HaCKeRz Kr0nlcKLeZ 1/HaCKeRz Kr0nlcKLeZ.iso/drugs/hearings.2.2

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                     The Committee on Drugs and the Law

                         Public Hearings on a Report:

                  A Wiser Course:  Ending Drug Prohibition

                                Held at
             The Association of the Bar of the City of New York
                           42 West 44th Street
                        New York, New York  10036
                                  on
                           October 11, 1995















                          Q & A Reporting Service
                             175 Main Street
                       White Plains, New York  10601
                              (800) 675-EBTS
                       BY:  Traci L. Collins, R.P.R.






















































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             PANEL:

             Edward Davis - Chairperson
             Nancy Breslow
             David Affler
             Jack Frolich
             John Trubin
             Charles Knapp

             SPEAKERS:

             JAMIE FELLNER, ESQ.
                  Association Counsel, Human Rights Watch
             KEVIN B. ZEESE
                  Interim Executive Director,
                  Harm Reduction Coalition
             JEFFREY C. MERRILL
                  Vice-President, Center Addiction & Substance
                  Abuse, Columbia University
             HON. ROBERT SILBERLING
                  Special Narcotics Prosecutor
             DAVID C. LEVEN, ESQ.
                  Executive Director, Prisoners' Legal Services
                  and PRDI







































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                    MR. DAVIS:  Welcome back everyone to the
               fourth session of these hearings of the Special
               Committee on Drugs and Law, the Association of
               the Bar of the City of New York.  On our
               schedule to speak next was George Bushnell, the
               recent past President of the American
               Bar Association.  Unfortunately, Mr. Bushnell
               is not able to travel today from Detroit.
               We're very lucky to have the opportunity to
               invite Dr. John Morgan to speak to us during
               this time.  Dr. Morgan is a physician and
               clinical pharmacologist.  He is a professor at
               the City University of New York School of
               Medicine.  Welcome, Dr. Morgan.  Thank you for
               coming.
                    DR. MORGAN:  It's a pleasure to be here.
               Thank you for making space for me.  I will
               speak very briefly, in part because I have to
               be at York College at 3:00 to lecture.  I don't
               know if I'm going to make it, but we will see
               if I can.
                    I think I'm one of the few people involved
               in the drug policy debates who is
               professionally involved with drugs.  My entire
               professional life I have been a pharmacologist
               with the responsibility of teaching medical
               students and others how to evaluate claims,
               studies, anecdotes and general expressions
               about what drugs do to people and what drugs do
               to the populace.  Although there may well be
               many in the drug policy field who don't agree
               with the interpretations that I make of data,
               my background at least prepares me for the
               evaluation of such claims.
                    People are prone to make claims about the
               good that drugs do both in terms of their
               therapeutic benefits and the good that drugs do
               for them in terms of emotive states or even
               recreational use.  Of course, on the other
               side, people are very prone to make claims
               about the harms that drugs do both to
               individuals or to individual tissues or to the
               society as a whole.  So, I have always enjoyed
               this being part of my life; that is the
               evaluation of drug claims:  Therapeutic, toxic
               or otherwise, and bringing to them my training
               in medicine and science.
                    So when I thought about the brief period
               of time I had with you today, I wanted to talk
               about just one issue.  I initially thought I'd

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               talk about two.
                    One of the claims that I would not be
               surprised if you've heard during this time or
               will hear and one of the claims that's
               frequently made is that, after all, Federal
               Prohibition of alcohol was very good for the
               nation's health.  Many of my friends who are
               physicians will say well, yes, I know we
               generated a criminal enterprise and it was an
               enormous problem, but still, things were much
               better.  We had fewer alcohol related deaths.
               There was this really great burst of healthful,
               temperance-based American life.
                    For a long time I wondered about those
               claims and finally decided to see if I could
               find something out about them.  I have here
               four pictures.  I'm going to use three of them
               to talk briefly about the claims that
               prohibition was good for the nation's health.
               The first is headed "Prohibition Public Health
               and Safety" and it has to do with death rates
               from disease associated with alcohol use from
               1900 to 1930.
                    These data were collected by a man named
               Warburton for his 1932 thesis from Columbia
               which was entitled "The Economic Outcomes of
               Prohibition."  People are critical of
               Warburton.  He was, after all, funded as a
               graduate student by prohibition opponents, but
               still, most individuals still use the data he
               collected regarding this argument.  So, I
               direct you to the three separate reports of
               cirrhosis of the liver under 1, 2 and 3 and
               these just reflect separate reporting entities,
               various registration areas of the United States
               and the Metropolitan Life Insurance Company.
                    It's easy to note that a decline in the
               prevalence of prohibition had begun in the
               United States by the turn of the century.
               There's some arguments about when this decline
               began.  Some people date it to 1907.  Some
               later on, but the apparent benefits of
               prohibition claimed by many that there was a
               decrease in cirrhosis of the liver for
               instances not easily attributable to the
               federal law of prohibition because any decline
               in cirrhosis began perhaps at the turn of the
               century, and I would like you to look very
               carefully at 1920 and note that from 1920 to
               1930, and Warburton was collecting these data

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               in 1932, so they were as good a data as were
               available, you will notice that the prevalence
               of cirrhosis increased in the United States
               during the time of Federal Prohibition.
                    Most everyone, actually even those who are
               on the other side of this argument agree, that
               the prevalence of cirrhosis increased during
               Federal Prohibition.
                    Now, let me turn you to the next page.
               This is a more modern graph.  It comes from an
               article by Newton and Myron, who are economists
               at Boston University.  They took Warburton's
               data and manipulated them further in a variety
               of ways, which I do not have to tell you about,
               but you will notice again that from the turn of
               the century there was a decline in most of the
               adverse consequences associated with alcohol,
               and it's generally believed that there was a
               significant decline in alcohol consumption in
               the United States well before Federal
               Prohibition.  It may have begun around 1910.
               It may have begun in 1900.  Again, individuals
               argue about this.  But you will notice that.
                    And, of course, there is a very important
               decline in alcohol consumption during the first
               world war.  We had formal Federal Prohibition
               of alcohol during World War I and many of the
               individuals who might have been consuming much
               alcohol were of course overseas fighting
               battles.  So there was a significant decline as
               far as anyone can tell in alcohol consumption
               between 1915 and 1918.
                    Now, look at Newton and Myron's data and
               look at the magic year of 1920 when Federal
               Prohibition became important.  Well, notice
               from 1920 on that there was an increase, as
               best anyone can tell, in all of the adverse
               consequences of alcohol consumption.
                    There was an increase in alcoholism
               deaths, a quite precipitous increase in
               alcoholism deaths.  There was an actual
               increase in drunkenness arrests during Federal
               Prohibition.  There was an increase in
               admission to American hospitals for alcohol
               psychosis, and although it is not as noticeable
               as it might be because the increase was
               gradual, there was an increase in cirrhosis;
               quite notable as I pointed to you on the former
               pages and, in fact, notable here although
               slight.

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                    In fact, both Myron, and earlier
               Warburton, had used these proxies to estimate
               the consumption of alcohol during Federal
               Prohibition, and they came to the same
               conclusion, that alcohol consumption increased
               in the United States during Federal
               Prohibition.
                    Using these proxies, the prevalence of
               cirrhosis, alcoholism psychosis admission
               rates, drunkenness arrests, it appears to
               people who have to make economic projections,
               without adequate data, that the consumption of
               alcohol increased during Federal Prohibition.
                    The third cite I wanted to show you is one
               that was provided to me by an Australian
               scientist, a pharmacologist named
               Greg Cheshire.  Now, what I've learned from
               Dr. Cheshire and what I've learned now from a
               variety of other sources is that the decline in
               alcohol consumption and the decline of the
               prevalence of cirrhosis was a global
               phenomenon.  Beginning about the turn of the
               century, for reasons that are to me unclear,
               and to most people who write about it, alcohol
               consumption and the prevalence of cirrhosis
               began to decline in the world around 1900.
               That is, if we can accept the scattered pieces
               of data:  The data from the United States, the
               data from Great Britain, the data from Denmark
               and the data from Australia, that this decline
               was really quite notable and occurred basically
               everywhere in the world where data were
               maintained.  So, if you look at the Australian
               prevalence of cirrhosis, you'll see it was
               higher than the American prevalence of
               cirrhosis.  You'll see it began a gradual
               decline.  Now its decline remained gradual
               until about 1920, while we had a more
               precipitous drop, in part, because of
               World War I, and in part because of a variety
               of other factors, but you'll note in 1920, when
               Federal Prohibition came into effect, that the
               prevalence of cirrhosis as calculated by
               Australians, probably from the same data that
               you saw in my first paper, began to increase,
               and increased quite markedly until 1930.
                    Look at the Australian data.  The
               Australian prevalence of cirrhosis continued to
               decline; although slightly, it continued to
               decline.  It continued to decline in Great

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               Britain.  It continued to decline in Denmark.
               It continued to decline in Australia.  It
               continued to decline everywhere where the data
               were maintained except the United States.
                    Federal Prohibition was so bad for the
               nation's health that it's almost incalculable.
               Not only did we generate a monstrous criminal
               enterprise -- Pablo Escobar is the Al Capone of
               the 1920s -- it generated enormous episodes of
               poisoning.  One of the things that I've written
               extensively about is the episode of paralysis
               that occurred in 1929 and 1930 in the United
               States because of contamination of a popular
               prohibition beverage with a toxin to the spinal
               cord.
                    The potency of beverage increased
               markedly.  Haywood Hail Bruin (phonetic) said
               Prohibition made the United States change from
               a nation of good beer drinkers to a nation of
               bad spirit drinkers.
                    Most of the decline prior to Prohibition
               occurred in the consumption of beer, and what
               happens is what always happens; the iron rule
               of Prohibition:  That the material smuggled is
               more potent.  One smuggles distilled spirits
               across the Detroit river rather than beer.  One
               smuggles powder cocaine from Columbia rather
               than coca leaves.  One does not try to market
               coca beverage, which was legal at the turn of
               the century.  One begins to market a more
               potent and dangerous product.
                    So I believe what happened in the United
               States was in addition to the marketing of
               potent, more dangerous material, the generation
               of the criminal enterprise, we actually caused
               much more harm of the harm we know is
               attributable to alcohol because people
               continued to drink at a committed rate and,
               indeed, consumed more powerful beverage because
               of the phenomenon of Prohibition.
                    So, in the rest of the civilized world, in
               the rest of the world where data were
               collected, the prevalence of cirrhosis declined
               quite steadily until 1920, and in the rest of
               the world a smaller decline occurred.
                    In the United States prevalence declined
               until 1920 and then began to go back up again
               because of the poisonous effects of
               Prohibition.
                    Prohibition is universally bad for the

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               nation's health.  It was in the 1920s and
               1930s.  It continues to be so for those same
               reasons.
                    Let me close by telling you that Newton
               and Myron did a calculation based on these
               proxies for alcohol consumption and estimated
               that Prohibition was attended by an increase in
               alcoholic beverages from 1920 until about 1933.
               They believe that the removal of Prohibition
               caused no increase in alcohol consumption in
               the United States.
                    It is frequently stated that alcohol
               consumption went up significantly after
               Prohibition.  Their paper published three years
               ago says that no, alcohol consumption did not
               go up in the United States again until
               World War II.  And so from the post prohibition
               period, although this requires estimation and
               the use of proxies, there was actually no
               increase in alcohol consumption with the end of
               Prohibition.  So, Prohibition does nothing of
               what it claims.  It does not help.  It harms.
               It does not do what it claims to do, which is
               to decrease the consumption of dangerous
               product.
                    In fact, I would say that because of
               merchandising, franchising, the heat of the
               illegal market, one of the ways to ensure the
               increase of consumption of a dangerous product
               is to prohibit it.
                    Thank you for the time you've given me and
               I'll be happy to answer a few questions.
                    MR. DAVIS:  Thank you, Dr. Morgan.  Any
               questions from the panel?  Mr. Knapp?
                    MR. KNAPP:  Thank you.  Dr. Morgan, you
               mentioned that the phenomenon, if the numbers
               could be believed, of a worldwide decline in
               alcohol consumption started around the turn of
               the century for reasons that are unclear.  I
               would ask if you could elaborate on the
               competing theories as to that phenomenon.
                    DR. MORGAN:  One of my friends in
               sociology always reminds me that important
               social events are over determined; that is one
               can draw a long list.  First of all, the
               temperance movement clearly mattered.  There
               were many people, particularly in the western
               world, who believed in the dangers of alcohol
               and who encouraged people not to drink and who
               encouraged their children not to drink, and who

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               encouraged church affiliation and a variety of
               other things and taking of the pledge.
                    There is a possibility that the
               immigration to the United States increased the
               amount of wine consumption.  There are many
               people who believe that that was a significant
               possibility, Mediterranean immigrants in
               particular.  So that wine became more popular
               in the United States in the years prior to
               Prohibition.  There were a variety of
               movements.
                    There is some possibility, there is some
               speculation, that alcohol diminished hazards
               because again of diminished proof and better
               preparation, although I know of very little
               evidence for that.
                    So, when I talk with my friends who are
               prohibitionists, I admit to them that the
               social movement to try to get people to drink
               less alcohol may have been a positive phenomena
               in the United States.  The mistake was adding
               to it the power of law.
                    MR. KNAPP:  Let me just follow up very
               briefly.  You separated out wine consumption;
               that may have gone up. So --
                    DR. MORGAN:  Yes, wine consumption may
               have gone up in the United States from the turn
               of the century because of the important
               immigration of Mediterranean people who drank
               large amounts of wine.  So, wine is inherently
               safer than distilled beverages although one can
               certainly give oneself cirrhosis with wine.  If
               you're a committed enough drinker, you can do
               it.  It's just a harder job.
                    Also the patterns of wine consumption in
               the Mediterranean nations have tended to be
               fairly safe patterns.  Italy has a relatively
               low prevalence of cirrhosis despite a fairly
               high per capita consumption of alcohol.  So,
               there's a possibility, and again, these are
               scholars who write about these phenomenon, and
               they're very hard to evaluate, but that the
               shift, prior to Prohibition, toward wine was a
               very positive event and then with Prohibition,
               although wine drinking continued in the United
               States, beer drinking was then replaced.
                    I should mention one other factor to you,
               and that is that beer consumption may have
               decreased in the United States because of the
               fact that it was German, and that the legacy of

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               World War I was to turn people against places
               where beer was sold and the consumption of
               commercial beers because they were identified
               with Germanic peoples; so that the dilemma is
               that spirit consumption increased during
               Federal Prohibition.
                    MR. KNAPP:  One last question.  After
               Prohibition was over, do you have any
               statistics to show that there was a change in
               the mix of spirits, hard liquor, versus beer?
               Did it re-establish the old proportions or not?
                    DR. MORGAN:  Not the old proportions.
               There have been some shifts in recent years
               away from distilled spirits, but from
               Prohibition probably until the '60s we remained
               a nation which consumed significant amounts of
               distilled spirits; although we continued to
               drink beer.  Beer came back.  And we continued
               to drink wine.  Basically our change to
               distilled spirits remained an important factor
               in the United States until the 1960s and '70s
               when it began to turn down again.
                    MR. KNAPP:  Thank you.
                    MR. DAVIS:  Dr. Morgan, I'd like to ask a
               quick question.
                    DR. MORGAN:  Yes, sir.
                    MR. DAVIS:  Just to help us interpret the
               data you've presented this afternoon, what
               amount of time generally passes between a
               period of heavy consumption of alcohol by an
               individual and death by cirrhosis?
                    DR. MORGAN:  This is one of the very
               difficult dilemmas these data and other data
               face.  It is generally believed that a
               significant amount of time, three to four to
               five years, is required of committed drinking
               before one can do enough hepatic liver damage
               to bring about cirrhosis.
                    One of the reasons that's difficult to
               interpret is that during the period 1920 to
               1922 there was significant stockpiling of
               liquor in the United States.  There was a
               significant drinking of what had been saved
               against the idea of Prohibition, and also the
               death from cirrhosis appears to require active
               drinking at the time.  People who have become
               abstinent apparently seldom die of cirrhosis,
               or who have become temperant, but if
               individuals continue to drink, they will die
               even if they've had a period of time before of

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               temperance.  So this confuses all of these
               data.  I certainly admit they do, but I think
               all in all it adds up to the fact that alcohol
               consumption either held its own or increased
               steadily and it was of the more dangerous type.
                    MR. DAVIS:  Thank you.
                    DR. MORGAN:  Thank you.
                    MR. DAVIS:  Do we have time for any
               questions from the audience, Dr. Morgan?
                    DR. MORGAN:  Sure.
                    UNIDENTIFIED SPEAKER:  I just wondered in
               Europe where they didn't have a phenomena like
               Prohibition, is there any way to tell if there
               was any shift in Europe between wine and beer
               to more powerful spirits independent -- I mean
               did that happen in Europe even though they
               didn't have Prohibition?
                    DR. MORGAN:  No.  The general belief, of
               course, is that the European countries which
               Professor Harry Levine has characterized as
               temperance cultures, that their relatively high
               consumption of distilled spirits continued, but
               in the wine and beer cultures there wasn't much
               of a change, and that's the general reason for
               the belief that there was not much increase
               during the same time that we had an increase.
                    There is, I'm afraid, much argument about
               this.  There are people who believe that in
               Great Britain serious attempts to regulate
               alcohol consumption came into place during this
               time.  There was the temperance movement in
               Britain.  There was some evidence of people
               being concerned:  So pub closures, and holiday
               times; I mean holidays during the day, the pubs
               being closed from 2:00 to 5:00; that these
               factors may have led to this continued, slight
               decline in cirrhosis.  There was certainly no
               large shift toward distilled spirits in the
               rest of the world.
                    UNIDENTIFIED SPEAKER:  The only other
               thing that has nothing to do with drug abuse
               actually, it's just that I've read sort of
               epidemiologic investigations into fertility
               rates over the last few hundred years.  They
               seem to rise and fall precipitously over
               periods of time and have absolutely nothing to
               do with any factors that you could consider.
                    I just wondered if there was any way to
               look into this and see if there might be a
               correlation between fertility rates rising and

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               falling for no good reason or --
                    DR. MORGAN:  I can't comment on that.
               I've certainly heard people make a variety of
               speculations that fertility rates fell,
               particularly during times of bad nutrition, but
               I can't say anything about that.
                    UNIDENTIFIED SPEAKER:  Or the weather or
               something.
                    Thank you.
                    MR. DAVIS:  One more question.
                    UNIDENTIFIED SPEAKER:  Your last comment
               leads into the question I was going to ask.  Is
               there any other reason why cirrhosis increased;
               that is, could it be because of nutrition or
               any other kind of factor that caused it other
               than alcohol?
                    DR. MORGAN:  That's a very fair and
               pertinent question.  I know of no others.  In
               fact, the general economic well-being in the
               United States went up during the time of
               Prohibition.  From 1920 to 1930 we were in a
               period of general economic increase.  There was
               actually more money spent on automobiles and
               milk and food stuffs from 1920 to 1930.  Of
               course, 1930 was the time that things begin to
               fall apart, but during this period of time
               there was no reason to believe that there were
               other important causes of cirrhosis other than
               alcohol.
                    UNIDENTIFIED SPEAKER:  Are there any other
               factors that do cause cirrhosis of the liver
               other than alcohol?  Could you name just a few,
               just so we have some idea?
                    DR. MORGAN:  Sure, there's viral hepatitis
               which can result in cirrhosis.  There are
               poisonings with materials like carbon
               tetrachloride and other industrial chemicals.
                    The rule of thumb that alcohol consumption
               cirrhosis scholars give is it's their general
               belief that 70 to 75% of cirrhosis is due to
               alcohol consumption.  There are clearly other
               factors.  They still are not terrifically
               important in the overall scheme.
                    MR. DAVIS:  Thank you very much,
               Dr. Morgan.  Please apologize to your students
               for us for detaining you.
                    I'd like to take this opportunity to thank
               our court reporter who has been provided as a
               donation to the association by Q & A Reporting
               Service.  The reporter is Traci Collins.

