons.
20 Number one, it seems to me what we
21 have now is, we have abandoned the opportunity to
22 educate. We hear talk about the need to educate.
23 Education requires credibility. If we
24 tell our children just say no when they look at
25 the adult society participating in the use of
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 160
2 drugs daily, whether it is alcohol, tobacco,
3 Prozac, coffee, whatever, they simply reject us.
4 They think we're ignorant.
5 We tell them don't have sex. We're
6 not very effective in that area. It seems to me
7 the only opportunity we have to reach young
8 people is to talk to them in a way that sounds
9 real and sensible to them. With drugs which are
10 available to adults like licorice available to
11 children, like other things that are dangerous to
12 children are available to adults, we can say to
13 them "You should not do this because they pose
14 dangers for you. When you get older, you will
15 make your own decisions. Let's talk about it.
16 Let's talk about it in a way that you can believe
17 me and you can believe that I care that you
18 understand why you shouldn't do it."
19 Those are things that we have lost by
20 demonizing the issue and taking ourselves out of
21 the ability to discuss it honestly.
22 In terms of the black market, I think
23 Dr. Feingold said very well we're going to cut
24 most of the money away. So who is going to be
25 selling these drugs?
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 161
2 There will be penalties. There are
3 penalties for selling alcohol to minors. One of
4 the great penalties is that some person who is in
5 the business of selling alcohol invests a great
6 deal of money in the acquisition of a license.
7 They don't want to lose that license by selling
8 it to a child. If an adult comes in and buys it
9 and then gives it to a child, we punish that.
10 But where is the incentive for that person to do
11 it? Where's the money?
12 MR. DOYLE: Thank you very much. We
13 are going to forgo any questions from the
14 audience because Justice Schlesinger is with us
15 and he has to get back to court at 2 o'clock.
16 I would like to thank Mr. Adler for
17 his very thoughtful and helpful comments.
18 (Applause)
19 MR. DOYLE: Justice Schlesinger is a
20 Justice of the New York Supreme Court, a very
21 distinguished member of the court, and we very
22 much appreciate his joining us today. Thank you.
23 JUDGE SCHLESINGER: I thank you all
24 very much. I did want to say initially I wasn't
25 going to direct myself to the report and its
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 162
2 contents.
3 As a judge with some experience, I
4 have to tell you frankly, I haven't made up my
5 mind as to what I would want to do in this
6 situation. However, I think the Association is
7 owed a great debt by all of us for contributing
8 to what I consider to be a good, intelligent,
9 public discussion of the issues that are raised
10 in the report, because I don't think that this
11 report and its recommendation will be accepted
12 very readily in our present political climate.
13 What I want to deal a little bit with
14 is the way I, as a Supreme Court judge in this
15 position now for about 20 years, see the war on
16 drugs as, in my experience and the experience
17 shared by most other judges, and I want to
18 suggest, perhaps, some things that would help
19 remedy or help in any way.
20 The war on drugs is, as I see it, in
21 our court -- and we have tens of thousands of
22 cases involving these $10 sales of a vial or
23 packets of heroin, and they are brought into our
24 system by the thousands every year.
25 The armies in this great war on drugs
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 163
2 are on one side, the law enforcement side and by
3 and large the generals in that fight are
4 politicians who want to be re-elected and want to
5 be tough on crime and sometimes assign huge
6 amounts of the public purse to enforcement of
7 laws which are in some respects cruel, some
8 counterproductive and some which solve no
9 problems whatsoever.
10 The soldiers in the fight on the law
11 enforcement side are hundreds and hundreds and
12 hundreds of police officers, other law
13 enforcement people who derive their livings from
14 this war, their pensions from this war and have
15 stated interest in continuing this war on drugs,
16 because this is their livelihood.
17 On the other hand, as I see it, as I
18 sit in the court and I deal in my courtroom
19 probably disposing of 500 or 600 cases and
20 probably dealing with 50 or 60 -- 50 trials per
21 year.
22 I see the enemy in this war, whether
23 intended or not, I see the enemy in the war to be
24 hundreds and hundreds and thousands of basically
25 blacks and Hispanics from the ghetto areas of
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 164
2 this city.
3 I have in my career, probably over 20
4 years, tried 15 or 20 cases and maybe disposed of
5 another 50, which involved more substantial
6 quantities of drugs, involving kilos and multi
7 kilos. But this war I'm talking about is what I
8 see. And they are dragged in in these buy and
9 bust operations which have been weighed down in
10 our court system in some alarming way. To the
11 extent that our treasury is being spent not
12 productively.
13 Our priorities are not turned to the
14 solutions of violent crimes, rapes, robberies,
15 burglaries, arsons, which a court whose direction
16 should be spending time not to solve those issues
17 but see that they are resolved as quickly as
18 possible with the major resources that we have.
19 I will tell you that this great war is
20 fought in what I consider to be a highly cynical
21 way.
22 When these, I think, basically black
23 and Hispanic youngsters are brought in, they
24 range in age of 16 up to 20, 25 by and large.
25 They come into the criminal court and one would
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 165
2 think that on the first occasion that they are
3 brought in that the system itself and law
4 enforcement would be looking to, in some way,
5 deal with the addiction of many of them and in
6 some way with others to say this is your first
7 brush with this system, you have violated a law
8 and maybe you ought to spend a little time in
9 jail. I'm not talking about long periods of time
10 but a period of time that would at least make the
11 person aware that they violated the law and if
12 you violate the law maybe you go to jail.
13 But what we do in the system in a
14 rather cynical way is the District Attorney's
15 Office immediately offers by and large a plea to
16 a felony, with probation. The defense lawyer
17 feeling in many cases that that the client is
18 going to be convicted likely on the evidence, and
19 they will go to trial and get at least one to
20 three years, will recommended to his client that
21 he take the plea.
22 The client is absolutely happy because
23 he goes outside of the courtroom and like Eddie
24 Cantor, claps his hands and "he ain't going to
25 jail," he's going right back on street, and the
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 166
2 court themselves will accept this kind of plea
3 without looking into, at all, the question of
4 alternative sentencing. They have a disposition,
5 that is, they have solved the case and on their
6 record there was another disposition.
7 If anybody tells you that the number
8 of dispositions that a judge makes is not a very
9 substantial factor in weighing the effectiveness
10 of that judge, they are either lying about it or
11 they don't know what's going on.
12 The other cynical aspect about it is
13 that everybody at that time, the D.A., the lawyer
14 for the defendant and the court knows that what
15 we are doing here is creating a generation and
16 now we have created two generations of second
17 felony offenders. We all know that within six
18 months, maybe a within a year, that very same
19 person who is given this great probationary
20 sentence will be back with us and then the system
21 under the circumstances puts the screws to this
22 person.
23 What the system says, certainly in New
24 York County, and Mr. Morgenthau's new guidelines
25 on the subject is, if you are a second felony
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 167
2 offender on a plea, the least you are going to
3 get is three to six years, six years in prison is
4 the maximum. Minimum three years. You go to
5 trial you are going to get 4 1/2 to nine years.
6 And that's when we put the screws to these
7 people.
8 I will tell you what we are doing in
9 this system, that is, both in terms of sentencing
10 of the second felony offender.
11 It is inappropriate for the particular
12 crime to which these people are being sent to
13 jail for, by and large people without a record of
14 violence. It is also disproportionate to what we
15 do on an everyday basis. I have, almost on a
16 daily basis, given pleas in robberies, one to
17 three, six months in jail and five years of
18 probation. I have given rapes, for particular
19 reasons, three to nine years. And on the very
20 day we do that, we are sentencing somebody to 4
21 1/2 years to nine years for the second sale of a
22 $10 bag of whatever it is.
23 I have had situations in which on the
24 very same day some, I guess, 50 or 60-year-old
25 Hispanic woman appeared before me and had been
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 168
2 told that "No longer is three to six open to you,
3 the minimum you will get is four to eight because
4 you had the temerity to turn down the offer of
5 three to six."