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               Thanks.
                    It's my pleasure to introduce our next
               speaker, Jamie Fellner.  Miss Fellner is
               Associate Counsel for Human Rights Watch, which
               is this country's largest international human
               rights organization.  She is the director of a
               special project to examine the human rights
               implications of counter-narcotics policies.
               Miss Fellner is a Latin American specialist and
               a lawyer educated at Stanford University and
               Berkeley.  She has worked as an officer and a
               consultant to numerous foundations concerned
               with human rights and development in Latin
               America.
                    Thank you for coming.
                    MS. FELLNER:  Good afternoon.  I'm
               delighted to be here to speak today about a
               subject which I don't believe has been
               addressed yet by this committee in these
               hearings, which are the human rights
               consequences of counter-narcotic policies.
                    First, let me say a couple more words
               about Human Rights Watch for those who are not
               familiar with our organization.  Human Rights
               Watch works to expose and stop human rights
               abuses in every region of the world without
               regard to the political, ethnic, religious or
               other nature of the offending government or of
               the victim.  We focus on such problems as
               summary executions, torture, arbitrary
               detentions, restrictions on freedom of
               expression and assembly, using the standards of
               universal civil and political rights as
               embodied in the international laws and
               treaties.
                    As drug trafficking has spread around the
               world with ever larger numbers of countries
               serving as producers, transit countries and/or
               consumers of psychological drugs, so have
               national and international counter-narcotic
               programs and policies.
                    Other organizations and researchers have
               documented the failure of these programs to
               curtail the growth of the elicit drug business.
               Our concern, however, is quite different.
                    As a human rights organization we have
               become increasingly aware of the adverse impact
               many of these policies have on human rights.
               Not just the rights of drug producers and
               consumers, but the rights of many others as

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               well who become victims of abusive efforts to
               detain and prosecute drug offenders.  We have
               also become increasingly concerned about the
               corrosive impact many drug policies have on
               national institutions.  There has been
               considerable public attention given to the
               threats drug traffickers pose to democratic
               institutions, particularly in countries with
               new or fragile democracies.  There has been far
               less analysis and even less willingness to
               consider the threats posed by counter-narcotic
               programs themselves to these democracies.
                    What we see in numerous countries,
               however, is that in weak democracies with
               fragile institutions, with underfunded,
               overburdened, undertrained, understaffed and/or
               inefficient law enforcement and judicial
               systems with little tradition of public
               accountability and participation,
               counter-narcotic laws can have the perverse
               effect of undercutting the rule of law and of
               weakening the very democracies it purports to
               strengthen.
                    Now, why should this matter to you as you
               consider the question of criminalization and
               prohibition in the United States.  There is no
               question that many countries, for example,
               China and Iran, are fiercely committed to the
               criminalization of drug use to the extent of
               executing thousands of traffickers as a just
               released report by Amnesty International
               discusses, and they do so with little input
               from the United States.  But the fact remains
               that in many other nations as well as
               international forum, the United States plays an
               overwhelming role in determining the shape and
               drive of drug policies.  The United States uses
               its economic and diplomatic leverage to press
               for the prohibition and criminalization
               approach to drugs that mirrors that in this
               country.
                    The United States constrains the options
               available to other countries, including their
               ability to even consider alternative approaches
               to drugs that might reduce the current levels
               of violence and corruption that these countries
               experience.
                    What I want to do today is simply alert
               you quickly to some of the human rights
               consequences of criminalization policies.  We

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               believe it imperative that these consequences
               be acknowledged as the costs and benefits of
               drug policies in the United States are weighed.
               I'm going to focus primarily in the examples I
               use on Latin America, both because it is the
               source of the world's cocaine supply, and hence
               has been a primary focus in the last decade of
               U.S. counter-narcotic efforts.
                    I'm going to talk first on the impact on
               judicial systems and processes.  The
               administration of justice in Latin America has
               long been deeply troubled.  Courts are
               undermined by politization, inefficiency,
               understaffing, antiquated procedures.
               Corruption is endemic, but the effort to
               prosecute drug traffickers has greatly
               exacerbated existing problems and added new
               ones.
                    I forgot to state the obvious, which is
               that in all these countries, for example, the
               cocaine producing countries of Bolivia, Peru
               and Columbia, drug trafficking is illegal.  The
               consumption of drugs and the sale and
               distribution of drugs is illegal.  It's
               basically the same legal framework, in terms of
               what is criminalized, as exists in the United
               States.
                    As I was just saying, the effort to
               prosecute drug traffickers has exacerbated the
               existing problems in judicial systems.  Let me
               give you a couple of examples.
                    In Columbia in the late 1980s the
               government began to mount a serious frontal
               assault on narco traffickers in response to the
               failure of negotiation with the drug
               traffickers, rising levels of violence from the
               drug traffickers to counter-government
               initiatives, and in the escalating battle, the
               government began to change its legal systems.
                    It permitted police to hold suspects seven
               days without charges and held them
               incommunicado, including without access to
               lawyers.
                    It permitted the military to conduct
               warrantless searches of private homes.
                    Some of these various assaults on
               traditional due process, guarantees and
               liberties, including weakening of habeas
               corpus, were subsequently modified.  So I'm not
               saying they all exist today.  Some existed for

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               a year or two.  Some still exist today.  I
               wanted to give you a sense of the kinds of
               steps that have been taken.
                    The government also responded to the
               crucial problem they confronted in trying to
               bring narco traffickers to trial.  The drug
               traffickers were quick to offer judges either
               gold or lead, to use a Spanish expression.
               They could either accept bribes or receive
               bullets.
                    To protect the judges from bribery,
               intimidation and reprisals, Columbia created
               special courts with special procedures.  Drug
               trials to this day are presided over by judges
               whose identity is kept secret; they are
               faceless judges; and testimony can be received
               from faceless, secret witnesses.  Well, those
               of you who are lawyers or who are familiar with
               any notions of due process and civil liberty
               probably find that rather astonishing.
                    Obviously, the anonymity of judges
               undercuts the sense of personal responsibility
               needed to ensure care and impartiality in the
               delicate task of assessing guilt.  Allowing
               witnesses to remain secret obviously denies the
               accused the ability to probe into a range of
               matters affecting the credibility of the
               testimony.
                    An even more dramatic case of distortions
               in the judicial system is present in Bolivia.
               Bolivia is the world's second largest producer
               of coca leaf and a refined cocaine.  Under
               strong pressure from the United States Bolivia
               passed a law called Le Mil Ocho, Law 1,008, in
               1988 which established special courts and
               procedures for drug cases.
                    Under this system drug defendants are
               denied any possibility of pre-trial release no
               matter how minor their role in an alleged drug
               trafficking situation was.
                    A woman who is alleged to have been
               carrying a small amount of drugs on a bus can
               be put in jail without bail or any other form
               of release until she's tried.  Not only are
               they held without release prior to trial, but
               even if acquitted, even if found innocent by
               the trial court, they must remain in jail until
               the Supreme Court has reviewed that judgment,
               following a series of mandatory appeals.  In
               other words, given the problem with the courts,

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               innocent Bolivians can remain in jail for three
               to five years, often as much time as if they
               had been found guilty or more.
                    There have been other changes in the
               judicial system for drug traffickers in Bolivia
               which I won't go into here.  There is a report,
               which I have put outside, which we just
               released on Bolivia, "The War on Drugs," if
               anybody would like to learn more about that
               situation.
                    But primarily the point I want to make
               here is that there are repeated examples of
               countries in which governments in the name of
               upholding the law, that is drug trafficking
               laws, construct legal systems and procedures
               that violate principles of due process and
               other fundamental rights just the same way as
               these erosions have happened in the United
               States.
                    In addition, many of the systems that have
               been constructed also permit other kinds of
               violations.  For example, long periods of
               detention incommunicado facilitate torture and
               disappearances.  In fact, we see that violence
               by drug traffickers in Latin America, violence
               by which the traffickers seek to ensure their
               ability to continue their rather lucrative
               business, is not only notorious, but it has
               been matched in many cases by the violence of
               the government responding to them.
                    The world has been appalled by, for
               example, killings in Columbia.  The narcos have
               killed Attorney Generals, presidential
               candidates, judges, journalists, policemen.
               But the world has been far less appalled,
               because it has been far more ignorant, of the
               unlawful violence that has characterized some
               of the efforts to bring to justice those same
               narco traffickers.
                    In Columbia the brutality of the narcos
               has been, if not matched one for one, certainly
               matched nonetheless by torture and
               extrajudicial executions by the police,
               particularly in the late '80s and early '90s
               before Pablo Escobar was killed.
                    In Bolivia, today, the rural
               counter-narcotics police who are created,
               trained and funded to this day by the U.S. are
               notorious thieves and thugs.  They run rough
               shod over the residents of the coca producing

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               region.  They steal money, food and goods
               either directly or through extortion.  They
               beat people at whim and they detain them
               arbitrarily.  Alleged drug traffickers also
               claim they are tortured.
                    In recent months, as Bolivia has tried to
               comply with a U.S. ultimatum to eradicate
               hectares of coca this year, the violence has
               increased.  There have been at least four or
               five deaths in unclear circumstances at the
               hands of the narcotics police and scores of
               injuries.
                    What you see in Bolivia is a police with
               no tradition of investigative and detective
               work, a police which has traditionally relied
               on coerced confessions, a police which has
               traditionally been corrupt, and if not brutal
               on the dimension of the Columbian Police,
               nonetheless not known for its respect of
               courtesies, is suddenly confronted with the
               enormous external pressure translated into
               internal pressure to produce arrests and
               convictions of drug traffickers.  It's not
               surprising in this context that due process and
               respect for the rights of physical integrity,
               among others, have been sacrificed.
                    I could go on.  I could talk to you about
               torture in Mexico by federal police, which is
               endemic and notorious.  I could tell you in
               Brazil about Operation Rio last year, a joint
               military police effort to drive drug gangs from
               Rio's faveles (phonetic) which resulted in
               multiple cases of torture and several cases of
               apparent extrajudicial executions, not to
               mention hundreds of arbitrary detentions and
               unlawful searches.
                    I could also talk to you about the death
               penalty and the growing use of the death
               penalty to respond to drug trafficking, and I
               urge those of you who are particularly
               interested in the death penalty to get a hold
               of the new report by Amnesty International on
               this subject just published last week, released
               last week.
                    I want to turn quickly to another topic,
               which is corruption.  Violence is something
               which traffickers rely on in Latin America when
               they can't neutralize law enforcement efforts
               through corruption.  There is no question that
               drug trafficking corruption jeopardizes

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               democratic institutions and the rule of law.
               The United States Government has signaled
               corruption as a major threat faced by many
               Latin American countries.  However, corruption
               and the complicity of law enforcement agents
               with the drug trade also has human rights
               consequences.  For a fee, police protect
               traffickers by looking the other way.  They
               assist traffickers by serving as hired guns.
               For a fee public officials make sure drug king
               pins are not arrested or prosecuted.
                    In Mexico, for example, corrupt police
               routinely extort money from suspects in
               addition to using torture to extract false
               confessions.  They fabricate charges and frame
               suspects and then enjoy immunity in exchange
               for payoffs to their superiors.
                    In Brazil, Rio police in 1993 killed 21
               people in a massacre.  At the time Human Rights
               Watch thought the massacre was motivated by
               retaliation for the killing of four policemen
               by drug traffickers they thought the week
               before.
                    In fact, further investigations have
               uncovered that the motive was quite different.
               The police had expected to do a little
               extortion racquet when a shipment of cocaine
               was due to arrive.  Instead -- well, there was
               a foul-up.  Four policemen were killed by other
               policemen, and in retaliation, another group of
               police came in because they lost the shipment.
                    Among the indirect consequences of
               counter-narcotic policies on the harm to human
               rights is not only the link between corruption
               and brutality.  The notorious complicity of
               many Latin American police and military in drug
               trafficking weakens the legitimacy and
               development of these institutions.
                    It's hard to construct a rule of law when
               everybody knows police are on the take.
               Similarly, the effort to build strong civilian
               constitutional democracies is hampered by
               bringing military into the war on drugs.
                    The U.S. has pressed and continues to
               press hard for Latin American military to join
               the fight.  We believe, however, that an army's
               role should be limited to national defense
               against foreign threats.  Bringing the military
               into counter-narcotic operations not only
               invariably means corruption and human rights

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               abuses.  It also invariably seems to weaken
               efforts of civilians to establish the primacy
               of the civilian role and the control of
               domestic law enforcement.
                    I have a couple of minutes, I believe, and
               let me just touch on one other issue, which is
               distortions in U.S. foreign policy.  Drug
               trafficking has been placed in the pantheon of
               threats to U.S. national security.  It is
               described by state department officials in the
               dire dramatic terms formally used for the evil
               empire.  There are many within the U.S. foreign
               policy establishment willing to promote
               counter-narcotic objectives almost at any cost
               and to make it the primary touchstone of
               foreign policy within certain countries.
                    The United States is also, in its
               eagerness to promote counter-narcotic
               objectives, willing to overlook the human
               rights consequences or other unintended harms
               that follow, and Bolivia would be a prime
               example.
                    The U.S. has used its leverage to press
               for counter-narcotic objectives, but it has
               failed to use that same leverage to insist on
               strict compliance with human rights norms in
               the pursuit of those counter-narcotic goals.
               Bolivia shows also another distortion.  The
               U.S. threatened this impoverished nation with a
               cut-off of multilateral loans on which it
               depends if it did not meet a U.S. unilaterally
               imposed goal for coca eradication.
                    Acquiescing to this U.S. demand has meant
               the government has had to rely on state of
               siege powers and has severely strained the
               political fabric of this relatively new
               democracy.  Massive arrests, demonstrations,
               road blocks, armed confrontations, injury and
               even death have all been the foreseeable
               consequence of the government's effort to
               satisfy the U.S.
                    Drug trafficking in Latin America as
               elsewhere is accompanied by a host of social
               ills including corruption and violence.  Many
               analyses of drug trafficking's effects,
               however, and certainly most official statements
               failed to assess the extent to which certain
               adverse concomitants are inherent in the
               business of producing, distributing and
               consuming particular commodities such as

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               cocaine, and those which arise from the fact
               that such commercial activities have been made
               unlawful.
                    There is little doubt, for example, that
               the criminalization of certain drugs has had an
               enormous impact on their price.  The staggering
               revenues of the drug business are then used to
               corrupt public officials and law enforcement
               agents.  This would all be dramatically
               different, we believe, in a different legal
               regime for drugs.
                    Similarly, because the business is
               criminalized, it carries certain risks which
               participants try to reduce through a series of
               protective mechanisms which include violence
               and corruption.
                    It is reasonable to wonder that violence,
               the loss of life, the death and the
               destruction, would diminish under a different
               legal regime.
                    Human Rights Watch does not take a
               position on the appropriate legal system to
               respond to the public health issues posed by
               drugs.  We think it critical, however, for U.S.
               policy makers and the public and for this
               committee to include in their deliberations
               about drug policy an awareness of the human
               rights consequences of the current
               criminalization and prohibitionist approach.
                    As an organization whose mission is
               promoting increased respect for human rights,
               we think it legitimate and even imperative to
               explore drug control mechanisms that might
               reduce the harm to human rights that
               accompanies the current system while protecting
               ourselves and our children from those harms
               that may, in fact, flow from drugs.
                    I'd be glad to answer any questions you
               may have.
                    MR. DAVIS:  Thank you very much,
               Miss Fellner, for illuminating some of the
               consequences of drug prohibition that the
               committee has not previously considered in
               great detail.
                    Are there any questions from the
               committee?  Mr. Affler.
                    MR. AFFLER:  You briefly touched on the
               specific sort of threat or sanction that I
               believe was brought against Bolivia, a cut-off
               of multilateral loans.

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                    Is there a systematic sort of policy of
               particular sanctions that are threatened
               against various countries if they don't engage
               in these counter-drug activities or --
                    MS. FELLNER:  There is a process known as
               certification, and I don't know if somebody's
               here from Drug Strategies.  Mathea Falco was
               going to be, and there's an article actually in
               Foreign Affairs which she wrote on this.  Under
               law the State Department has to certify to
               Congress whether drug-producing or trafficking
               countries are cooperating satisfactorily with
               the United States in curtailing drugs.
                    If the United States -- if they are not
               certified as cooperating satisfactorily, then
               the United States by law is obliged to cut off
               all bilateral aid, except drug trafficking aid,
               and it is obliged to vote against them in
               multilateral foras such as the World Bank or
               Inter American Development Bank.  For countries
               such as Bolivia, which are dependent
               particularly on multilateral loans, this would
               be catastrophic.
                    As a high ranking Bolivian official told
               me, the U.S. ultimatum -- well, in Bolivia they
               got a certification.  It was called a national
               interest certification, by which the United
               States can say well, they're not cooperating,
               but it would be against our national interest
               to nonetheless cut the aid off.  The day after
               that decision was announced publicly the United
               States sent a secret letter to the Bolivian
               Government saying notwithstanding our national
               interest certification, we are telling you that
               if by June you do not comply with these three
               objectives that we've set out, we will treat
               you as though you had been decertified; so it
               was in effect the threat of decertification.
                    Oh, I started to say one of the highest
               ranking officials in Bolivia said look, we are
               between a rock and a hard place.  We can either
               commit economic suicide by foregoing the loans,
               which is trying to eradicate drugs, which for
               reasons I haven't talked about yet, the
               cultivation of coca is an enormously
               politically difficult subject to deal with in
               Bolivia.
                    MR. FROLICH:  Could you speak a little bit
               about the economic effects of the drug trade,
               separate from the political pressures that the

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               United States is putting on those countries?
                    MS. FELLNER:  I'm afraid I don't
               understand your question.  The economic
               effect -- the role drug trafficking has in the
               economies of these countries?  Is that what
               you're asking?
                    MR. FROLICH:  What is the effect, separate
               from the United States' political arm twisting,
               that is, the distortions that are occurring in
               these countries because of the drug trafficking
               itself?
                    MS. FELLNER:  The economic distortions?
                    MR. FROLICH:  The political --
                    MS. FELLNER:  The political distortions.
               I don't feel qualified to talk about the
               economic distortions.  I only sort of have a
               general sense.  The political distortions are
               great, particularly in Columbia, less so for
               various -- Columbia and Mexico, and I think
               increasingly in Brazil and Venezuela.
                    Those distortions -- primarily, again,
               it's interesting to think about them, if it
               were not criminalized.  What you have is a
               business, the production of these commodities
               which is enormously lucrative.  In this
               country, for example, when you want to
               influence public policy, you spend a lot of
               money to influence Congress.  It's not called
               bribery or corruption.  It's called lobbying.
               The drug traffickers also lobby.  They lobby
               through illegal bribes, and unquestionably
               those monies have an effect.  The additional
               risk, however, is when their bribes or their
               lobbying does not succeed.  Violence is the
               next step.
                    In Columbia you see a history of the
               government trying to negotiate, and sort of
               alternating with negotiations with the drug
               traffickers; then a sort of resumption of war.
               When the blood shed on both sides got
               sufficiently high, they'd go back to secret
               negotiations.  When those broke down, mostly
               because they would become public, then they'd
               go back to battling.
                    Other than the sort of lobby/bribery
               concerns, drug traffickers really haven't, I
               think it's fair to say, played that much of a
               politically distorting role except as provoking
               U.S. or other international pressures on the
               countries with one major exception, which is

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               unique to Columbia:  Which is that the drug
               traffickers are very politically conservative,
               and they have aligned themselves with right
               wing paramilitary forces.  They have right wing
               paramilitary forces in Columbia which have
               cooperated with the police and the armed forces
               in horrendous human rights violations.  They
               have underwritten, in other words, a lot of the
               killings, including massacres, which have
               stained Columbia with thousands of deaths over
               the last few years.  That doesn't arise so much
               from the drug trafficking nature of it as that
               the traffickers are a source of great new
               wealth who are traditionally violent, and
               Columbia is a historically very violent country
               and there's been this constellation of forces.
                    MR. DAVIS:  Thank you.  Any other
               questions from the panel?
                    MR. KNAPP:  Just very briefly, if you
               could comment on the amount of, I guess, what
               United States would call drug addiction in
               South America?  In which countries is that an
               issue that's being dealt with and how is it
               being dealt with?
                    MS. FELLNER:  Drug addiction has
               historically not been a major problem in any of
               the drug producing or drug transiting
               countries, although there have been drugs.
               Coca chewing, of course, has been a practice in
               Bolivia for time immemorial.  Most people do
               not consider coca chewing a drug addiction.  So
               let's leave that aside.
                    In many of the countries the primary
               substance abuse would either be alcohol or
               glue.  There is an increasing problem with glue
               sniffing, particularly among street children.
               It is difficult to get good data on how much
               consumption of cocaine or cocaine derivatives
               or Marijuana is increasing in part because it
               is being so politically manipulated.  It would
               seem that it is increasing somewhat.
                    Cocaine use is increasing in Brazil, for
               example.  The reason, when I say it's
               politically manipulated, the United States, I
               believe, made a decision that one of the ways
               in which they could get more cooperation from
               producing and transit countries in the war on
               drugs was to say -- well, those countries have
               traditionally said look, drugs are your
               problem.  You've got the demand.  You take care

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               of the demand, and the supply will dry up; that
               it's a demand driven business in the best
               capitalist system.  The United States is trying
               to say, no, no, no; it's all of our problem,
               and you have a consumption problem too.  So
               they are funding efforts for drug education and
               drug prevention and trying to stimulate a lot
               of concern in these countries.
                    When I was in Bolivia in July I was struck
               by all the TV ads that was the equivalent of
               "do you know where your children are tonight."
               This is in a country where the poverty rates
               are astonishing, but as best one can see, it is
               nowhere near the problem it is in this country.
                    The demand issue, most of the drugs
               produced there are shipped either to the United
               States or to Europe.
                    MR. DAVIS:  Thank you.  I think we have
               time for a couple of questions from the
               audience.
                    If you'd take the microphone please.
                    UNIDENTIFIED SPEAKER:  I wonder if you
               could apply your knowledge of international
               human rights law and standards to the U.S.
               domestic war on drugs.  There was a report
               issued earlier this year by the American
               Association of Advancement of Science that was
               given to the U.N. reviewing U.S. violations of
               human rights law.  In the criminal law section
               they talked about mandatory sentencing,
               forfeiture of property, the presumption against
               bail, the racially disproportionate impact of
               the drug laws, the lack of treatment
               availability in prisons and the erosion of
               civil liberties, particularly the Fourth
               Amendment as examples of U.S. violation of
               human rights law.
                    In the European context there was a report
               issued a couple of years ago which looked at it
               more from a health and safety perspective:
               Lack of treatment, lack of health services,
               denial of medicine to the seriously ill, and
               finally the example that hasn't been talked
               about in any of these reports is the denial of
               the syringes, and we have evidence that that
               will prevent the spread of H.I.V., AIDS,
               dramatic declines in the spread of that
               disease.  We still prohibit syringes.  Do these
               raise human rights issues in the United States?
                    MS. FELLNER:  All of the issues that you

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               have mentioned raise tremendous issues,
               constitutional issues.  They raise moral and
               ethical issues.  The problem is that
               international human rights in many instances,
               and in particular, dealing with the kinds of
               issues you've raised, is not as developed as we
               might like to see applied to these problems,
               and let me give you -- and Human Rights Watch,
               as an organization, derives its legitimacy and
               clout from taking consensus concerns and
               applying them to situations and holding
               governments up to public stigmatization by
               saying, for example, nobody condones torture;
               you deny that you torture, yet you are.
                    In the areas that you have mentioned there
               is much less consensus as to the relationship
               of international human rights treaties and
               standards to these.  And it's tough, and we are
               trying to figure out ways that we can apply it
               in ways that don't cheapen international
               standards by applying them beyond where they,
               in fact, are.
                    Take syringes.  There is various
               international standards, not only the right to
               life, but the right to health.  There does not
               seem to be yet a clear sense as to how those
               rights could be applied to say that one has the
               right to those standards -- to the syringes;
               that it makes good policy sense.  I personally
               believe there's little doubt.
                    Take mandatory sentencing.  There is
               little international standards which say that a
               country cannot determine what prison regimes or
               systems work best for its national objectives
               subject to due process, and due process does
               not traditionally mean that you can't limit in
               certain ways the discretion of judges in
               sentencing.  So you're stuck there.  You're
               stuck on a cruel and unusual punishment.  I
               could believe say that the -- the death penalty
               we've already conked out, which we opposed,
               which is also in the U.S. law, but to say that
               somebody could be sentenced to 15 or 20 years
               for possession of a small amount of cocaine, I
               think personally is cruel and unusual, among
               anything else, but there's nothing really in
               international law that would support that,
               unfortunately.
                    Search and seizure, the U.S. Fourth
               Amendment, before it was severely cut back by

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               decisions that mostly followed efforts to
               enforce drug laws in this country, was always
               far more advanced in international law.
               International law really hasn't addressed
               search and seizure very much, and fruit of the
               poisonous tree and all of that just doesn't
               have a place yet in international standards.
                    Lack of treatment again, racial impact.
               There is clearly adverse -- and this is
               something which we have actually looked into
               somewhat.  Human Rights Watch submitted a
               letter to the United States Government asking
               it in its submission to the Committee on the
               Elimination of Racial Discrimination to whom we
               have to submit a report now that the United
               States has ratified the Convention on the
               elimination of all forms of racial
               discrimination otherwise known as CERD.  We
               have urged the government to look at the
               question of the racial disparate impacts of the
               enforcement of drug laws.
                    The problem is going to be, for example,
               in issues like the difference between powder
               cocaine and crack cocaine and enforcement, is
               that the government can come up with plausible,
               rational sounding reasons to justify the
               disparate impact, which I doubt any sort of
               international fora would overturn.
                    That it's bad policy, again, I think the
               weight of the argument is that it's very bad
               policy.  It's difficult to say that it is
               unjustified racial discrimination as those
               norms are construed.  It's even hard under
               domestic United States law.
                    As you may know, every single case which
               is brought under U.S. race discrimination laws
               that tried to challenge those have failed.
                    MR. DAVIS:  Thank you.  I think we have
               time for one more question.
                    MS. FELLNER:  Let me just say I am
               somewhat frustrated as I try and do this with
               the problem of getting a handle on the problem
               of how we can apply international law to some
               of the problems that we see in this country and
               we are continuing to look into it.
                    For example, we're looking into the
               relationship between police -- corruption
               follows drug trafficking laws.  I mean one goes
               with the other.  Corruption also, as the
               Mullen Commission Report in New York City

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               pointed out, seems to be very tightly linked to
               brutality.  Police brutality is a human rights
               problem.
                    UNIDENTIFIED SPEAKER:  I just wanted to
               ask you about our culture and cultural
               attitudes towards drug and drug use and the
               Latin American countries, for instance.  Are we
               also trying to sort of impose a whole way of
               looking at drugs on them which is inconsistent
               with their own culture, which I imagine would
               make enforcement and everything else more
               difficult?  I mean I don't know.
                    MS. FELLNER:  I don't feel comfortable
               answering that.  I just don't know.
                    With the exception of Bolivia, and I'll
               give you one example referring to the coca
               chewing.
                    Coca leaves, which contain the alkaloids
               from which cocaine is derived, which are in
               cocaine, coca leaves have been chewed for a
               long time, thousands of years some believe,
               certainly increasing dramatically after the
               Spanish Conquest and the deliberate use of
               feeding of workers with coca leaves so they
               could survive the brutal conditions to which
               they were subjected.
                    The U.S. Government has been pushing very
               hard to have coca chewing itself stigmatized
               and, in fact, in the U.N. Convention of 1961
               coca itself is listed as one of the drugs which
               should be proscribed and which governments
               should commit themselves to opposing.
                    So in the area of coca leaf and whether or
               not there are beneficial uses of coca, as many
               believe, the United States is clearly pushing
               Andean countries, mostly Bolivia, and to some
               extent Peru, to not only not pursue the
               possibility of those uses, but to try and start
               treating coca chewing as drug addiction.
                    But as to the broader questions you asked,
               I really couldn't say.
                    MR. DAVIS:  Thank you.  I'm afraid we're
               going to have to cut off questioning.
                    MS. FELLNER:  Thank you very much.
                    MR. DAVIS:  Thank you, Miss Fellner.  It's
               been very helpful to the committee.
                    Our next speaker will be Kevin Zeese.
               Mr. Zeese is an attorney and advocate, and the
               President of Common Sense For Drug Policy,
               which is a non-profit educational organization

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               that's working to expand the discussions of
               alternatives to current drug policy.  Mr. Zeese
               has represented many individuals and advocated
               for reform of United States drug policy for
               more than ten years.
                    MR. ZEESE:  Thank you.  Last Thursday the
               Sentencing Project announced in a report that
               one in three African American men in their 20s
               was either incarcerated or in some other way
               under the supervision of the criminal justice
               system.  Two days before that the Wall Street
               Journal reported on numerous instances of
               apparent jury nullification because black
               jurors were refraining from adding to the
               already large numbers of African Americans
               behind bars.
                    A decade of enforcement of our inherently
               cruel and unthinking drug policy is bringing
               about the rending of the bonds that hold our
               society together.  The criminal law is losing
               respect, and it's not just the criminal law.
               Last week in Santa Clara County, California the
               Chief Judge announced they won't have time on
               their civil case docket until December of '96
               to hear a civil case.  So both our Civil Court
               system and our Criminal Court system is losing
               its ability to function.
                    Our drug laws fail to recognize that both
               legal and illegal drugs can be measured along a
               continuum of addictiveness and intoxication.
               Instead we pursue a mindless permissiveness
               regarding highly addictive drugs like tobacco
               and very intoxicating legal drugs like alcohol,
               hard alcohol, and cruelly persecute users of
               far less addictive drugs like Marijuana.
                    The inherent hypocrisy of our drug laws
               combined with the extreme enforcement of the
               war on drugs is developing into a loss of
               respect for our system of laws and jury
               nullification is just one example of that.
                    No one is pleased with the way current
               drug policy is working.  After spending over
               $100 billion in the last 12 years we have very
               little to show for our efforts.
                    Adolescent drug use is increasing for the
               last three years.  AIDS among people who use
               drugs is increasing, now accounting for 44% of
               new AIDS cases.  More people than ever are
               incarcerated and the largest building binge of
               prisons in our history can't keep up with the

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               demand.  Violent crime continues at
               unacceptably high rates.  Corruption of public
               officials from police to judges is too common.
               Organized crimes, gangs have flourished even
               after the leaders are arrested.  Drugs remain
               easily available throughout the United States.
                    Over $100 billion didn't buy a better and
               safer society.  No one is happy with the way
               things are.
                    As a parent, I'm concerned that my
               children are introduced to drugs at school.
               People who use drugs, they fear arrest.  They
               fear catching a disease.  People living in
               cities are increasingly afraid to use the
               cities.  They fear of becoming victims of
               crime.  Only criminals proffer from our current
               system.
                    If drug policy was working, there would be
               no need for change, no need for these hearings
               but, in fact, drug policy is broken.  It needs
               to be fixed.
                    What I want to try to do with my comments
               today is build on where you left off with your
               excellent report that you sent to all of us and
               try to talk about alternatives that we can
               start to consider for the 21st century.
                    When I'm talking about drug policy, I'm
               not only talking about illegal drugs such as
               Marijuana, cocaine and heroin, but legal ones
               as well.  Alcohol and tobacco are needed to be
               considered when we re-think drug policy today.
               Neither total prohibition of the former or
               virtual unregulated legalization of the latter
               has worked.
                    At the turn of the century we began to
               develop a regulatory approach to medical drugs.
               As laws and regulations have evolved, we have
               put in place purity controls, potency controls,
               labeling requirements, restrictions on
               advertising, restrictions on availability to
               prescription, access with over-the-counter
               availability.  In order to get a medical drug
               to the market there are now strict requirements
               for testing for safety and effectiveness.
                    As a result of these tests we've gotten
               much more control over medical drugs.  We have
               not applied any regulatory structure at all to
               non-medical use of drugs.  I'm not saying that
               the identical standards that we use for medical
               drugs are appropriate for non-medical drugs,

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               but there are things that we can develop that
               would be appropriate, regulatory strategies to
               regulate non-medical use of drugs.
                    My purpose is not to put forth the
               regulatory model; rather my goal is to present
               some new ideas to encourage others to begin
               thinking about new ways to control non-medical
               use of drugs.  My hope is to begin to bridge
               the gap between the polar extremes of
               unregulated legalization and total prohibition.
                    The goal of the drug policy would be
               three-fold.  First, minimize the harm to the
               individual and to society from drug use.
               Second, minimize the harm to society from the
               marketing of drugs, and third, allow
               individuals maximum individual choice in drug
               consumption.
                    Let me address each of these briefly.
               First, minimizing the harm to the individual
               and society from drug use.  When it comes to
               drug use, there are a variety of ways the
               individual and society can be harmed.
                    Let me review some of the major areas of
               concern to give you an idea how a regulatory
               approach could work to minimize harm.
                    The individual can be harmed by using a
               drug of unknown potency or unknown purity.  The
               individual can be harmed by the spread of
               disease, H.I.V., through shared needles or
               other injecting equipment.  The individual can
               also be harmed by the addictive nature of a
               drug.  Finally, the individual can be harmed by
               the drug that intoxicates so quickly or so
               strongly that he or she loses control over the
               effects of the drug.
                    Each of these individual harms can also
               have an indirect or direct negative effect on
               society.  These harms can all be minimized by
               regulatory structure that addresses the harms
               individually rather than a blanket prohibition
               or a blanket legalization approach.
                    Regarding potency and purity, these are
               issues that the regulatory structure is
               particularly good at addressing.  We've seen
               this with medical drugs as well with, to a
               lesser extent, alcohol.  Regarding the
               addictive nature of a drug, we've seen the
               capability of identifying the substance in
               various drugs which increases the chances of
               addiction.  For example with tobacco products,

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               we know nicotine is the addicting substance.
               If we address the issue of addiction
               specifically, we can design policies that
               reduce addiction.
                    With regard to tobacco products, for
               example, with lower levels of nicotine being
               made more available we can perhaps reduce
               addiction rates with tobacco.  We can make
               higher nicotine and tobacco products more
               restricted or tax them more heavily to make
               their use more discouraged.
                    Perhaps when the Federal Government moves
               forward on its plans to begin to treat tobacco
               products as drugs, we'll begin to develop a
               regulatory structure that could be applied to
               other non-medical drugs as well.  There is no
               reason why these same approaches cannot be
               applied to illegal drugs.  Regulatory controls
               can vary the levels of potency and addicting
               ingredients.  Policy can also be made to allow
               raw forms of drugs to be more available; for
               example, coca leaves instead of cocaine.  Just
               as an addiction can be regulated, so can any
               intoxicating effect be regulated:  By varying
               the degree of active ingredient.  I'm not
               saying that addiction is solely based on the
               ingredients in the drug.  It's a much more
               complicated phenomenon.  I'd say the drug is
               one part of a three-part grouping of drugs set
               in a setting:  The personality set of the
               individual using the drug, the setting the drug
               is used in, and one of the things we have to
               deal with as well as we move toward regulation
               is developing a culture whereby we understand
               the use of drugs.  We're doing that more and
               more with tobacco.  For example, all of us in
               this room could be sitting here drunk today
               legally right now, but none of us are.  And we
               don't do that because of law; we do that
               because of culture, and that also has to be
               built into the process of learning how to
               handle these drugs in our society.
                    Unfortunately, prohibition prevents the
               development of that culture.  We're not allowed
               to talk about how to use certain illegal drugs
               safely.  That's a taboo topic.  We would need
               to be able to talk about that openly so we can
               develop those kinds of cultures.
                    With regard to the less dangerous forms of
               drugs, the low addiction, low intoxication,

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               lower health risks, they can be made available
               even more easily while the more dangerous drugs
               can be more expensive, more difficult to
               acquire.  This can range from over-the-counter
               sales to adults, restrictive access to even
               more restrictive access through licensing
               schemes or higher tax rates.
                    Prohibition may still be appropriate for
               some substances.  I'm not saying we should
               legalize blanketly.  Some substances we may
               basically not be able to deal with in society
               and we may find that by legalizing or
               regulating the lesser forms of drugs there is
               no need to go any further and regulate the more
               dangerous forms of drugs.
                    Rather than thinking of drugs in black and
               white terms, all forms of currently legal drugs
               are good and all forms of currently illegal
               drugs are bad, we should begin to look at each
               drug by its effects on the individual and on
               the society.  Not only should we look at the
               drug, but also how the drug is being used.
                    For example, the greatest health threat,
               as I mentioned earlier, is the spread of H.I.V.
               Indeed, this is a health emergency.  We cannot
               wait.  We have to deal with this immediately.
               Drug use accounts for over 40 percent of new
               AIDS cases, not because of the drugs, but
               because of the laws surrounding how people can
               use the drugs.
                    The prohibition of equipment, particularly
               sterile syringes, is causing the spread of
               H.I.V. There were more than twice as many new
               AIDS cases among drug users in 1994 compared to
               deaths from the pharmacological effects of the
               drug, and that includes suicide related deaths
               and still twice as many more H.I.V. cases --
               new AIDS cases.
                    Among African Americans that ratio is
               seven to one.  Seven times as many African
               Americans developed AIDS in the last year
               compared to those who died from the
               pharmacological effects of the drug.  We need
               to act immediately to deal with this issue.
               The current policy, unfortunately, maximizes
               harm rather than minimizes harm by denying
               people the tools they need to avoid H.I.V.
               People who use drugs are not able to make
               choices.  If they were permitted to, they would
               make choices that made their life healthier.