6 I had a robbery, which through the
7 magnanimous offer of the people, a robbery in
8 which somebody was hurt and required stitches,
9 was offered two months in jail and five years of
10 probation, which I would not approve. But that
11 shows or illustrates the disproportionate
12 sentences they are meting out.
13 Now, I think that some steps had been
14 taken by the District Attorney's Office certainly
15 here in Manhattan and in Brooklyn, even before
16 the change in the law in what they call their
17 DTAP program.
18 The problem with the DTAP programs, as
19 I see it, the decision as to sentencing and what
20 should happen to somebody before a judge for
21 sentencing, it appears to me, is a highly
22 exquisite decision which should be decided by a
23 judge not by the District Attorney's Office. If
24 these decisions were personally being made by Mr.
25 Morgenthau or Mr. Hynes as to whether somebody
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 169
2 should go under that program, I would say that's
3 pretty good because I think very highly of both
4 of those gentlemen. But these decisions, which
5 are very important to these people, are not going
6 to be made by Mr. Hynes and they are not going to
7 be made by his deputy and they are not going to
8 be made by Mr. Morgenthau.
9 The people who are going to make those
10 decisions is probably a young lawyer, man or
11 woman, who probably has had one or two or three
12 years experience, who is very anxious to rapidly
13 advance in a system in which sometimes toughness
14 is taken as a prerequisite to promotion, and that
15 those decisions are going to be made biased to
16 the DTAP program and have been.
17 I would suggest as bad as we judges
18 are, we are, by and large, much older, a good
19 deal more life-experienced, some of us have even
20 risen to where we have some wisdom. We had a lot
21 experience as lawyers throughout our lives, and I
22 would suggest that our decision -- and this
23 really exquisite decision -- whether somebody has
24 to go to state prison or to be in a drug program
25 is one to be decided by judges, not by Mr.
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 170
2 Morgenthau's office and not by Mr. Hynes' office
3 as much as I have great respect for these people.
4 The last thing I wanted to talk about
5 was there has been a change in the law. That
6 change in the law essentially means that it is
7 possible for somebody who has his second small
8 drug sale, if the prior one was a deal in an A
9 felony, can be given as what I understand is an
10 immediate parole and as a condition to parole you
11 have to spend, I think, six weeks in some prison
12 drug facility, and after that you're on parole.
13 The problem with that one, again, and
14 why it will solve no problems whatsoever, is it
15 does require the approval and the consent of the
16 District Attorney's Office. So we're back in
17 precisely the same pot as we were before. We
18 will be using our public treasury to send people
19 to prison for long periods of time who don't
20 represent violent criminals.
21 We will be benefiting the soldiers,
22 the police and the other people involved in this
23 kind of buy and bust program and continuing their
24 employment and continuing the prospects of
25 pensions and that's the only thing we will be
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 171
2 accomplishing in my judgment.
3 So it would be my sincere
4 recommendation that the Association itself direct
5 itself to some of these interim problems while
6 the greater problems are awaiting, the bigger
7 problems are awaiting some resolution in the
8 public sphere.
9 I thank you.
10 MR. DOYLE: Thank you very much.
11 (Applause)
12 MR. DOYLE: Let me go to my right.
13 Agatha?
14 MS. MODUGNO: No.
15 MR. MARKEWICH: Judge, a number of
16 years ago Roger Hayes and I were eating lunch and
17 maybe we had something to drink, I don't know,
18 but we were speculating on the whole criminal
19 justice system. I think at the time it was a
20 problem -- you were probably Hogan's Chief of
21 Trials or Morgenthau's Chief of Trials at the
22 time, and it went beyond, of course, the drug
23 area, but we were thinking about how everybody
24 has an investment in the continuation of crime,
25 that is to say, the judges do, the prosecutors
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 172
2 do, the defense attorneys do, the parole
3 officers, probation officers, police, correction
4 officers, et cetera. And we kind of figured out
5 roughly that if we stop enforcing crime
6 altogether and abolish all the positions, we
7 could give everybody who had previously been a
8 criminal something like $50,000 and send them on
9 their way.