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               Government should not stand in the way of
               people making those choices, as is being done
               with syringe exchange.
                    Let me talk now about the harm from the
               marketing of drugs.  The greatest harm from the
               marketing of drugs comes from their illegality.
               This results in vast, untaxed profits.
                    An illegal weed, Marijuana, which can be
               grown readily and inexpensively throughout the
               country, indoors and outdoors, sells for
               hundreds of dollars an ounce.  Illegal cocaine
               is many times more costly than pharmaceutical
               cocaine.  The black market prices result in
               huge underground profits which fuel the
               development of gangs and organized criminal
               enterprises at home and abroad, criminal
               markets which control their markets through
               violence and intimidation.  Even though we have
               succeeded in arresting many leaders of cartels,
               they continue to flourish with new leadership
               waiting in the wings.
                    By allowing the less dangerous forms of
               drugs to be made available in a regulated and
               controlled manner, by allowing more dangerous
               drugs to be made available through more
               restrictive access, for example, prescriptions
               or licensing schemes, and by prohibiting only
               the most dangerous forms of drugs, we undercut
               the potential profits from illegal drug sales.
               Just as the violence associated with the
               alcohol market abated when alcohol prohibition
               was repealed in 1933; in fact, it was followed
               by the most dramatic drop in homicides in U.S.
               history, the violence associated with the
               illegal drug trade will dissipate when the
               regulatory moral is put in place.
                    We do not have significant problems with
               violence and crime associated with alcohol and
               tobacco.  There are other issues to be dealt
               with there, and there may be good reasons to
               enact some additional regulations of these
               substances.
                    The most highly dangerous forms of tobacco
               may be too easily available.  The current
               policy has allowed Madison Avenue advertising
               techniques to glamorize these substances.
                    When we move toward regulatory approach,
               all drugs must be addressed, currently legal as
               well as illegal.
                    Finally, we talk about allowing maximum

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               choice in drug consumption.  American Liberty
               requires us to allow maximum individual choice
               in all areas of our life with minimum
               government intrusion.  This does not mean
               unlimited choice, but it does mean government
               should intrude as little as possible.
                    One area where choice can be limited is
               based on age.  We don't treat minors the same
               as we treat adults in many areas:  Voting,
               driving automobiles, owning a gun.  This should
               be true for drug use as well. Rapidly growing
               bodies, quickly developing minds, tremendous
               social pressures of the teenage years,
               immaturity of adolescents are all good reasons
               to limit the choice for minors when it comes to
               drugs.
                    For adults we can allow choice by
               regulating various forms of drugs differently,
               depending on their potential for addiction,
               speed and strength of intoxication and other
               health effects.  This limits government
               intrusion into the real harms that affect
               society.  The more dangerous the form of the
               drug, the more difficult and expensive it
               should be to acquire.  With relatively few of
               the most potent and fast acting drugs being
               prohibited, people would begin to be given more
               freedom of choice and society's interests would
               be protected.
                    In conclusion, the goal of drug policy
               should be a safer and healthier society which
               minimizes the harms caused by drug use but
               still allows the maximum choice to individuals.
               Society has a legitimate interest in
               controlling drugs.  The current approach to
               illegal drugs, prohibition, gives a false sense
               of control.  In reality, illegal drugs are out
               of control.  They are controlled by criminals
               and gangs, not by laws, not by consumers and
               not by markets.  My hope is that we will begin
               to approach drug use with all the tools we have
               available to regulate substances.  We no longer
               need to limit our choices to outright
               legalization or total prohibition.  That's like
               the 17th century, not the 21st century.  There
               are a wide range of choices available.  We need
               to consider them all.  I hope these hearings
               are a step toward developing a sensible, humane
               and just drug policy for the 21st century,
               policies which will protect our nation's

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               health, empty our jails of people ensnared by
               decades of bad public policy, and help build
               respect among all segments of our population
               for law enforcement and judicial systems.
                    Thank you.
                    MR. DAVIS:  Thank you, Mr. Zeese.  I'd
               like to open up the session for questions.  Any
               questions from the committee?  Mr. Affler.
                    MR. AFFLER:  In terms of your view that
               certain drugs should be I guess I'll use the
               term open to regulation rather than
               prohibition, would you envision the people
               involved in the distribution now, including
               some of the gangs that are violent, would you
               envision the idea of trying to bring them into
               a legal market on the theory that that would
               change their behavior, or would you envision
               having these drugs marketed say through the
               government or through some sort of third
               private entity?
                    MR. ZEESE:  My preference is to give
               maximum flexibility to state and local
               jurisdictions. Throughout the history of the
               United States, one of the things that makes a
               policy successful is we allow experimentation
               at the lower levels of government so we can see
               what works and what doesn't work.
                    So I think, just as we have with alcohol,
               after alcohol prohibition some states remained
               dry.  So I think first Federal involvement, to
               some degree, and allow states some maximum
               involvement as far as those kinds of things
               we're talking about:  Are they going to be
               state regulated stores; are they going to be
               private enterprises; how are you going to deal
               with people who are currently in the business;
               maybe it depends on their violent behavior or
               whatever other characteristics of their life
               are relevant.  But I would focus on maximum
               flexibility to allow experimentation, and then
               tie that along with research to see what works
               best.
                    MR. FROLICH:  That seems in some ways
               contradictory to your third point, which was
               giving the individual the choices as opposed to
               the state government.  After all, I mean that's
               still the government.  Although you were, I
               think, the first witness to be explicit about
               feeling that an individual had a right to
               choose whether or not to do drugs, and if so,

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               which drugs to choose; that's sort of an
               unstated assumption from a lot of the
               witnesses.
                    But could you speak a little bit about how
               giving the states flexibility to regulate would
               impact on this idea that individuals have some
               kind of choice, and also what's the basis of
               that idea?  Why should we believe that
               individuals have this choice to take or not
               take dangerous substances?
                    MR. ZEESE:  First you have to recognize
               people are making that choice today and the law
               has not stopped that choice from being made,
               and so in some part that question is a
               practical question in that you want to give
               people choice in the safest possible way to
               reduce the harm from the marketing and the use
               of the drug.  So that's part of the answer.
               But the other answer really is if you look at
               the basis of the founding of this country, on
               the federal constitution level, regarding
               individuals, maximum individual choice with
               limited government power.  Government powers
               were specifically given, specifically
               enunciated, and what was not given was left to
               the individual or to the states.
                    When you get to the states, you're talking
               about a different issue.  There you have state
               constitutions that vary, but on the national
               level, it was maximum individual choice and
               minimum government involvement.  So I think
               that's the most consistent choice with our
               constitutional history.  Unfortunately, I think
               as we've developed as a society over the last
               200 plus years, we've come to accept big
               government as controlling many of our choices,
               and we don't have -- that philosophy has kind
               of been lost.  Particularly in the drug field,
               you could almost call the drug warriors the
               counterrevolutionaries to the Thomas Jefferson
               and James Madison philosophy of government.
               Because they really came across with the ideas
               of much bigger government: government intruding
               in your life; searches without search warrants;
               now you can test people's urine, for example;
               that's a very invasive search.  According to
               the recent Supreme Court decisions, if the
               government has a special need to conduct the
               search, there is no need for a search warrant
               or even individualized suspicion.

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                    So we've gone through a kind of
               counterrevolution in the last 15 years
               particularly, but even over the last half of
               this century, where big government has become
               the key, where I think that's inconsistent with
               what this country really stands for and
               inconsistent with what makes this country a
               great experiment in human history.
                    MR. FROLICH:  You're not making an
               argument that there's a constitutional right to
               do that?
                    MR. ZEESE:  No, not specifically on drugs,
               but just generally that we have a limited
               government.  There is nothing in the
               constitution that says that government has the
               right to control what you put into your body.
               So it's not necessarily just drugs.  It's just
               saying we have individuals with maximum choice
               in this society and limited government.
                    MR. FROLICH:  Well, the constitution
               actually makes a distinction between Federal
               Government and State Government.
                    MR. ZEESE:  That's right.  I'm talking
               Federal Government.  I think the Federal
               Government does have, under the health and
               safety clause of the constitution, some ability
               to control choice, but I think that that choice
               needs to be limited.  And the way we limit it,
               by regulating purity and potency, I think that
               would be the appropriate limit for that kind of
               activity.
                    MR. DAVIS:  Thank you.
                    Any questions from anyone else on the
               panel?
                    MR. KNAPP:  Several speakers have referred
               to public opinion polls as one of the bases for
               distinguishing what happened with the end of
               the prohibition in the '30s with the current
               drug situation; the point being that the
               population as a whole was in favor of drinking
               and therefore prohibition was doomed to fail,
               and the public opinion polls today show that,
               depending on who you speak to, sometimes the
               world overwhelming, but certainly the point
               they're making, is that a majority of Americans
               are against drug use and therefore there is a
               specific national mood distinction, so to
               speak, between prohibition and the current
               debate that's going on now.
                    I'd just ask for you to comment on, first

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               of all, if you've looked into it, the validity
               of the polls, the types of questions that are
               being propounded, which of course is relevant
               to the answers that are given, and whether you
               have any better information as to whether there
               is a public mood one way or the other on the
               issue.
                    MR. ZEESE:  I've been involved in doing a
               number of polls nationally, and I've tried to
               explore that question, and I've asked the
               question about decriminalization or
               legalization in various ways, and generally you
               find about a third of the population supports
               some kind of reform towards
               legalization/decriminalization.  So it's still
               a significant majority that favors the drug
               war/prohibition approach.
                    I think one of the things to be careful of
               in our society is a tyranny of the majority.
               Just because the majority says that's their
               opinion does not mean they have the right to
               persecute people who use a different substance.
               Just because people who use alcohol say that
               it's okay for them to do that, but we're going
               to persecute the Marijuana user doesn't make it
               right.  So public opinion polls should not
               necessarily be the determining factor.
                    Of course, we are a democracy, so we have
               to educate the public more.  But I think in
               particular in the last 15 years there has not
               been really significant debate on this issue.
               There's been some discussion of legalization,
               but it's been minimal.  There's been some
               people who have come out in favor of reform,
               but it's been stifled, and I think it's really
               unfair to judge it at this stage without a real
               debate happening, and I appreciate the fact
               that you are holding these hearings to try to
               open debate because I think that's what's
               needed.  I think once people start to
               understand these drugs better, we'll develop
               better policies.
                    MR. DAVIS:  Thank you.  I think we have
               time for one or two questions from the floor.
                    Yes.  Would you grab a microphone, please?
                    UNIDENTIFIED SPEAKER:  Are you aware that
               the U.S. Controlled Substances Act allows
               states and localities to license practitioners
               to dispense controlled substances and puts no
               limit on the type of practice; that is it does

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               not limit it to medical practice and leaves up
               to the locality the definition of the practice
               involved?
                    MR. ZEESE:  I think a lot of people
               disagree with that interpretation.  I imagine
               if the local practitioner began to prescribe
               cocaine, heroin, and Marijuana for more than
               the -- even for some medical purposes, you'd
               start to see the Federal Government
               interpreting the law differently than you do.
                    UNIDENTIFIED SPEAKER:  That's not what I
               mean.  What I mean is not interpretation of
               medical practice, but that the Controlled
               Substances Act says a practitioner is a:  And
               they list various professional types:  Or such
               other person as licensed such as under the
               Gallagher Bill, for instance, by the state or
               locality to dispense controlled substances and
               apparently gives that state or locality the
               right to define that type of practice.  It
               doesn't limit it to medical practice.
                    MR. ZEESE:  I'd be interested in seeing
               how a test like that would work.  I know when
               Alaska had its Marijuana decriminalization law
               that allowed the right to grow, the Federal
               Government still was attempting to enforce
               cultivation laws.  So that was a state law that
               allowed one thing and federal law allowed
               another, and the Federal Government still
               enforced their laws.
                    MR. DAVIS:  Thank you, Mr. Zeese.  Thank
               you very much.  I'd like to take a ten-minute
               break right now so that our court reporter can
               rest her fingers, and see you all back, I hope,
               at 3:17 or so.
                              (Whereupon, there was a brief
                          recess was taken.)
                    MR. DAVIS:  Our next speaker is
               Mr. Jeffrey Merrill, the Vice-President and
               Director of the Division of Policy Research and
               Analysis of the Center on Addiction and
               Substance Abuse.  He's also a Visiting
               Professor at the Columbia University School of
               Public Health.  Mr. Merrill has had a long
               career advising policy makers on substance
               abuse and other public health issues,
               particularly from his vantage point at Robert
               Wood Johnson Foundation and other nonprofit
               organizations.
                    Thank you for being here, Mr. Merrill.

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                    MR. MERRILL:  Thank you.  After having
               listened to the previous couple of speakers, I
               feel a little bit like Thomas Paine swimming
               upstream, but I'm very happy that you invited
               me to talk.  Let me just try to be very brief
               in my comments and just raise a few issues that
               I think are relevant to the deliberations.
                    One of these issues is that we are talking
               about drugs and the legalization or other
               actions or regulation or different regulations
               dealing with drugs, and I think that sometimes
               we attribute a lot of the evils in our society
               to drugs and sometimes ignore other problems
               that may be equally as important and may
               actually already have been deregulated or
               legalized in some way, and I speak specifically
               about alcohol, and I just wanted to mention a
               couple of things related to that.
                    I raise this not because I'm going to
               argue that we ought to go back to prohibition,
               far from it, but just to point out that it may
               be a little simplistic or naive to assume that
               the legalization of drugs or some drugs would
               necessarily stop a series of problems in
               society per se, and I think we all know that
               and I think at times we don't point this out
               enough, that problems like birth defects, the
               adverse outcomes of pregnancy are, in fact,
               much more attributable to the use of alcohol
               than the use of drugs among pregnant women.
                    The question of Welfare, the debate that's
               going on right now in Washington over Welfare
               reform, there's this picture of a group of drug
               abusing women when, in fact, CASA's own
               research would indicate that alcohol appears to
               be a much more serious problem among this
               population than are drugs.  And in the whole
               area of crime, just in preparation for this, I
               just looked up a couple of statistics relating
               to people who are under the influence of
               alcohol or drugs at the time of committing a
               crime, and this is based upon a survey of
               inmates in state correctional facilities
               nationwide.
                    About 21 percent of all violent crimes are
               committed under the influence of alcohol while
               only about 12 percent of all violent crimes are
               committed under the influence of drugs.  As a
               causal factor a prisoner is six times more
               likely to have had a parent or guardian who

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               abused alcohol than a parent or guardian who
               abused drugs.  Again, this is not arguing for
               any radical action with respect to alcohol;
               rather, it's simply saying that as we start to
               attribute a great deal of the problems of crime
               let's say to the illegal nature of drugs, we
               ought to be aware that just by making something
               legal is not necessarily going to correct that
               problem.  I was interested and encouraged, by
               the way, and I want to come back to this later,
               that Mr. Zeese also pointed out some of the
               problems related to alcohol.
                    Let me just focus one more second on the
               issue of crime and the assumption that crime is
               related to the illegality of drugs.
                    I think we all probably know the
               statistics that about only 20 percent of crime
               is actually related to the possession or
               trafficking in drugs, and by the way, just to
               make them legal would not necessarily eliminate
               that 20 percent.
                    Probably many of you are aware of the
               Swedish experience where actually after in this
               case medicalizing heroin, actually the crime
               rate went up in the country and it had a lot to
               do with the distribution of these drugs which
               were now available to certain people, and other
               people to whom they were not available to.
                    You know, clearly some might argue, and
               Mr. Zeese argued this, that the price which is
               so high leads to crime.  I'm not quite sure
               that that's an empirical fact.  I think it's
               clearly a legitimate theory, but what it does
               create in my mind is a dilemma between the
               issue of if you legalize a given substance, do
               you make it affordable?  Because if you lower
               the price considerably, then the potential for
               abuse, and I think most people would agree with
               this, would go up, and the potential for
               children to get their hands on a substance
               that's lower cost would increase, or do you
               make it legal and keep the price high because
               in that case you don't necessarily address the
               issues of crime and the need to commit crimes
               to afford these substances.
                    Probably the most critical issue in the
               debate over legalization to me and really at
               the heart of this is what happens if you
               legalize drugs; does prevalence go up?  Does
               prevalence go down?  My opinion personally is

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               that certainly prevalence of use would not go
               down, and, in fact, I think it would go up, but
               that's my opinion and, again, there's no
               empirical basis one way or the other to say
               that it would not go up and it would not go up
               considerably.
                    And the question is are we ready to take
               that chance because I think we would all
               consider that to be a serious possibility.
                    The problem is and this is something that
               I was thinking about on the way over here.
               It's sort of like letting -- I'm not sure I
               know the correct metaphor for letting the tiger
               out of the bag.  Once you have legalized the
               substance, brought it into the mainstream
               economy, once you have made business not
               dependent, but certainly benefiting from that,
               it would be very hard to put I guess the
               toothpaste back in the tube I guess is the
               correct one.  It would be very hard to put that
               toothpaste back in the tube.  Politically,
               economically, it would become difficult.  So
               that, yes, I may be wrong, but if I'm right,
               it's going to be hard to reverse that.
                    CASA did a study of college students
               looking at substance abuse and when we started
               the study we were sure that the problem we
               would find is an increase in the use of
               Marijuana and hallucinogens among college
               students and that that would be what college
               administrators and others would tell us is the
               problem.  What we found out from that study
               from everybody we spoke to, and I mean
               everybody, said yeah, well, drugs is a little
               bit of a problem on our campus, but alcohol is
               the major concern we have.
                    Now, alcohol is actually illegal for most
               college students because most college students
               are under the age of 21, and by the way,
               younger college students tend to abuse alcohol
               more than older college students.  Does that
               argue that we should then legalize alcohol or
               make alcohol legal down to the age of 18?  I
               don't think that's a solution, and by the way,
               in talking to people, that's not what we found
               out.
                    Really, what this indicated to us was that
               even if you limit the availability of a
               substance legally to groups above a certain
               age, the sheer availability in society of that

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               substance gets much greater, and also there's a
               culture that surrounds that, and that the
               drinking among college students that were
               younger than the age of 21 was very much a
               function of that availability and, again, I can
               say that with some empirical evidence in that
               case.
                    I don't think any of us in this room would
               argue that we should legalize drugs for
               children, but let's just take that example and
               I'd be interested in discussing this further.
               Let's just take the example I just gave of
               college students and extend that to Marijuana.
               Let's assume we make Marijuana available, as
               Mr. Zeese said, based upon what states want to
               do and based upon what individuals feel is in
               their best interests, but certainly not make it
               legal for people under the age of 21 or 18, my
               feeling is, and this is a debatable point, but
               judging from the experience with alcohol in
               colleges that what you would see is a marked
               increase in the use of Marijuana among young
               kids.
                    And I'd just like to conclude with a
               couple of little facts pertaining to that
               because I think of all these issues, that's the
               one that really concerns me the most.
                    CASA did a study about a year ago looking
               at the relationship of use of various
               substances among children and their later use
               of other drugs, and we found a clear
               relationship between kids who smoked and drank
               earlier, but I'm not going to focus on that.
               What I'm going to focus on is the use of
               Marijuana among children.  We found that a
               child who had used Marijuana in general was
               85 -- used Marijuana regularly was 85 times
               more likely to go on to use cocaine than
               someone who had never tried a drug.
                    Now, some of the people who have
               criticized the study have, I think,
               misinterpreted that.  We're not looking at
               people who used cocaine and saying most of them
               used Marijuana.  We're looking at people who
               use Marijuana, whether or not they use cocaine.
               This is not like saying so what; everybody who
               uses Marijuana drank milk.  We are saying if
               you look at children who use Marijuana
               regularly, if you look at children who use
               Marijuana less regularly and so on, what you

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               find is a direct correlation between going on
               to other drugs, and that correlation is
               frighteningly it's 85 times more likely for a
               regular user.  We also found that the younger a
               child used Marijuana, the more likely they were
               to go on to use other drugs like cocaine.  A
               child less than 15 who had used Marijuana by
               the age of 15 was six times more likely to use
               other drugs than a child who was over the age
               of 17 before they use Marijuana, and
               physiologically there's a lot of evidence that
               between 12 and 18 as, your brain grows probably
               more significantly than at any other period in
               your life, the effect of it, the earlier in
               that cycle, the more it might be in terms of
               other behavior characteristics.  As I said
               also, regular Marijuana users were nine times
               more likely, not only than people who didn't
               use it at all, but that experimented with
               Marijuana.
                    The point is that some people -- I'm not
               one of them -- but some people might make
               legitimate arguments why Marijuana is not
               particularly harmful for adults and maybe we
               ought to consider legalizing it.  That's true,
               but I'm very concerned about the impact of such
               a move on the availability of that substance
               and therefore what occurs among children.
                    Let me just conclude by saying that one of
               the things that concerns me about this whole
               discussion, and I appreciate this hearing
               because I think it goes a long way to
               addressing this, is that we tend to divide into
               camps dichotomously and that in listening to
               Mr. Zeese's comments, I found probably more
               areas of agreement than conflict in what he
               said.
                    For example, I just want to point out a
               couple of things.  I think few people just want
               to simply decriminalize or legalize all
               substances.  I don't think there's much
               question about that.  I think in addition that
               all of us would agree that most of these
               substances have some serious and very harmful
               effects.  Most of us would agree that some
               forms of harm minimization are important in
               terms of other diseases like, for instance,
               AIDS, and I think most of us would also agree
               that mandatory sentencing and some of the more
               punitive things that are done today probably

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               are not the most appropriate solution to these
               problems.
                    So, therefore, there is an awful lot of
               agreement here and I just sort of ask this
               group as one of its recommendations really to
               try to find issues on which we really do agree.
               This is a serious problem, and as I said, I
               think there's lot of issues we agree on rather
               than try to polarize and dichotomize this issue
               by accentuating the differences, and I think in
               doing that we would go a long way in solving a
               serious problem.  Thank you.
                    MR. DAVIS:  Thank you, Mr. Merrill.
                    Let's start with Mr. Affler.
                    MR. AFFLER:  Do you have any comparative
               statistics in terms of now in terms of the age
               in which teenagers who start Marijuana use
               start as opposed to the age that they start
               drinking?
                    MR. MERRILL:  Yes.  There is.  Again, this
               is based on a theory, but empirically this is
               true, whether you think this is causation or
               not.  There is a clear progression usually
               starting with cigarettes and alcohol first and
               then moving on 18 months later, 18 to 3 years
               later to Marijuana for those people who do move
               on, and I'm not saying everybody does.
                    MR. AFFLER:  Is it your theory that were
               Marijuana decriminalized for adults that this
               progression would be different, that people
               would start off with Marijuana?
                    MR. MERRILL:  No, I'm not saying people
               would start off with Marijuana necessarily.
               I'm saying that the proportion of people who
               moved on from alcohol or cigarettes to
               Marijuana would rise significantly, and I think
               that's based simply upon the availability and
               also the fact that it's -- possibly that
               there's the culture surrounding it, that it's
               not as verboten for some people.
                    MR. AFFLER:  How unavailable is it now?
               In other words, at the age that people
               generally progress, is there an availability
               problem currently?
                    MR. MERRILL:  There's clearly not a
               tremendous availability problem in the sense
               that can you get it if you go out and look for
               it, yes, you can get it.  Sure.  But the point
               is it's different from having to sort of go to
               a neighborhood you might not want to go to,

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               having to associate with a group of kids you
               don't want to associate with as opposed to
               getting something which is just generally
               available in the population, and I think
               there's a very marked use of a people's use of
               a substance based upon that.  You know, it's
               like saying sure, you can get any drug you
               want, but I'm not sure I want to go to the
               south Bronx in the middle of the night to buy
               that drug.
                    MR. DAVIS:  Thank you.  Miss Breslow.
                    MS. BRESLOW:  I'd like to invite you down
               to my neighborhood in the East Village where
               outside of my daughter's pre-school we have to
               dodge the drug dealers standing on the corner
               to pick her up and hopefully, not dodge bullets
               one of these days.
                    MR. MERRILL:  Can I just comment on that
               because I'm certainly sympathetic and know that
               in some areas that the problem is clearly much
               worse than in others, but please don't
               necessarily generalize and make public policy
               based simply upon what happens in yours
               compared to where I live and where my children
               go to school, for example.
                    MS. BRESLOW:  Of course not, but this is
               what brought me to the realization that the
               drug war was not working and it was causing
               more harm.  That was one of the things.
                    MR. MERRILL:  Let me just ask you
               something.  There is a conclusion that you're
               reaching and I'm not sure it necessarily is
               logical from that, that if suddenly Marijuana
               were legal for adults -- and I assume you don't
               advocate making it available to children.  Is
               that correct?
                    MS. BRESLOW:  No.  That's correct.
                    MR. MERRILL:  -- would that necessarily
               stop the problems that you see in your
               neighborhood?
                    MS. BRESLOW:  No, but I think legalizing,
               as Mr. Zeese suggested, which I thought was
               excellent, on a continuum basis which also
               addresses your issue of the price of less
               potent drugs costing less and being more
               available and more potent drugs costing more
               and being less available, so, yes, I don't
               think that suddenly children who want to find
               Marijuana will not -- I think that they can get
               it now.  That's the crux of my comment to you.

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                    MR. MERRILL:  And I'm not denying that.
               That was also Mr. Affler's comment.  I'm saying
               there are both implicit and explicit barriers
               that may be intangible, but in my opinion, and
               you may disagree, have an impact on the
               availability to children right now.
                    I think as with alcohol, once you have
               made it legal, that availability goes up
               tremendously.
                    Why is it alcohol is illegal among
               children, but I can tell you alcohol is a much
               larger problem in this country among children
               than Marijuana is.
                    MS. BRESLOW:  I think that's because it's
               a much more dangerous drug, it seems to me.
                    MR. MERRILL:  It's more of a problem
               because it's more dangerous and more children
               use it because it's more dangerous?
                    MS. BRESLOW:  No.  I think it's more of a
               problem because it's more dangerous.
                    MR. MERRILL:  I'm saying the prevalence of
               use of alcohol among children is considerably
               higher than the use of Marijuana.  Are you
               saying that's because it's a more dangerous
               drug?
                    MS. BRESLOW:  No, of course not.  But the
               thing I wanted to point out with respect to
               your focus on availability was that now it's
               available without any sort of control or
               regulation or -- all drugs are, and no quality
               control and no real credible drug use
               education.  I mean "this is your brain on
               drugs," it made a laughing stock of drug
               education.  No kids believed that, and if there
               was government regulation, then there could be
               credible drug education which might create
               respect for drugs and how they should be used,
               which is impossible in the current scheme where
               drugs have to be demonized.  Could you address
               that?
                    MR. MERRILL:  I have.  I about 9/10 agree
               with you.  Where I think we part company is
               that, as Mr. Zeese said and you're concurring,
               and I would concur, is that drugs are out of
               control in this country right now, but getting
               from that point to saying that legalizing them
               is the answer, I can't make that jump, No. 1.
                    No. 2 is I absolutely agree with you that
               we do a very bad job of educating and we are
               about to do an even worse job of educating

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               because we're about to basically cut off a lot
               of the funds that were there for even
               successful programs, but again that doesn't
               necessarily mean that if you suddenly start
               regulating it, that the money is going to flow
               for education.  I don't believe that.
                    MS. BRESLOW:  No, but I'm saying it would
               be credible education as opposed to the
               propaganda that's being propounded now.
                    MR. MERRILL:  Let's take alcohol again as
               an example, and this is why I keep coming back
               to it.  Alcohol is a legal substance in
               America.  It's regulated in America, but we do
               just as lousy a job, by the way.  In fact, we
               do a worse job educating our children with
               respect to alcohol than we do with drugs.
                    MS. BRESLOW:  I think that's a problem I
               think we should address and I hope our
               committee will address.
                    MR. MERRILL:  I said we are in agreement.
               The difference is that doesn't necessarily lead
               me to believe that, ergo, we have to legalize
               drugs in order to reach a better point.  There
               are a lot of things that we could do in between
               I think that would be a lot more desirable that
               we could both agree on.  That's what I mean
               about why polarize the issue.  Let's decide on
               the things we agree on.  We probably agree on
               more than we disagree.
                    MS. BRESLOW:  So you're saying drugs now
               are out of control, but we shouldn't regulate
               them.  So how do we get them under control if
               we're not going to regulate?
                    MR. MERRILL:  The fact is they are out of
               control.  The fact that you legalize them in
               some shape or form doesn't necessarily mean you
               bring them into control.  Those don't follow.
                    So I'm saying let's take steps that are
               necessary to get a better handle on the drug
               situation, but that doesn't necessarily mean
               that legalizing them is an obvious conclusion
               of that.  I can't buy that.  I'm sorry.
                    MS. BRESLOW:  Compared to what we have now
               where there's no quality control whatsoever,
               and there's no government or anyone telling
               kids that they can't buy it, that they're
               freely made available to kids by dealers, where
               as if they were regulated, we could at least
               attempt to not get them into kids' hands and
               have credible education.  I just don't see how

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               you can say we should continue the current
               policy.
                    MR. MERRILL:  Because again, we agree we
               shouldn't continue the current policy.  The
               question is whether -- your notion of
               regulating includes some form of availability
               that mine wouldn't, and again, I come back to
               the alcohol example.  We have.  They are
               illegal.  We could do a better job of educating
               kids, and one of the things when I mentioned
               letting the tiger out of the bag was that once
               you make these economically profitable to
               main-stream business in America, it would be
               very hard -- I can tell you frankly that when
               we did our report on alcohol in college
               campuses, we became just the monster to the
               alcohol industry, and I was shocked at the
               power they had to deal with us, and I think
               once you do this for any other drug, you're
               going to run into that same set of economic
               interests which will make it even harder to
               regulate it, make it harder to do the kinds of
               things you want to do than it is now, as an
               illegal substance, where at least you don't
               have that lobby there sitting there telling you
               that "know when to say when."  Is that what you
               call drug education?
                    MS. BRESLOW:  I think that would be a
               better choice than the anarchy in the streets
               that are controlled by dealers who are carrying
               automatic weapons.  I think I would prefer
               dealing with business people who aren't armed,
               but anyway I feel like I should let it go so
               other people can speak.
                    MR. DAVIS:  One more question from the
               panel.  Then we'll open up to the floor.
               Mr. Frolich.
                    MR. FROLICH:  It's hard to know where to
               begin because I find so many of your
               assumptions to be assumptions that I don't
               agree with as well as your definitions.  We had
               a witness yesterday who was talking about
               exactly sort of this type of thing that you
               just said:  Drugs are out of control; that
               doesn't mean to legalize them.  From where I
               stand drugs are legal in the United States.
                    MR. MERRILL:  They are?
                    MR. FROLICH:  Of course they are.  There
               are drugs everywhere.
                    What this committee is looking at is what

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               to do about those drugs that are currently
               illegal and how to deal with the harms that are
               created by the criminalization of those
               particular drugs.
                    The United States is awash in drugs.  I
               agree that drugs are out of control and most of
               that lack of control has to do with legal
               drugs, not with illegal drugs.
                    MR. MERRILL:  I don't think that's what
               Miss Breslow meant, though.
                    MR. FROLICH:  I think that's one of the
               assumptions.  The availability thing.  The idea
               that you could, I guess with a straight face,
               say that in order to obtain drugs, you have to
               go to the south Bronx in the middle of the
               night and deal with some shady character under
               the overpasses just flies in the face of the
               everyday reality that every New Yorker knows is
               going on in the streets, but what the committee
               is looking at, I think, is to try and get some
               sense of what the trade-offs are between the
               dangers and harms that are created by the drugs
               and the use of drugs and those dangers and
               harms that are created by the criminalization
               of the particular drugs that are now
               criminalized, but that people insist on
               continuing to use, and so I just want to see if
               I can follow your logic.
                    You're saying that adults should not be
               allowed to use these particular drugs that are
               now illegal because if we legalize the drugs,
               the price will drop, the availability will
               increase, and that increased availability will
               automatically lead to increased use by kids,
               and that that end result is what we wish to
               avoid.  Is that a fair --
                    MR. MERRILL:  No, that's not correct.
               That's not what I said.
                    MR. FROLICH:  I'm sorry.
                    MR. MERRILL:  Let me respond to some of
               your comments, but let me just deal with that
               first.  First of all, I used the example of
               children as an example.  My whole logic wasn't
               simply based upon children.  I have
               considerable concern about many other
               individuals in our society who are over the age
               of 21 and the potential of having these drugs
               decriminalized.  So that I used that only as an
               example and I don't want it to be considered as
               my prima facie truth that this is the case.

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                    MR. FROLICH:  I am sorry.  So what are the
               harms?  Use what I've said up here.  We are
               examining the harms.  We have to balance the
               harms.  So what are the harms on the one side
               versus the harms on the other side?  We've had
               a series of speakers come in and testify as to
               the harms created by the criminalization of
               these drugs, prohibition, what people refer to
               as prohibition.  What you're talking about is
               the harms on the other side.  So, fill in that
               scale for me.
                    MR. MERRILL:  Wait a minute.  First of
               all, and I wasn't here so I can't vouch for
               what people have said.  What I have heard said
               today about the harms, in other words, the
               increased crime, I don't buy.  I don't believe
               that.  I think that is a false statement and I
               think facts would support my perspective on
               that, No. 1.  So, if that's the harm on this
               side, I don't feel I even have to balance that
               because that's not a legitimate problem as far
               as I'm concerned.
                    But let me ask you something:  Do you,
               personally, think that heroin is not a harmful
               substance?
                    You're asking what the harms are.  I think
               the harms -- let's just deal with physical harm
               for a minute.  Do you think heroin is a
               dangerous substance?
                    UNIDENTIFIED SPEAKER:  What dosage?  How
               often do you use it?
                    MR. MERRILL:  You can't say how often it's
               used.
                    MR. FROLICH:  Excuse me.  I don't want to
               keep going like first you have a discussion
               over there.  Now you're having a discussion
               over here.
                    MR. MERRILL:  He asked me a question.
                    MR. FROLICH:  Now, you're asking me a
               question.  If you can't or don't want to answer
               the question, that's fine, but I don't want to
               debate you as to whether or not I have a
               personal opinion of whether heroin is harmful.
               I'm just asking you what your opinion is as to
               what the harms are.
                    MR. MERRILL:  I said yes, I think it is a
               tremendous physical harm and I don't think the
               answer to that is to say well, gee, if you
               really don't take much heroin, you'll be fine.
               That's not an answer because heroin is a habit

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               forming drug.  Some people, and a very small
               group of people, yes, can regulate their use of
               heroin and take it recreationally for very
               limited periods, and by the way, it can be
               harmful even under those circumstances, but
               it's very hard to control use of a habit
               forming drug; so, yes, I think it is very
               harmful, very harmful.
                    If you ask me a question, you're looking
               at a balance.  I'm looking at this side.  Yes,
               I think it's physically a very harmful
               substance.
                    MR. DAVIS:  I'd like to sneak in a
               question using my prerogative as the chair.
               Mr. Merrill, you mentioned that you expected
               increased use.  If currently illegal drug use
               were decriminalized, you would expect some
               increased use and presumably exacerbation of
               problems of drug abuse and drug addiction, and
               I'm wondering if you could tell us whether you
               have any confidence in the techniques of drug
               treatment and programs of drug abuse prevention
               that might alleviate some of the additional
               harm that you would expect to come from
               decriminalization.
                    MR. MERRILL:  First of all, I said I,
               personally, would expect increased use, but I
               think that's debatable, increased use.  I can't
               prove that.  There's no empirical basis for
               that.
                    My answer to that is I think that drug
               treatment can be enormously effective.  I think
               that we, as a nation, have not devoted enough
               resources to the issue of drug treatment.  I am
               very frightened right now because I think with
               changes that are going to occur in Medicaid,
               with changes in the substance abuse block
               grant, with changes in the health care system
               much more toward managed care, that the
               potential for substance abuse treatment in our
               society is going to decline at a time when the
               problem seems to be increasing.
                    I can give you an example of something I
               was just looking at recently, that every year
               in the United States about 3 million people go
               into either alcohol or drug treatment programs.
               Every year about 450,000 successfully complete
               that treatment, and by that I mean they go
               through the whole cycle, and they're clean for
               at least a year.  Substance abuse is a chronic

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               disease, and I don't expect, as with diabetes
               or any other chronic disease, everybody to be
               better and asymptomatic for the rest of their
               life, but I think that treatment can go a long
               way in addressing the issue and repeated
               treatment go an even longer way.
                    But I think we do a lousy job in terms of
               funding it and we do a lousy job in terms of
               assessing people's needs and we do a lousy job
               in matching appropriate treatment to a person's
               needs.
                    MR. DAVIS:  Thank you.  Let's go to the
               floor.  Yes, here.
                    UNIDENTIFIED SPEAKER:  Yes, I have a
               question, but first I'd like to illustrate it a
               little bit.
                    When I was in junior high, I wanted to get
               high.  Well, when I went to the grocery
               store -- and I think a lot of kids in junior
               high wanted to try to do that too.  When I went
               to the grocery to buy beer, I couldn't get it;
               they just wouldn't sell it to me.  It was
               impossible.
                    Now, the second thing that happened is I
               found out that a number of people I knew knew
               people who sold pot, and they weren't dealers
               in overtown Miami.  They were my peers, my
               contemporaries, in the same grade I was in, and
               that's happening today.  You don't have to go
               buy it on the street.  You can buy it from
               friends.
                    So, I smoked pot for quite a while.  I
               really was never much of a drinker, and I tried
               other drugs because you want to try them.  I
               mean it's just nature, this idea that, you
               know, kids don't want to try different
               substances or that they're going to abstain
               from sex, if they say no, it's just sort of
               crazy, but the point I'm trying to make is I
               know friends who live in Holland, not
               Amsterdam, just in a little town, and their
               feeling is that the younger kids look at them,
               adults, and they smoke hash, as those old farts
               that, you know, those squares that still smoke
               hash.
                    The thing is I think there's this
               forbidden fruit that really fuels what
               adolescents do which seems to be a big concern
               of yours.
                    MR. DAVIS:  Do you have a question?

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                    UNIDENTIFIED SPEAKER:  Yes.  I'm wondering
               what you think about the whole forbidden fruit,
               if these things weren't so forbidden, do you
               think people, rebellious kids would be trying
               them?
                    MR. MERRILL:  I have a whole bunch of
               things to respond, but let me just answer your
               specific question.  I think yes, I think there
               is some segment of society that takes these
               substances because they're forbidden, because
               they're illegal, and I think that to some
               extent and, again, this is empirical -- I mean
               this is conjecture; I can't prove this and you
               can't prove it either, by the way, is that my
               conjecture would be that, yes, as a result of
               that there might be a certain segment of the
               population, which I don't think would be very
               big, that would not take these or might even
               stop taking them if they became more available,
               but I think in the long run what you'd see is
               the opposite occurring.  I think that the
               availability would increase and that as a
               result of that the use would increase overall.
                    Let me just make a comment to you because
               one of the things that concerns me, and this
               gets back to an earlier comment too, is that
               there is an old saying that "two anecdotes are
               not data," and there's also a danger in trying
               to extrapolate from what goes on in communities
               in New York, and I agree with the notion that
               to some extent our policies have to be based
               upon sort of local issues too; I'm not saying
               that necessarily leads me to agree to
               legalization, but there are some differences
               among communities, and your experience in
               New York may be totally different from what the
               experience is in Westchester or upstate New
               York, I mean, or where I live in New Jersey.
                    So, I don't want us to make policy by
               anecdote or by regional -- very regional facts
               which may be exactly what occurs in your
               neighborhood or your area, but it may not be
               the general situation.
                    MR. DAVIS:  Thank you.  We have another
               question here.
                    UNIDENTIFIED SPEAKER:  Thank you.  I want
               to thank you for the opportunity to see you
               face-to-face rather than reading what you have
               to say in the Times.  However, it is to the
               Times and certain more general information

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               since you're wanting not to extrapolate from
               the particular to the general.
                    A few months ago there was an issue which
               was primarily devoted to Marijuana in the New
               York Times Sunday Magazine section.  In that
               section it said that the Marijuana business was
               a $32 billion a year business and the tobacco
               industry was $45 billion.  So while there is a
               certain order of magnitude difference, it's
               about a third.  There are a number of things
               that feed into this.
                    The question is going to be don't you
               think that given what has happened to nicotine
               very recently in terms of being declared a drug
               and given that the DARE program, which is
               pretty much a failure at $700 million a year --
               don't you think that there is an opportunity at
               this particular time to do something that's a
               lot more current and a lot more rational
               connected with the tobacco and Marijuana
               industry which are, give or take a few billion
               dollars, comparable industries, and if we're
               going to approach -- I mean I'm asking you how,
               from your perspective, this might be
               accomplished.
                    If we're going to reeducate children about
               tobacco, if possible; we're going to limit
               their access; we're going to limit advertising,
               couldn't something more intelligent and more
               successful and more cost effective be done with
               regard to Marijuana, which is a comparable
               industry but doesn't kill as many people by a
               tremendous order of magnitude:  400-450,000
               deaths a year attributable to tobacco and no
               deaths attributable to Marijuana per se.
                    The question is what are we going to do
               about educating the young people toward both
               those products?
                    MR. MERRILL:  First of all, I agree
               entirely with you that the DARE program has
               been a failure, but that doesn't mean that all
               drug education programs have been failures, and
               I don't know how many of you read the article
               in the Journal of the American Medical
               Association a few months ago by Bill Botfin
               (phonetic) at Cornell, which really sort of
               demonstrated looking at 12,000 students that
               there are a variety of good drug education
               programs out there, and this is one of the
               things I would answer to your question, is that