10 But as brilliant as that solution was,
11 or seemed, over a couple of beers, obviously, it
12 would create a greater social problem than it
13 would solve because as many people as there may
14 be if they receive $50,000 would stop committing
15 crimes there would be still be a large number who
16 might continue to commit serious crimes.
17 So exclusive of this report and with
18 due recognition of the fact that there is a lot
19 that's wrong with the system and there are a lot
20 of people who wanted to maintain the system as it
21 is for reasons that involve, among other things,
22 their own job security and, indeed, I think the
23 size of your own court might shrink by some
24 degree, at least with regard to the Acting
25 Justices, if the drug laws were not enforced to
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 173
2 the degree that they are, what are your own
3 thoughts on what we might do to succeed in
4 dealing with this, call it social problem or call
5 it criminal problem or call it physical health,
6 mental health problem to reduce the costs to
7 society economically and socially?
8 JUDGE SCHLESINGER: One of the
9 suggestions I do have so that the court can
10 concentrate on what I consider to be priorities,
11 that is, as to violent crimes and to have some of
12 our resources directed in those areas, is, I
13 think, in some way to take these small drug cases
14 out of the Supreme Court, to create a new body
15 called a court, like a justice of the peace
16 court, in which mandatory sentencing will not be
17 required, in which you don't have to be a fully
18 elected judge because most of the decisions made
19 by these judges in buy and bust cases can be made
20 by a hearing officer without the training and
21 background of a judge. They are very simple
22 issues by and large.
23 I would, again, have advance remedies
24 that there are alternatives to jail sentences.
25 Drug programs and matters of that sort. I think
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 174
2 that in the end it would be cheaper and probably
3 more efficient because the kind of drug war we
4 see in our courts is really an environmental
5 problem in these neighborhoods. That's precisely
6 what I am saying. I think we ought to have
7 courts or bodies that meet that neighborhood
8 environmental problem in a way which saves some
9 of our public money, permits us to concentrate on
10 violence in our society, which is a constant
11 threat to each and every one of us every single
12 day.
13 That's in general what I think should
14 be done in the shorter run, before the great
15 public decision has been made as to whether we
16 should legalize drugs and what drugs.
17 MR. DOYLE: Judge, what is your sense
18 of that broader proposal? The main thrust is
19 that it would take the profit motive away from
20 all these dealers who are constantly in the
21 system, the ones you have been describing. They
22 are in it for an economic motive. What is your
23 view of that?
24 JUDGE SCHLESINGER: I don't
25 necessarily disagree with the positions taken by
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 175
2 the Bar Association in the report. I do
3 understand and also appreciate the arguments
4 against decriminalization that have been made by
5 a lot of our public servants, particularly Mr.
6 Rangel and others, who feel that the legalization
7 of drugs, hard drugs, is in effect consigning
8 youngsters, blacks and Hispanics, in these ghetto
9 to areas to a life of drugs.
10 I think there is perhaps something
11 that can be said for that. I haven't made up my
12 mind about it.
13 I just feel we have to give an awful
14 lot of public discussion and intelligent
15 discussion to what we do in the realities of the
16 situations we face. It may be that certain drugs
17 should be legalized, others not.
18 But I do think that whatever is
19 decided ultimately has to be decided in some way
20 addressing ourselves to the concerns that have
21 been raised by Congressman Rangel and others who
22 have spoken on the subject.
23 MR. DOYLE: I think we have time for
24 one question from our audience. If there are any
25 questions at this point? If not. I thank
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 176
2 Justice Schlesinger -- do you have a question?
3 A QUESTIONER: Hi. I was just
4 wondering if all those hundreds and thousands of
5 people who you say come through your courts every
6 year for the many years you have been there, if
7 you can maybe comment on how many you think have
8 had sufficient education, some sort of job
9 skills, were any of them qualified for decent,
10 legal work or was this perhaps one of the only
11 options they had available for income?