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               one of the problems -- I see this with my own
               children -- is we provide them with a lot of
               scare tactics about drugs up to the 6th grade
               and then suddenly at the very point at which
               they're starting to be most vulnerable to drugs
               and other things we stop educating them.  To
               they and one of Botfin's findings was we need
               booster shots.  We need every year to reinforce
               this and I'm not talking about reinforcing
               scare messages.  I'm talking about reinforcing
               messages that kids believe as kids go through
               high school and the temptations increase.
                    So one thing I feel very strongly about is
               that we do a lousy job both on many of the
               education programs and now we're spending even
               less on that.
                    You know, one fact on that which people
               tend to forget, and I can't prove this, but if
               you look at Marijuana use between 1980 and
               1991, you see an unbelievable decrease in the
               amount of Marijuana use among kids.  And my
               argument would be that that was a period in
               which there were a variety of mechanisms, and I
               can't point to which one, drug education
               mechanisms, and even some of the partnership
               ads -- I agree the one about "this is what
               drugs do to your brain" was not one of their
               best jobs, but some of their ads did have --
               and there is evidence on this; they have done
               research on this in certain communities, not in
               New York City, but in other communities, that
               this has had an effect.  What happened is we
               got somewhat complacent and we stopped these.
               We cut back the funds.
                    The second thing I would say to what you
               said is that you and I and David Kesler all
               agree that nicotine is a drug, but there is a
               guy named Thomas Blyley (phonetic) of Virginia
               who happens to be the chairman of the Health
               and Environment Group or whatever it's called
               now, Committee, in the House that controls this
               that doesn't agree with us and I'll tell you
               there is a lot of bucks riding on this not
               being declared a drug.
                    UNIDENTIFIED SPEAKER:  Could you try to
               address the question a little more directly?
                    MR. MERRILL:  I thought I did.  You asked
               me what I would do.  I would expand drug
               education programs.  I would do a better job.
               I would declare nicotine a drug, but that's not

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               going to be what's going to happen.
                    MR. DAVIS:  We have time for only a couple
               more questions.  Over here.
                    UNIDENTIFIED SPEAKER:  Thank you.
                    You spoke earlier at length about young
               Marijuana users and the effects of Marijuana as
               a gateway drug.  Do you think Marijuana's
               illegality, therefore forcing young people to
               go to dealers who often do deal other drugs
               could actually be the reason why many young
               smokers go on to drugs like cocaine?
                    MR. MERRILL:  The answer to that is yes, I
               think that is a possibility, but again that
               doesn't necessarily lead me to the conclusion
               that I think you want me to be led to by that,
               but I think yes, that is certainly a
               possibility.  There is certainly a culture of
               drugs that surrounds that, yes.
                    MR. DAVIS:  Yes.
                    UNIDENTIFIED SPEAKER:  I should explain
               that I'm a bench scientist, and I have tried to
               keep close to the data and I thought it was
               very interesting that although you suggested to
               Miss Breslow that she should not expand from
               her views and her incidents and so forth into
               drug policy, but when you were asked the
               question by Mr. Affler, your statement was you
               don't have the statistics he requested, but you
               have a theory.  And I --
                    MR. MERRILL:  That's not what I said.
                    MR. DAVIS:  Could we have a question?
                    UNIDENTIFIED SPEAKER:  The point I'm
               trying to make is that there is a theory about
               gateway drugs.  The theory is based, and every
               epidemiologist will tell you, you can't do
               correlations and talk about causes, and the
               question I have is how is it that one can talk
               about both addiction and gateway with
               Marijuana.  There's no clear understanding in
               anything I've read, and especially from CASA,
               about what gateway means, and the correlation,
               when I asked Dr. Kleber yesterday, the question
               came back to me oh, but cancer, what's the
               statistics, but the point is that you don't do
               those kinds of statistics and draw causal
               relationships.
                    MR. MERRILL:  I'm only smiling because the
               first part of the answer I was going to give
               you was the same that Dr. Kleber gave you, so
               clearly I can't use that.

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                    UNIDENTIFIED SPEAKER:  That's why I gave
               it as a comment.
                    MR. MERRILL:  Let me just clarify that I
               know where he was leading.  Maybe he didn't
               make it clear.  If you have read the CASA
               report on gateway drugs, and I'd be happy to
               share the technical paper with you; there is a
               technical paper, we make it very clear in that
               paper that we draw no causality, that we can't
               do that.
                    UNIDENTIFIED SEPAKER:  Then what does
               gateway mean?
                    MR. MERRILL:  Let me finish.  It's just as
               you said.  A statistical correlation does not
               imply causality.  The point that Dr. Kleber was
               making yesterday and that I would emphasize too
               is that back in the 1950s when we first started
               looking at the issue of substance abuse,
               cigarette smoking and lung cancer, all we had
               then was the same epidemiologic evidence.  We
               had a four-fold, not a 322-fold as we have for
               looking at cigarettes, alcohol and Marijuana
               and other drugs.  We had a four-fold
               difference, and only for men.
                    Based upon that, because the statistical
               evidence suggested the possibility of
               causality, not that it suggested causality, we
               spent literally billions looking into that
               issue.  It's the same if we look at asbestos
               and lung cancer or we look at high cholesterol
               and heart disease.
                    The point is all we're saying about that
               is that there is a very strong correlation.
               It's worth us investing some money to find out
               whether there's some causal relationship, or
               people who believe in the common syndrome
               theory are correct in that they're just part of
               some other underlying problem, but whether you
               believe in the gateway theory or not, I think
               what you have to admit is that if you see a
               child who smokes, maybe not causally, but
               statistically, that child is at greater risk.
               If you see a child using Marijuana, that child
               is at greater risk statistically of going on to
               use other drugs, and maybe we can target some
               of our interventions to those children; that's
               all I'm saying, whether there's a causal
               relationship or not.
                    MR. DAVIS:  Thank you.  We have to move to
               another question.  Yes, sir.

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                    UNIDENTIFIED SPEAKER:  Well, by the way, I
               have to say there is at least one person in the
               room who would repeal without reference to age
               restriction.  That's me.  But you are not the
               first person to make reference to
               irreversibility of repeal or decriminalization
               or whatever.  What I'd like to know is if you
               couldn't legalize X and then recriminalize it,
               how are these materials criminalized in the
               first place?
                    MR. MERRILL:  Well, first of all, I'm
               blocking the name of the act, if I'm not
               mistaken a lot of the issues of the illegality
               of controlled substances goes back to what,
               1914.
                    UNIDENTIFIED SPEAKER:  The Harrison Act.
                    MR. MERRILL:  The Harrison Act, that's
               right.  In a very different era in American
               society than exists today, and by the way,
               there was no real industry surrounding drugs at
               the time the way there is surrounding say
               cigarettes today or the way there would be
               around drugs if you legalized them.
                    As I said, and again, we can debate this,
               but once you sort of let this tiger out, once
               you get major economic interests involved, it's
               not going to be possible.
                    If it turns out what I'm saying is right
               and what you're saying is wrong, it's not going
               to be possible to pass another Harrison act.
                    MR. DAVIS:  Mr. Knapp, do you have a
               question?
                    MR. KNAPP:  It might seem like a long time
               ago, but at the beginning of your presentation
               you had described the incidence of alcoholism
               on campuses where the legal drinking age is 21,
               and underage students were drinking presumably
               to excess.  There was, of course, a time when
               the legal drinking age, at least in New York
               State, was 18.  Are you aware of any studies
               that compare the two, and if you could comment
               on those?
                    MR. MERRILL:  One of the problems with
               this is that you can use statistics to sort of
               prove either point of view, that if you look at
               when it was 18 to 21, if you look at overall
               drinking, you actually find that there was a
               decrease in overall drinking.
                    MR. KNAPP:  When?
                    MR. MERRILL:  When you move the age up to

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               21.  If you look longitudinally, there was an
               overall decrease in the prevalence.  In other
               words, the number of people who drank, in fact,
               went down.
                    What happened though was two things.  One
               is that among those, and this is still a
               sizable amount, it's about half the population
               who drank, the frequency of drinking went up
               dramatically in that population.  So you can
               argue that yes, it had the effect of decreasing
               drinking.  You can argue that it had the effect
               of increasing the intensity of drinking.  It
               also, by the way, for reasons that probably
               have to do with other factors in society,
               during that same period there was a very marked
               increase in the intensity of drinking among
               women.  I don't know if that had anything to do
               with that, but again the data would include
               that.
                    MR. FROLICH:  And CASA has those studies
               available?
                    MR. MERRILL:  Yes.  Absolutely.
                    MR. DAVIS:  I'm afraid we have to cut off
               the questions.
                    Our next speaker is a career prosecutor in
               the Manhattan District Attorney's Office who is
               currently the Special Narcotics Prosecutor who
               with responsibility for significant narcotics
               prosecutions throughout the county of
               New York -- the City of New York, I'm sorry, a
               broader jurisdiction by many millions.  Thank
               you, Mr. Silberling.
                    MR. SILBERLING:  When I looked over the
               list of speakers, I noticed that there are very
               few people in law enforcement.  So I guess I
               bring a different perspective to the table not
               being a scientist or involved in the study of
               how drugs affect communities and people, but I
               think I bring a different perspective which is
               over 20 years as a prosecutor, over ten years
               dealing with the drug issue and crime in the
               city on a daily basis, experiencing the drug
               situation in New York and throughout the
               country, speaking to people who are involved in
               the enforcement field, not only in New York on
               the local level, but on the national level and
               in the international level.
                    I have a statement which I'll be happy to
               give if you think that's the best way to go or
               I could just give you some observations,

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               because based upon what I've seen I'm sure
               there's going to be plenty of questions for me
               and I see you're also running a little late.
               So I'll be more than happy to read the
               statement, but I'll leave that up to you.
                    MR. DAVIS:  The committee has your
               statement, and I believe copies have been left
               outside the door; so we'd be very glad to hear
               your observations.
                    MR. SILBERLING:  Okay.  Let me give you
               some observations which I guess for a
               prosecutor may sound strange or different, but
               I think most people in the field of law
               enforcement agree that law enforcement alone
               cannot solve the drug problem in this country
               let alone this city.  I obviously, as a
               prosecutor, disagree with the committee's
               conclusion that we should decriminalize drugs,
               and I feel very strongly about that, and I'm
               much more optimistic about the drug situation
               now than I was two years ago, and I'll be glad
               to go into that in a minute.
                    One of my observations is that we could be
               doing a lot more in this terrible situation
               that this country faces today, but we cannot do
               it on the local level.  The cities and states
               of this country do not have adequate resources
               to deal with the drug problem, and the only
               way, in my estimation, that we can make
               significant headway in this fight against
               drugs, and I don't use the term "War on Drugs"
               because in my estimation this country has never
               had a war on drugs.  My feeling is that when
               Nancy Reagan said "just say no," that was a
               hell of a lot better than "just say nothing,"
               which is what we've seen from the Clinton
               administration.  The present administration has
               taken no leadership on the drug issue.  The
               President has not addressed it.
                    There is inadequate resources provided to
               localities not only on law enforcement but on
               treatment, education and prevention, and my
               feeling is that the only way we can make
               headway in this country is to make drugs a
               national priority because it impacts us in so
               many ways.  Not only does it affect crime and
               the ability of people to walk the streets and
               for kids to go to school, but it affects
               business productivity, the birth of crack
               babies, spousal abuse, child abuse.  It affects

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               us in so many different ways that we have to
               make this a national priority.
                    When I think of what this country could do
               by galvanizing its resources such as what we
               did when we had the war in the Middle East a
               few years ago against Iraq.  When this country
               gets together, it can do amazing things, but
               the only way we can gain headway in this
               supposed effort against drugs is by galvanizing
               our resources, bringing everyone together and
               finding out what works.  What are the best
               methods that law enforcement can use to combat
               drugs.  What treatment programs work.  We don't
               know if there's a successful treatment program
               in Oregon that would work in New York because
               there are no conferences; there are no
               meetings; Washington hasn't taken any
               leadership.  We don't know what education or
               prevention programs really work because again
               there's nothing being disseminated to
               localities that will help us deal with this
               situation.
                    So, in my estimation we really need
               leadership coming from Washington to deal with
               this problem, but I also feel that throwing up
               our hands and saying well, there's no
               leadership from Washington.  We have an
               attractable problem that we've dealt with for
               decades upon decades, and we might as well now
               legalize drugs.  I don't think that's the
               answer.
                    And I've debated people on drug
               legalization.  I've heard Judge Sweet speak
               about drug legalization, and the one thing I've
               noticed when anyone talks about legalization is
               no one can present an adequate plan, at least
               in my estimation, of how they would implement
               drug legalization, and the theory that you're
               going to decrease usage and put less people in
               prison and there will be less crime, I disagree
               with it.  Because if you think about
               legalization, do you make all drugs legal:
               Marijuana, crack, cocaine, heroin?  Do you make
               age restraints?  Do you say anyone under the
               age of 18 can't obtain drugs legally?
                    Because the bottom line is that once you
               put restrictions on age or drugs or dosage, you
               have created the very thing that people who
               want legalization tried to prevent, which is a
               black market.

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                    Restrictions on drugs lead to black
               markets because those kids are going to get
               their drugs someplace, and if they can't get it
               legally, they're going to get it illegally.
                    I've also heard a great many people say
               well, look what's happened overseas, and they
               point to Holland and England and Amsterdam and
               Switzerland.  Well, those programs, if you look
               at them long range, have all failed.  I mean
               there are over 150,000 heroin addicts in
               England.  I have spoken to people from
               Scotland Yard who have told me that the drug
               problem there is getting worse.
                    In Holland since the coffee shops have
               been allowed to proliferate there has been a
               250% increase in use of Marijuana.  We know the
               experiments with the park in Switzerland has
               failed.  So I don't see looking overseas, that
               that provides any guidance for us in terms of
               the effects that legalization would have here.
                    Now, in terms of law enforcement, what
               gains or what losses have we made?  Well, I
               spoke a few minutes ago about being pessimistic
               about the drug situation until the last year or
               two, but all the data that I've seen, which has
               shown me at least that casual drug use,
               especially cocaine, is down considerably in the
               last decade.  Marijuana use is down
               considerably.  Surveys from New Jersey and
               California show that adolescents won't use
               Marijuana because of the fear; 60, 70% of the
               adolescents fear the legal system and that is a
               deterrent against them using Marijuana.
                    So, I think that the fear of law
               enforcement does act as a deterrent against
               people experimenting with drugs, and I think
               law enforcement has gotten smarter in terms of
               dealing with people who use drugs.
                    We have realized the value of education
               and treatment and prevention, and the
               District Attorneys in this city have gotten
               involved with instituting what we call DETAP
               programs where we have taken individuals who
               have committed crimes because of the fact that
               they have used drugs, and for that reason
               alone, and have put them into treatment
               programs, and we have used the deterrence of
               the criminal justice system to get them
               treatment where in other instances they would
               not seek treatment.  In fact, it has been law

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               enforcement that has forced these people to go
               into treatment programs and to stay there 12 to
               18 months and get off the use of cocaine.
                    In my office not only have we put
               second-time offenders, taken them out of state
               prison and put them in these treatment
               programs, we have a program for teenagers in
               which they get education, in which they are
               getting drug counseling.  We have a program for
               pregnant, addicted mothers which has been very
               gratifying and very successful in which we have
               taken mothers who have small children or are
               pregnant and have used cocaine and have sold
               cocaine because of the fact that they are
               addicted to drugs and we've put them into
               treatment rather than putting them into prison
               and, in fact, they have graduated from this
               program.  They have custody of their children,
               and they are working and they're productive,
               and there are programs going on like
               that throughout the city and through other
               states.  So I think law enforcement has become
               much more intelligent and knowledgeable about
               the drug problem.  We are aware of the need to
               put violent people in prisons, and we are
               trying to take those people who are drug
               addicts and committing crimes because of their
               drug use, taking them out of the prison system
               and trying to get them rehabilitated, and I
               think in that effort we have been fairly
               successful.
                    Looking long range in terms of the Cali
               Cartel and drugs coming into this city and this
               country, we have become more knowledgeable and
               insightful about the way they operate than we
               ever have.  You've seen the arrests of the
               leaders of the cartel in Columbia.  The price
               of cocaine as a result of that has gone up 50%
               here in New York in the last six months.  Large
               shipments of cocaine are harder to come by.  It
               is somewhat harder to get the drug on the
               street, but there are other, I think, positive
               things.  The use of crack, which led to a
               tremendous rise in crime in the mid-1980s and
               '90s, has stabilized.  We are seeing less turf
               wars.  We're seeing less violence, and I think
               the fact that the crime rate in New York is
               down is due in part to the fact that crack has
               stabilized and many of these drug gangs have
               been taken out of business.

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                    Yes, the streets of New York are still, in
               my estimation, unsafe, but I think the
               situation is a lot better than it was a few
               years ago, and I think it will continue to get
               better; and I think the fact that there is an
               acknowledgement about the need for treatment,
               for rehabilitation and education really says
               something about law enforcement, but I think
               it's also unfortunate that law enforcement had
               to take the lead in these programs.  The
               leadership to do this shouldn't come from
               prosecutors.  It shouldn't come from New York
               City or New York State.  It should come from
               Washington, and until Washington takes the lead
               in this area, we are not going to make
               significant and substantial strides against
               fighting drugs in this country.  Thank you.
                    MR. DAVIS:  Thank you, Mr. Silberling.  I
               would like to exercise the prerogative of the
               chair again and start with some questions.
                    The committee has considered the DETAP
               program and it raises an interesting and
               potentially troubling question for us, and I
               wonder if you're aware if there are any studies
               assessing whether the success rate of
               Defendants in the DETAP program is
               significantly different from the success rate
               of in-treatment of addicts who voluntarily
               enter drug treatment.
                    MR. SILBERLING:  It's hard to answer that
               question only because the DETAP programs are so
               new.  They've been in effect -- we, I think,
               started ours in 1992 or 1993.  I believe 70% of
               the people that have gone into our DETAP
               programs are still there.  So in that respect I
               think it is more successful than people who
               voluntarily go into programs, because my
               understanding is only about 25 percent of those
               people actually graduate from those programs
               and stay drug free for more than one year.  So
               I think it's been successful.
                    But I think we've gone into other areas,
               and I've mentioned those, about pregnant women,
               which I think has been just very successful,
               and that's the best I can answer your question
               on that.
                    MR. DAVIS:  Thanks.  I have one other
               quick question.  You mentioned that you would
               expect that any restrictions placed on
               generally legalized drugs would create a black

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               market.  For instance, age limits world create
               a black market, and I wonder, in your
               experience as a prosecutor, have you seen that
               there's a significant black market in alcohol
               for people who are under age, and what level of
               arrests or prosecutions have you seen?
                    MR. SILBERLING:  I don't see levels of
               arrests because that's not my jurisdiction, but
               I could tell you from my own personal
               experience, having two children, one age 12 and
               one age 17.  My daughter has told me she goes
               to parties and she says Dad, there are parents
               there.  There are kegs of beer there.  She says
               if you want to get a drink, there's no
               restriction.  You can get a drink, and kids
               have keg parties in which they sell alcohol.
                    So, alcohol, it's available and the age
               restriction has not stopped them from getting
               it, and I think that clearly would be the case
               with drugs.
                    MR. DAVIS:  Mr. Frolich has a question.
                    MR. FROLICH:  I would like to follow-up on
               that.  In your paper, the statement you gave
               us, what you said about the black market was
               that any restrictions at all would lead to a
               new black market and that that new black market
               would not significantly impact the congestion
               in the criminal justice system.
                    So, following up on the previous question,
               if that would be true for the drugs that are
               currently illegal, why isn't that true for
               alcohol and tobacco or is it true?  Is it true
               that the black market in alcohol and tobacco
               for those under 21 is jamming up our courts in
               the same way that the black market in the
               currently illegallized drugs is because that's
               what you're saying here?
                    MR. SILBERLING:  I think it's different.
               There's no attempt by law enforcement to go
               after kids who drink or use alcohol.  I mean
               the resources of the criminal justice system
               are so limited.  I'll be quite honest with you.
               We don't really go out of our way to prosecute
               Marijuana cases.  We go after heroin and
               cocaine cases.  Contrary to popular belief, we
               rarely prosecute users.  Of course if someone
               is caught with possession of drugs, they're
               going to be prosecuted, but the main attempt is
               to go after those people who sell drugs.
                    I tried to answer that as best as I can.