12 JUDGE SCHLESINGER: I can answer that.
13 I think very few. And often if I take a plea in
14 a case where I know the fellow is going to get
15 four and a half to nine years or three to six
16 years or something like that, and the person
17 appears to me to be intelligent and articulate, I
18 stand at the the defense table or sit and I say,
19 "You appear to me to be a very nice, articulate
20 young man. How did you get involved in this?"
21 One of the fellows said to me, kind of
22 sadly, "Judge, you're never going to be able to
23 understand. You have to live in my street to be
24 able to understand how I got into this problem."
25 I asked the same question of a guy
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 177
2 just the other day. A fellow about 45 involved
3 with his third or fourth drug conviction and had
4 to go to jail, probably four and a half to nine,
5 something like that.
6 I said, "You look to be an intelligent
7 man, how did you get involved in this stuff?"
8 This guy looked at me and said, "You know, I have
9 been an addict all of my life and I'm not a
10 robber and I don't burglarize. This is the way I
11 make money to feed my habit. I sell."
12 So, by and large, the people we get
13 are not going to have the skills that you are
14 talking about at all and they are involved in it
15 for a whole range of problems, many of them I
16 think societal, economic, social, et cetera.
17 And I just have to deal with them as
18 best we can. The present way we are dealing with
19 it, I don't think is the best we can, pr the best
20 we can do.
21 MR. DOYLE: Yes.
22 A QUESTIONER: I wondered, I was very
23 impressed by Mr. Van Gestel's report that there
24 is a lot of activity in the Massachusetts area in
25 trying to change the set up. I was wondering
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 178
2 whether you would recommend something should be
3 happening in New York among the judiciary.
4 MR. MARKEWICH: Can I add to that
5 question, just by noting as an acting village
6 justice myself I note that and therefore am
7 fascinated by your more or less description of us
8 as kind of an environmental court.
9 I note that we get directives and
10 advice and teaching materials from OCA all the
11 time and the same question cropped up in my mind
12 when I heard him speaking.
13 JUDGE SCHLESINGER: I have to be fair
14 to judges. I think by and large most of the
15 judges that I know and some that I don't know
16 whose views I hear, I think they by and large
17 feel the inequities of the present system as we
18 understand it.
19 I don't think there has been at all on
20 any organized basis some education of judges to
21 the problems that have been before them all of
22 the time of people on drugs, addicted people, et
23 cetera. There is not very much happening in the
24 court system to do it.
25 I don't think the court system as a
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 179
2 whole, we judges as a whole have taken an active
3 enough part in trying to fashion changes in law
4 and make changes in that law. There are lots of
5 reasons for that.
6 I think, one, that judges by and large
7 don't like to take active positions in any area.
8 That I will say. I think one of the problems in
9 our system and why there isn't a greater voice by
10 judges because of our system which involves
11 Acting Supreme Court Justices, which I don't
12 think we should have. I think it is a terrible
13 system. I think there are an awful lot of acting
14 judges who know that they are going to be seeking
15 elective seats in the Supreme Court, and they are
16 going to go before a million panels and they are
17 going to go before 3 million politicians and,
18 therefore, there is no great temptation to step
19 on anybody's toes. Therefore, I don't think,
20 frankly, that we as a judiciary have been very
21 active in dealing with these subjects nor have
22 the organizations which appear to represent us as
23 judges.
24 I don't think we have done enough. I
25 don't think that the administration has done
PIROZZI & HILLMAN 212-213-5858
1 jbp Adler 180
2 enough in this area whatsoever.
3 I thank you all so much. It was a
4 pleasure being with you.
5 (Applause)
6 MR. DOYLE: That concludes our
7 hearings.
8 And I, again, would like to thank Mr.
9 Pirozzi and his firm, Pirozzi & Hillman, for
10 joining us this morning and working on a pro bono
11 basis to do the transcript. And I thank all of
12 the members of the audience for their interest
13 and participation.
14 (Time noted: 1:28 p.m.)
15
16
17
18
19
20
21
22
23
24
25
PIROZZI & HILLMAN 212-213-5858