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                    MR. DAVIS:  Mr. Affler.
                    MR. AFFLER:  Just to follow-up on what you
               were saying, that there's statistical evidence
               that drug use has gone down considerably I
               guess in the last decade.
                    MR. SILBERLING:  Yes.
                    MR. AFFLER:  Have you followed statistics
               which would indicate other types of legal
               substances, including tobacco and alcohol use,
               seems to have gone down, and also even other
               types of consumption.  It's been a health
               conscious decade, consumption even of red meat,
               switches from red wine to white wine.
                    MR. SILBERLING:  I've switched from white
               to red.  My cholesterol is high.
                    MR. AFFLER:  Not to make light of it, and
               I don't know the statistical correlation, when
               you're saying that sort of Marijuana or hard
               drug use has gone down, is that to a greater
               extent than let's just use as a trail sign,
               tobacco and alcohol, over the same period.
                    MR. SILBERLING:  To be honest, I haven't
               looked at statistics or spoken to people about
               alcohol or tobacco, but when I read the CASA
               study I have to tell you, I was stunned to see
               the decrease in the casual use of cocaine.  Of
               course, Marijuana usage is supposedly increased
               and the number of students using it, but I was
               shocked by the reduction in casual use, casual
               users of cocaine, and marijuana.  Hard-core use
               we know is pretty stable, and that's the target
               I think we really have to try to reach.  Those
               are the people, the hard-core users, who are
               committing most of the crimes in the city, and
               they're the hardest people to reach.  If we do
               something, if we could reach those people, I
               think we could make a dramatic effect on the
               quality of life in the city, and it seems to me
               the best way to get those people is actually
               through the criminal justice system.
                    But I just want to say one thing, and,
               again, this may sound strange as a prosecutor,
               but I've also been a teacher, and that is, to
               me the most important thing is education.  Law
               enforcement alone can do part of this job, but
               if we could reach these kids at an early stage,
               I mean from kindergarten on, and get the
               message into their heads about the dangers of
               drugs, we would make such a substantial stride
               with the drug problem in this country I think

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               it would be remarkable, but I think to do that,
               again, and I have to go back to this, we need
               leadership from Washington, and I just don't
               see it.
                    MR. AFFLER:  One more clarifying question.
                    Just as someone who works in the criminal
               justice system and knows that, for example in
               New York County, prosecutions can be brought by
               either the Special Prosecutor's Office or the
               Manhattan D.A., when you're saying we go after
               primarily users, are you referring to
               prosecutors in general --
                    MR. MERRILL:  Yes.
                    MR. AFFLER:  -- or just in the Special
               Prosecutor's Office?
                    MR. MERRILL:  No.
                    Most of the cases that come in, the low
               level street crime cases that come into the
               criminal justice system are done as a result of
               undercover buys by the narcotics division of
               the New York City Police Department, and I
               remember a few years ago when they started this
               TNT after, you may recall, Officer Byrne was
               shot, and they tripled the size of the
               narcotics department, and they sent cops out in
               the street with premarked buy money to make
               buys of drugs, and I remember one officer came
               in and he said I was supposed to go out and buy
               drugs six or seven blocks from the precinct.
               He said, but I never got further than two
               blocks away because there were people hawking
               drugs.  He says, buying drugs in this city was
               as easy as taking an apple off a tree.  You
               could get it wherever you want it, and those
               are basically the people that come into the
               system.
                    Those who are arrested by uniformed police
               during the stop of a car or on a search,
               they're not going to be arrested for sale.
               They are going to be arrested for possession,
               but most of the people who come in and the
               people who go to state prison in this state are
               those people who sell drugs.
                    And if I could add just one other point,
               because I think that the public really doesn't
               understand this either, we talk about the
               streets and I get this little statement from
               the heart I guess.  We talk about the streets
               in the city and the fact that we put all these
               drug dealers in jail in state prison.  Most of

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               these people who go to state prison finally
               have been arrested time and time again for the
               sale of drugs because the first time they're
               convicted for the sale of small quantities of
               cocaine or heroin, in 99% of those cases,
               they're given probation.  They may get a taste
               of city jail, but no one goes to state prison.
               It is only after time and time again of being
               arrested and indicted and convicted as
               predicate felons are they going to state
               prison, and those people who live in this city
               who call and write letters, and we get them all
               the time, saying can't you do anything?  I see
               the same guy; he is arrested and two hours
               later he's back on that street corner selling
               drugs, and in my estimation that is one of the
               main reasons why the quality of life in this
               city has declined and why people are leaving
               this city.  Because they are so frustrated by
               the fact that they can't get into their
               building because there are drug dealers sitting
               there, and the fact that they can't walk their
               kids to school or take them to a park because
               people are selling cocaine, and unless these
               people are taken off the streets and either put
               in jail or put in rehab, we're not going to
               improve the quality of life in this city.
                    MR. AFFLER:  Would your office then favor
               the repeal of the felony possession in the 5th
               Degree Statute, which --
                    MR. SILBERLING:  The crack statute you
               mean?
                    MR. AFFLER:  Yes.  I guess it would be
               called the so-called crack statute, which if
               someone has possession of 500 milligrams or
               more they become a felon, and generally, if
               this happens a second time, a second felon,
               which unless the D.A. consents, which is not
               always done, they would be subject to a
               mandatory state prison sentence.
                    MR. SILBERLING:  No, I wouldn't, and
               seeing that there are no criminals in this
               room, I can tell you that most of the people
               who are arrested on the crack statute, most of
               those cases are reduced to misdemeanors.  They
               are prosecuted as misdemeanors.  Those
               individuals who have large quantities, well
               over 500 milligrams, they, in fact, depending
               on their record, may be indicted and prosecuted
               and sent to state prison.

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                    So, no, and I think the other thing we
               have to realize is that there's such extensive
               plea bargaining when it comes to drug cases,
               and that's the main reason why so many people
               don't go to state prison until they've been
               convicted a number of times.
                    MR. AFFLER:  There was a Court of Appeals
               decision, People V Ryan, about two years ago in
               which they created a nullage of the weight
               defense, which would have meant in borderline
               cases, close to 500 milligrams, they probably
               would have gotten off.  I'm not sure if your
               office opposed to it.  I believe most of the
               prosecutor opposed it, and it was repealed.
                    MR. SILBERLING:  Yes, we did.
                    MR. AFFLER:  Could you just explain the
               reasoning behind that?
                    MR. SILBERLING:  Between the court's
               decision?
                    MR. AFFLER:  No, why your office and other
               prosecutors' offices opposed amending the law
               to repeal the so-called Ryan defense?
                    MR. SILBERLING:  The Ryan defense was
               hurting us in many cases.  What was happening,
               we had cases, for example, where if you sell
               more than 2 ounces of cocaine, it's an
               A felony.  We had judges, for example, where a
               Defendant was found with 8, 10, 12 ounces, who
               said how did the Defendant know that what he
               had was more than 2 ounces.  It was impossible
               to prove those cases, and as a result, hundreds
               of cases were being dismissed from the system,
               and in many cases the defendants who were large
               scale sellers of drugs were walking out of
               court laughing because they knew exactly what
               they sell.  When somebody sells drugs they know
               the quantity of drugs.
                    We thought it was a terrible decision.
               The legislature agreed with us and repealed it,
               and that's the best answer I can give you on
               that.
                    MR. DAVIS:  Mr. Knapp.
                    MR. KNAPP:  Just one question.  Does your
               office have a policy, because this committee
               has heard testimony and has reviewed some of
               the research with respect to the sterile
               hypodermic needle policy or issue I should say,
               does your office have a particular policy on
               the sterile needle issue?
                    MR. SILBERLING:  At first we were against

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               it, but now we're more enlightened.  I have
               read where it has worked, and I think that if
               it can be done under the appropriate setting
               where it's properly monitored and if, in fact,
               as the studies show, it will have a significant
               impact on the reduction of AIDS, then I am not
               opposed to it, and that's the best I can answer
               that question.
                    MR. DAVIS:  Thank you.  Miss Breslow.
                    MS. BRESLOW:  I'll try not to make a
               speech, but I just have a few things to
               mention.  I, personally, think the committee
               wholeheartedly agrees that we need much better
               drug education and we need research on
               treatment.  I guess we don't agree that the
               drug war is preventing a lot of research into
               drugs because they're so demonized.  We heard
               testimony yesterday about medical Marijuana
               research that has been approved by the F.D.A.
               that can't go forward because the D.E.A. won't
               allow the researchers to import legal Marijuana
               from Holland or get it elsewhere.  Anyway, so I
               think there's a lot of things we agree on and
               there's some things we disagree on.
                    MR. SILBERLING:  Actually, I think we
               disagreed on a lot more initially than we've
               agreed to, but okay.
                    MS. BRESLOW:  Some things that you said
               really struck me.  One, that your office
               doesn't really go after Marijuana, and
               presumably law enforcement as a whole, really
               is focusing on the more --
                    MR. SILBERLING:  It's not the focus.
               Obviously, if there is a Marijuana case, it
               will be treated, but it will not be treated to
               the same extent obviously that cocaine or
               heroin would be.
                    MS. BRESLOW:  But the fact that maybe law
               enforcement isn't going after Marijuana drug
               crime as much, that, and also your remark that
               drugs are available everywhere, that, plus your
               remark which I think I could quote, those kids
               if they can't get their drugs legally, they'll
               get them illegally, taking all those things
               together, it seems to me that keeping at least
               Marijuana illegal is making kids get it
               illegally and making them come into contact
               with a criminal element that they probably
               wouldn't otherwise be involved in in any way,
               and I don't see the logic of that from a law

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               enforcement or any other perspective.  Can you
               comment on that?
                    MR. SILBERLING:  Let me address the first
               part where you say about Marijuana.  Resources
               in criminal justice are so limited we all have
               to make choices.  It's the same choice as
               deciding should A go to prison or should B go
               to prison.  The problems caused by crack in
               particular, cocaine and heroin have sort of
               told us in which direction we have to go, and
               the impact of crack especially, which is so
               harmful, has at least indicated not only to
               myself but I think to the D.E.A., to other
               prosecutors, to the police department that
               we're going to center in on cocaine and heroin,
               but we have done Marijuana cases.  We've done
               some very big Marijuana cases.  So I think that
               part of the question with limited resources is
               that's where the road has taken us, and that's
               I guess the choice we had to make is to channel
               our resources in that direction.
                    I'm opposed to legalization of Marijuana,
               and I think one of the reasons is that, and I'm
               sure many people will disagree with me, I think
               it is a gateway drug.  I think that based on
               that CASA study which shows that kids who use
               Marijuana are much more likely to use cocaine
               and other substances is another reason not to
               legalize it.  Can it be obtained?  Sure, any
               drug in the city can be obtained if you go to
               the right places to buy it, but I've also said
               that, and to me it was a sad statement to make,
               that with two kids of my own, and I heard your
               statement before that you have a young child,
               that unfortunately, we're not going to rid
               drugs or this country of drugs or this city of
               drugs during our generation or the generation
               of our kids.  Hopefully, we can make a
               significant dent so that the generation of our
               grandchildren will live in a city that is drug
               free and mostly crime free, but to start on
               this road to reduce drugs, we have to do
               something now, and we have to do something with
               leadership coming from Washington, and I don't
               think that opening the doors and saying "well,
               we failed so far, let's legalize this" is the
               answer.  I just don't see it, and I haven't
               seen anyone come up with a plan which makes any
               logical sense which would allow drugs to be
               legalized and implemented.  I just haven't seen

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               it.  I mean I've heard a lot of discussions
               about it, but I haven't heard anyone, including
               Judge Sweet, come up with any plan that will
               work.
                    MR. DAVIS:  We'd like to take some
               questions from the audience.  Thank you.
                    UNIDENTIFIED SPEAKER:  I'd like to
               acknowledge the immense difficulty of your job
               and thank you for your testimony today.
                    MR. SILBERLING:  Thank you.
                    UNIDENTIFIED SEPAKER:  Did I understand
               under age drinking, for example, that it is not
               an enforcement or prosecution priority of your
               department or --
                    MR. SILBERLING:  I don't have jurisdiction
               over alcohol or drinking.  My jurisdiction is
               narcotics.
                    UNIDENTIFIED SPEAKER:  I was just
               wondering at what point in the criminal justice
               system attention, if there is much, is put on
               under age drinking and how that priority is
               mixed in with the other priorities that you
               have in drug enforcement matters like why is
               alcohol different.
                    MR. SILBERLING:  First of all, alcohol is
               different for most people because it's legal.
                    UNIDENTIFIED SPEAKER:  But not under age.
                    MR. SILBERLING:  But not for under age.
               How do you get someone for drinking under age?
               Yes, if someone drinks a bottle of beer in the
               street, that's one thing, but most drinking
               occurs in houses.  How do you get someone for
               drinking?  Well, they are caught in the car.
               They get into an accident; they're drunk.
               That's how most people are really prosecuted
               for drinking.  I mean it's one thing to observe
               a sale of drugs on the street.  I mean it's
               another thing -- I don't remember the last time
               I saw a 14-year old kid drinking a can of beer
               in the street or a bottle of Chivas Regal.
               It's very tough to enforce because it's not
               open.
                    Drugs, we know we can go to some streets
               in the City of New York and we can see drugs
               taking place.  I mean an undercover police
               officer can go down the street and buy cocaine,
               but he sure enough is going to have a problem
               buying a can of beer from an 18-year old.
               There is a statute which is basically useless
               in this city, for example, which dealt with

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               sale of drugs in schools about where the person
               who sold the drugs sold it to someone who was
               under 17 years of age.  Well, that statute was
               useless because every cop in the city is over
               17 years old.  Are you going to get a kid who
               bought Marijuana or cocaine in a school to say
               "I just bought these drugs from this 8th grade
               student.  I want you to prosecute him."  It's
               just not going to happen.  It's much harder to
               go after alcohol and tobacco than it is to go
               after drugs.  It's just so prevalent in the
               streets.  It's so easy to obtain.
                    MR. DAVIS:  More generally, could you
               describe how it is that your office prioritizes
               prosecutions given limited resources?
                    MR. SILBERLING:  Well, most of the cases
               we get -- I mean we don't generate the cases.
               The police department generates them.  We
               basically take what they bring in or we respond
               to problems.
                    The big problem in the city right now is
               still cocaine and heroin.  Now also there's a
               burgeoning heroin problem, but for many years
               and still is, crack is a real problem because
               we have drug gangs that were organized to sell
               drugs and crack in many areas of the city, and
               there was a hell of a lot of violence that was
               associated with it, and that's where most of
               the complaints came in.
                    As law enforcement officials we have to
               respond to the will of the people.  If you go
               to a community meeting, and Mrs. Jones says,
               "they're selling crack on my block and these
               people are using it and they're committing
               violent acts," well, that's where we have to
               put our resources.  They are limited, and, you
               know, you go to the city council; you go to the
               Mayor, and you ask for money and they basically
               say if we had it, we'd give it to you, but
               there's a $5 billion deficit; where are we
               going to get these funds from.  They're just
               not available.
                    MR. DAVIS:  Thank you.  I think we have
               time for just one more question.
                    UNIDENTIFIED SPEAKER:  Likewise, I want to
               acknowledge that it is a real tough job.  I
               want to say one thing briefly, and that is that
               I don't think that we can afford to raise the
               level of the campaign against drugs, the war
               against drugs, for two reasons.  One, the money

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               is not there.  You would say that the
               leadership or the will is not there, and on the
               other hand, I don't think that the American
               public is willing to sustain the assault on
               some of the civil liberties, some of the abuses
               that are being perpetrated, with the forfeiture
               and so forth.
                    I would like to give you the opportunity
               as a law enforcement official and an honorable
               man trying to do an honorable job, if you had
               the opportunity to devise some more enforceable
               laws that could be enforced with a vigor that
               you would like to see laws enforced with, what
               would that be?
                    MR. SILBERLING:  That's a great question.
               It may take me a minute or so to think about
               that, but I think one of the real problems we
               have now is we have a real problem in dealing
               with immigration in this country and drugs.
               For example, we know that there is a small
               percentage of immigrants who come into this
               country who deal with drugs, sell drugs.  Most
               people who come in want to come in because this
               country offers a chance, but many times we get
               somebody who comes in here with the idea of
               bringing in drugs or dealing with drugs, and
               the first thing they do is they claim political
               asylum, and the I.N.S. is so understaffed and
               has no resources that they give this person a
               desk appearance ticket and let them out on the
               street with the idea being we're going to have
               a hearing to determine whether or not you
               deserve political asylum in two weeks or four
               weeks.  Well, over 92% of those people never
               return.
                    And what happens is some of these people,
               a small percentage, get involved with the drug
               trade, and we're letting these people in, and
               our prisons are packed with illegal aliens who
               should not be taking up the space in the
               prisons, and if we could get these people out
               of here -- now I don't mean the people who are
               major distributors of drugs.  I mean those
               people who we catch who get a sentence of one
               to three years, two to four years.  Now the law
               has been changed giving the state the right to,
               rather than put these people in prison, give
               them to Immigration and send them overseas.
                    A few years ago my office offered to
               Immigration, we said we will take -- we will

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               have a Defendant take a plea -- this was our
               plan.  We said we'll let you take a plea.  This
               is an illegal alien from Columbia.  He pleads
               guilty.  He's a second time offender.  He can
               get two to four years in jail.  We'll tell you
               what.  We won't put him in jail.  We'll agree
               to defer his sentence.  We will turn him over
               to Immigration.  You put him on a plane and
               send him out of this country, and if he
               returns, he goes to jail; he serves the maximum
               sentence, and Immigration said to us no, we
               won't do it.  We can't do it.
                    We thought it was a great idea.  We don't
               have the resources to do it.  That's a major
               problem.  It is a major problem, but I'll tell
               you, I think to me the greatest thing that
               could happen would be one day when we see
               President Clinton getting on TV and saying, you
               know something; we have a problem in this
               country, and we have to do something about it,
               and I want to mobilize this country, and I want
               to get these commercials on TV.  I want to
               devise education programs.  I want to bring the
               best minds in this country on education,
               treatment, prevention and law enforcement and
               let's see what works and let's come up with
               some theories and some programs and let's put
               some money towards this and take it out of the
               defense budget and do something here and then
               maybe, maybe, maybe we'll make a dent in this
               problem.
                    MR. DAVIS:  Thank you very much,
               Mr. Silberling, for taking the time to speak to
               us this evening.
                    Our next speaker today is Mr. David Leven,
               who is the Executive Director of Prisoners
               Legal Services of New York, a position he's
               held for more than 15 years.  Prisoners Legal
               Services represents inmates in civil matters
               throughout the prison system of this state and
               has been responsible for many significant
               correctional reforms under Mr. Leven's
               leadership.
                    MR. LEVEN:  Thank you.
                    I appreciate the opportunity to address
               the committee and the public this afternoon.  I
               also want to congratulate the committee for its
               excellent report.  I would like to start
               initially by responding to some of the things
               said by Mr. Silberling.  One of the things that

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               he mentioned was that he -- that I believe none
               of the people in this room are criminals.  In
               fact, I would suspect that many of the people
               in this room are criminals because anyone who
               has used illicit drugs is a criminal, and in
               this country 75 million people have used
               illegal drugs.  40 million people use them
               occasionally, according to your report, and
               some 12 million people use them regularly.
               There are lots of criminals -- too many
               criminals in this country who need not be
               criminals.
                    Secondly, Mr. Silberling said people who
               use or sell drugs are arrested time and time
               again before they go to prison.  What does that
               tell you?  It tells you very simply that our
               drug laws are not a deterrent to the sale and
               use of drugs.  They simply are not.  For people
               who are drug addicts, drugs are one of the most
               important things in their lives, and they will
               not be deterred by our drug laws no matter how
               harsh they are.  Mr. Silberling mentioned that
               the Cali Drug Cartel has been somewhat
               dismantled.  The Cali Drug Cartel is one of
               hundreds.  They are all over the world.
               They're not going to be stopped, for the most
               part.  They haven't been stopped in the past 15
               years despite the fact that we have poured $150
               billion into the law enforcement effort to
               reduce drug distribution and use.
                    Drug distribution and drug use continues
               fairly evenly despite the effort that's been
               made during the past 15 years.
                    Again, Mr. Silberling mentions that
               cocaine use is down, but heroin use is going
               up.  It's going up substantially and Marijuana
               use among teenagers, although it may be, and
               I'm not sure where he gets his statistics from,
               that 60 or 70 percent of high school seniors
               won't use drugs because of their fear of them
               or at least Marijuana.  In 1992 21% of high
               school seniors used Marijuana.  In 1993 that
               percentage increased to 26.  In 1994 I believe
               it was just under 30%.  A whole lot of high
               school seniors all over the country are not
               afraid of our drug laws, nor have been
               75 million people.  Over one-third of those
               over 12 years old have used illegal drugs at
               one time or another.
                    Last year the New York State Court of

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               Appeals in People against Thompson noted the
               following:  "The harsh mandatory treatment of
               drug offenders embodied in the 1973 legislation
               has failed to deter drug trafficking or control
               the epidemic of drug abuse in society and has
               resulted in the incarceration of many offenders
               whose crimes arose out of their own addiction
               and for whom the cost of imprisonment would
               have been better spent on treatment and
               rehabilitation.  The experience of the last two
               decades has clearly vindicated the doubts Chief
               Judge Brytell expressed in People against Brody
               on the wisdom of the Draconian drug sentencing
               laws".  That is the highest court in the state
               which is saying our drug laws have failed.
               They upheld the drug laws as not being totally
               irrational, but they also invited the
               legislature to change them, indicating that
               reform of the penalogical policy choices in
               combatting the drug scourge lies with the
               legislative, not the judicial branch.
                    It is unquestionably time not only to
               amend our drug laws and our drug policies, but
               it is also time to stop fighting the so-called
               War on Drugs whose casualties, largely due to
               prohibition laws, are children, young adults,
               mostly poor minorities and primarily low level
               drug sellers and users, mostly non-dangerous
               young men and women.
                    We are punishing people instead of
               treating people.  That's what our drug laws are
               supposed to do when they're enforced.  That's
               what our criminal laws are all about.  They're
               about punishment.  They are not about helping
               people, and that is the problem with them when
               it comes to dealing with people who have a drug
               problem.  The DETAP program may have been
               relatively successful, but how many people has
               it impacted.  Probably less than 150.  There
               are 25,000 people in New York State prisons now
               having been convicted of drug crimes, 7,000
               having been convicted of drug possession alone.
               And many of them are serving lengthy sentences
               including thousands of women who are not
               dangerous to anyone, and to the extent that
               they need help, they don't get it for the most
               part while they're in prison.  They could get
               it in much less costly but much more effective
               drug treatment programs.
                    We have had a major interdiction effort in

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               this country which has completely failed to
               stop the entering into this country of drugs
               through all kinds of ways.  The United States
               Department of Justice Bureau of Justice
               Statistics report "Drugs, Crime and the Justice
               System" states regarding drug smuggling into
               the United States, the length of its borders
               and the volume of international traffic makes
               the detection of contraband very difficult, and
               it supports that conclusion by noting that we
               have 88,000 miles of coastline and more than
               7500 miles of borders with Mexico and Canada.
               We have 300 ports of entry into the United
               States, and according to the report, more than
               400 million people entered or re-entered this
               country in 1991, more than 128 million
               vehicles, 157,000 vessels, 586,000 aircraft and
               3.5 million containers.  How can we possibly
               stop drugs from entering into the United
               States?  We cannot do so.
                    The former executive editor of the New
               York Times, Max Frankel, in an article in the
               spring edition of the Drug Policy Letter
               maintains that for the 5 million seriously drug
               addicted Americans "a year's supply of heroin
               for all could be made from opium poppies grown
               in only 20 square miles of land, not quite the
               area of Manhattan."  It doesn't take much land
               to grow opium poppies.  A year's supply of coke
               can be stashed in 13 truck trailers.  That's
               all we need.  He correctly contends that
               eradicating the supply abroad is impossible,
               interdicting drugs at the border is a joke.
                    It is time to stop kidding ourselves.  The
               law enforcement war has failed.
                    Criminalizing the use and sale of drugs
               has made a mockery of our justice system and
               has created terrible disrespect for our laws
               amongst the old and the young alike, but it is
               not only the general population which uses
               drugs.  A survey several years ago revealed
               that 9% of law students, those who will be
               using our laws and protecting their integrity,
               have used an illegal drug during the past
               month.  About the same percentage of medical
               students, those who should know the dangers and
               potential uses of drugs, also used illegal
               drugs.  If the same percentage of doctors and
               lawyers used illegal drugs we could, in
               New York, replace the current 25,000 or so

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               prison inmates who are convicted of drug crimes
               with the same number of doctors, medical
               students, lawyers and law students.
                    Let's just briefly examine what might
               happen if the Rockefeller Drug Laws were even
               enforced more than they are today.  And by the
               way, before we talk about that, let's look at
               the statistics, because Mr. Silberling says we
               haven't made enough of an effort.  Let's look
               at the effort that has been made and what's
               happened to our prison population.
                    Your report notes that prison population
               doubled over a 12-year period.  In fact, it
               tripled between 1980 and 1993 from 21,000 to
               over 65,000.  It's now almost 69,000.  It's
               mostly due to drug convictions.  The number of
               people incarcerated for drug crimes rose from
               886 in 1980 to 11,000 in 1994.  Over a 1200%
               increase, a 1200% increase in the number of
               people convicted and sent to prison for drug
               crimes, and it has had no impact on drug sales
               or usage in this state.
                    Today some 45 percent of those entering
               our prison system today are convicted of drug
               problems.  So what would happen if we tried to
               escalate law enforcement to an even greater
               extent.  What if we were to incarcerate
               250,000, a ten-fold increase over the
               approximately 25,000 people now incarcerated.
               Well, first of all, it would probably be
               impossible to do, but even if we could, we
               would still have some 3/4 of a million drug
               users in New York State and it would have cost
               $50 billion or more for prison construction,
               for law enforcement, to build more courthouses,
               et cetera.  We would have very little impact as
               a result of increasing our prison population to
               250,000.
                    California is going in that direction.
               They have over 130,000 people incarcerated in
               California largely for drug crimes.  Texas is
               moving in the same direction.  We must stop the
               law enforcement effort because it has failed,
               and it cannot succeed.
                    Several recommendations.  Obviously, we
               need to make treatment available to all who are
               in need.  We cannot continue the hypocrisy of
               condemning people to prison for a problem for
               which we failed to provide needed help.  Recent
               studies have shown that drug treatment is cost

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               effective.  It's far less expensive, and it's a
               lot more humane than imprisonment.  If we can
               find enough prison space for people who aren't
               dangerous, who are simply drug possessers or
               low level drug sellers, and find enough prison
               space for people who are dangerous, certainly
               we must be able to find the money to put into
               treatment, spaces for those who are addicted
               and who need help.
                    The Rockefeller Drug Laws must be
               repealed.  The Draconian sentences cannot be
               justified under any rational sentencing policy.
               These laws fail to distinguish between minor
               and major participants in the drug trade and
               are thus extraordinarily unjust.  This is
               highlighted by the fact that those possessing
               just 4 ounces of a narcotic drug face the same
               sentence as murderers, arsonists and kidnappers
               while inmates convicted of rape, sexual assault
               of a child and armed robbery carry lesser
               sentences.  In this regard I think there is
               really a critical need, as Mr. Silberling said,
               to start getting people to meet together, to
               put people's heads together from law
               enforcement to experts in the field of drug
               abuse and drug use; to begin to work together
               on the same level playing fields, to create a
               better understanding of how our drug laws have
               failed and cannot succeed in order to hopefully
               change their attitudes, because if we can't
               change and we don't change the attitudes of law
               enforcement, police officers,
               district attorneys, it's going to be extremely
               difficult to change the attitudes of
               legislators and policy makers and City Hall.
               It's understandable that their attitudes are
               difficult to change because they've seen the
               damage which is caused by drugs, and clearly
               damage is caused by drugs.  What they don't
               realize is that there is substantially more
               damage caused by our drug laws and the
               enforcement of those laws.
                    Mr. Silberling said there are dealers on
               every street corner.  Of course there are.
               That's because drugs are illegal.  We wouldn't
               have those drug dealers on every street corner
               if drugs were legalized.
                    Maybe we don't have a plan as yet, but we
               don't have a law enforcement plan that works
               either.  It simply doesn't work.  It's

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               completely failed despite all of the efforts
               that have been made over decades to enforce our
               laws against drugs.
                    We can develop a plan.  Maybe it will
               work.  Maybe it won't.  But let's give it a
               chance.  Let's experiment.  That's all we're
               suggesting be done here, and there are plans
               which seem to have some credibility, including
               the legislation which has been proposed by
               Senator Gallagher.  It has a lot of good
               aspects to it.  I would like to see
               Mr. Silberling respond to each one of the
               aspects he criticized, and if there's a better
               way of doing it, let's try the other way.  But
               at least let's experiment.  We can have sunset
               laws.  We don't have to have this as a profit
               making business.  There don't have to be
               profits just because we have drugs legalized.
               It could be government regulated, government
               controlled and it could be a not-for-profit
               making business.
                    We have seen what happens when we give
               control of our drug laws to law enforcement.
               Even in this past legislative session when
               there was some effort to change our drug laws,
               it really didn't succeed.  We gave enforcement
               to law enforcement, to District Attorneys to
               allow people in prison who had been convicted
               of D felons to be released upon their approval,
               providing that the Department of Correctional
               Services and Parole agreed that those people
               either had completed a drug treatment program
               or were no longer in need of treatment, and
               what happened; only a small percentage of those
               people were approved by D.A.s for release.
               District Attorneys should not control what
               happens to people who are drug users or drug
               sellers.
                    To the extent that we still are going to
               continue to have drug laws, it should be judges
               who have complete discretion to sentence people
               depending upon the circumstances of the crime
               and the life history of the individuals
               involved.
                    The work of this Bar Association is
               significant, but I think it may take more and I
               would recommend at least that consideration be
               given to the creation of a New York bipartisan
               study commission convened by Chief Judge Judith
               Kaye to provide a non-political forum to

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               discuss and debate meaningful and constructive
               drug policy reform in New York.  A national
               commission should also be established.
                    Polls in recent years are instructive.
               They reveal that a large majority of citizens
               support drug treatment and counseling, not
               punishment, particularly for drug users, and a
               majority of our citizens feel that our drug
               enforcement laws have completely failed.
                    The drug laws in New York have been an
               inevitable catastrophe.  Prohibition did not
               work with alcohol, and with respect to that,
               after prohibition ended, the murder rate
               dropped for eleven consecutive years.  After
               alcohol prohibition ended, assaults with
               weapons dropped for ten consecutive years.  We
               don't know what will happen if drugs are
               legalized.  We don't know whether or not there
               will be an increase in drug usage among
               children, but we will certainly make an effort
               to ensure that there's not a black market that
               gets to children.  That effort hopefully might
               be successful because obviously the focus at
               that point will be to sell drugs to children
               and hopefully we can prevent that from
               happening.
                    We have failed to learn the lesson of
               alcohol or drug prohibition until now, but as
               Franklin P. Adams stated in 1931 "prohibition
               is an awful flop.  We like it.  It can't stop
               what it is meant to stop.  We like it.  It's
               left a trail of graft and slime that don't
               prohibit worth a dime.  It's filled the land
               with vice and crime.  Nevertheless we're for
               it."
                    It's time to stop being for drug
               prohibition and to start employing reasonable
               and realistic means to address a difficult
               problem.
                    In conclusion, we can no longer afford
               drug laws which are destroying young lives
               rather than helping people and protecting
               society.  We can no longer afford drug laws
               which drain this state of billions of dollars,
               tens of billions of dollars, hundreds of
               billions of dollars, which are needed to help
               make it survive.  A new direction is urgently
               needed and policy makers must summon the
               courage to proceed in that direction to develop
               sensible, workable and humane drug policies.

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                    Thank you.
                    MR. DAVIS:  Thank you, Mr. Leven.  Do we
               have questions from the panel?  Any questions
               from the audience?  Well, that's a seamless
               presentation.
                    MR. LEVEN:  It must mean that everyone has
               disagreed with what I've said.
                    MR. DAVIS:  Or agreed.  Oh, we have a
               question.
                    UNIDENTIFIED SPEAKER:  I would just like
               you to comment on what you think would happen
               if you legalize drugs and decriminalize drugs
               in terms of state corruption, in terms of
               corruption in drugs if it's legalized and how
               would that affect the issues?
                    MR. LEVEN:  I honestly have no idea
               because we haven't tried it.  Although we
               haven't had corruption, I don't think, with
               respect to legalizing alcohol.  So, I honestly
               don't know.
                    We have a lot of corruption now in law
               enforcement, in police forces, because of
               drugs.  There are a lot of police officers on
               the take.  There are lots of police officers
               who turn their back, and understandably.  Many
               police officers recognize the futility of the
               drug war.
                    There are other aspects to the drug war
               which I'd like to point out, and which I'm
               reminded of by your question.  That is that the
               drug war has really had an incredibly
               disproportionate impact on minorities and
               women.  Minorities constitute over 90% of those
               people in New York State prisons who have been
               convicted of a drug crime, over 90 percent, and
               yet studies show that at least with respect to
               African Americans they constitute only 12
               percent of drug users in this country.  Clearly
               a large majority of drug users are white.  Now
               many of them are not in poor neighborhoods.
               There are poor white neighborhoods and people
               who are selling drugs in those neighborhoods
               are being caught, but a disproportionate number
               of people are being caught as street sellers
               and users in minority neighborhoods because
               it's easy to catch them on the street.  You
               don't catch them in Wall Street offices where
               still drug dealing takes place, or all over
               this country in schools and other public places
               where drug dealing takes place.  So we have a

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               disproportionate number of minorities who are
               incarcerated for drug crimes.
                    The same is true of women.  70 percent of
               those women who are incarcerated now in New
               York State prisons are incarcerated for drug
               crimes compared to approximately 40 percent of
               men, and most of these women again are not
               dangerous to themselves or others.  They are
               not violent people.  Some of them may need
               help.  Some of them may be dangerous to
               themselves or children in some ways, but they
               don't get the help they need for the most part
               while they're in prison.  They would get the
               help they need if they were in drug treatment
               programs.
                    MR. DAVIS:  Another question.
                    UNIDENTIFIED SPEAKER:  I was wondering if
               you see any connection between the growth of
               prison labor and the privatization of prisons
               and even the chain gangs with maybe the
               government's or whomever's unwillingness to
               repeal acts like the Rockefeller Law and keep
               incarcerating more and more people in order to
               do the work?  Does that make sense?
                    MR. LEVEN:  Yes, if I understand the
               question.  I don't see the connection between
               prison labor and our drug laws.  There is a
               good deal of prison labor.  In New York it's
               mostly used for things which are at least
               relatively constructive, at least while people
               are in prison; although I must say that there
               are not very many programs which would be
               useful for people once they leave the prison
               system.
                    So again, one of the problems with our
               current drug laws is you take a lot of people
               away from their jobs, because there are a lot
               of drug sellers and users who have jobs.  You
               put them in the prison system, and when they
               get out, they're not going to be able to get
               those jobs back or any other job because
               they're now a convicted felon.
                    With respect to the chain gangs, they're
               being used mostly in the south, Florida,
               Arkansas.  It started actually in Arizona.  I
               think New York will resist them.  It's a kind
               of labor which will just create a great deal of
               hostility and resentment in those people who
               are forced to do hard labor for 10, 12 hours a
               day chained to four or five other people

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               working in the hot sun in a situation which is
               probably dangerous to themselves as well as to
               people who are driving by in their cars who
               slow down to gawk and yell at them.  It's a
               humiliating experience which is not going to
               have any kind of a positive impact, but I don't
               see the relationship between any of those chain
               gangs and our drug laws and law enforcement.
                    UNIDENTIFIED SPEAKER:  Thank you.
                    MR. DAVIS:  Thank you.
                    UNIDENTIFIED SPEAKER:  I wonder if you
               would agree that it's not enough to say that
               you're going to legalize drugs.  It seems to me
               that what has to be done is that the
               legalization of this has to be coupled with all
               of the money that you'd save on police, judges,
               prisons, courts should be spent on education,
               treatment, unleashing Hollywood, let's say, for
               a war against drugs, making it unchic, if you
               will, getting Madison Avenue involved, if you
               will, and perhaps even putting a skull and
               cross bone on these legalized drugs, whatever
               the container has in it, and I just wonder if
               you'd comment on that approach.
                    MR. LEVEN:  Everything you said I
               completely agree with.  In fact, one of the
               things that I think our Board of Regions and
               Education Departments ought to be doing is
               developing a much more comprehensive statewide
               drug and alcohol abuse curriculum, and if it
               means extending the school day in order to have
               that happen from kindergarten through the
               senior year, then I think that that ought to
               happen.
                    In fact, extending the school day will
               probably decrease the amount of drug usage by
               students for whatever reason we extend it;
               whether it's for those kinds of classes which
               could be integrated into other courses or done
               separately, but other kinds of programs,
               because most crime which is committed by
               juveniles is committed between 3:00 o'clock and
               6:00 o'clock of the day, right after school and
               before kids go home for dinner, by kids who
               often have parents who are working and don't
               know what their kids are doing between 3:00 and
               6:00.  If you keep those kids occupied with
               constructive activities, they are a whole lot
               less likely to be abusing drugs, what are now
               considered elicit drugs, as well as alcohol.

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                    So I completely agree with you, and get
               Hollywood involved.  I think Mr. Silberling was
               right.  I think President Clinton has neglected
               the drug issue for whatever reasons, if it's
               because of his embarrassment because of his own
               drug use and not inhaling Marijuana, but
               whatever the reason, he has not done anything
               with this issue and ought to be taking a
               leadership role.
                    UNIDENTIFIED SPEAKER:  The point being, of
               course, we need a joint approach.
                    MR. LEVEN:  It has to be an integrated,
               joint approach.  There's no question about it.
               Drug education has to be a key element of it.
               I also agree you have to be labeling drugs,
               whatever is being sold, and you have to
               educate, not just children, but adults, about
               the potential dangers of elicit drugs.
               Absolutely.
                    MR. DAVIS:  Thank you.  Dr. Cleveland.
                    DR. CLEVELAND:  I wanted to ask a little
               bit about what the Prisoners Legal Services
               does and how that is affected by the drug war.
                    MR. LEVEN:  Prisoners Legal Services of
               New York is a program which is funded by the
               state to provide civil legal services to
               convicted felons in our 69 state prisons.  We
               provide a comprehensive range of civil legal
               services from representing inmates in
               disciplinary hearing appeals to guard brutality
               cases to immigration cases.
                    There is only a minor connection, I think,
               between those who are incarcerated for drug
               crimes and the services that we provide;
               although again, there is really a serious
               dichotomy, I think, to a large extent in the
               inmate population between people who are
               nonviolent drug offenders and people who are
               convicted of violent crimes, some of whom also
               don't belong in prison, but some of whom do,
               and clearly are dangerous, and you see that
               constantly.
                    We also see the same kind of thing
               sometimes with women who have sometimes been
               forced into the drug trade by men, women who
               have been victims of domestic violence, some of
               whom have killed their abusers, but many of
               whom simply don't belong in prison, and if they
               belong at all, they don't belong for the
               lengthy sentences they're serving because they

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               are really not dangerous people.  They are only
               dangerous to the person they killed who was
               their abuser.
                    MR. DAVIS:  Mr. Levin, thank you for
               staying with us so late into the day.
                    I'm going to adjourn the hearings now and
               we will reconvene tomorrow at 9:00.
                    Some of the speakers tomorrow will be
               Federal Judge Sweet and State Supreme Court
               Justice Alvin Schlesinger.  I hope many of you
               will be able to join us.  And thank you again
               to Q & A Reporting for providing the court
               reporter for today's hearings.

                              (Time noted 5:15.)




































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