HaCKeRz Kr0nlcKLeZ 1/HaCKeRz Kr0nlcKLeZ.iso/drugs/hearings.3.1

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 2    ASSOCIATION OF THE BAR OF THE
      CITY OF NEW YORK
 3    --------------------------------x

 4    The Committee on Drugs and the Law

 5    Public Hearings on a Report:

 6
            A WISER COURSE:
 7
        ENDING DRUG PROHIBITION
 8
      --------------------------------x
 9

10                              October 12, 1995
                                9:00 a.m.
11
                                42 West 44th Street
12                              New York, N.Y.

13
      Before:
14
                 KATHY H. ROCKLEN, Chair
15
                 JOHN H. DOYLE III
16               AGATHA M. MODUGNO
                 STEPHEN L. KASS
17               DANIEL MARKEWICH
                 ELEANOR JACKSON PIEL
18

19

20

21

22

23                   PIROZZI & HILLMAN
                   Computerized Reporting
24                   274 Madison Avenue
                    New York, N.Y. 10016
25                      212-213-5858


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 2               (Hearing Commenced)

 3               MR. DOYLE:  We are going to commence

 4    our third day of hearings.

 5               My name is John Doyle.  With me up

 6    here at the podium, on my right, is Agatha

 7    Modugno, who is a member of our committee, and

 8    she is corporate counsel at Minerals

 9    Technologies, Inc.  On my left is Stephen L.

10    Kass, who is a partner at Carter, Ledyard &

11    Milburn, and Steve is also a member of our

12    committee.

13               I would first like to acknowledge the

14    assistance and participation of Joseph Pirozzi of

15    Pirozzi & Hillman, which is a well-known court

16    reporting firm here in New York City.  Joe and

17    his firm are participating on a pro bono basis in

18    reporting the proceedings and will provide us

19    with a transcript.  We very much appreciate Joe's

20    contribution to our effort.

21               Our first witness this morning will be

22    Marianne Apostolides.  Ms. Apostolides is a

23    graduate of Princeton University, she is a

24    research associate at the Lindesmith Center.

25               For those of you who have been working


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 2    in this field or who have been present at some of

 3    our prior hearings, you will recognize that name

 4    as being the name of a very active and productive

 5    organization, funded in large part by George

 6    Soros and the Soros Foundation, which has

 7    assembled a group of outstanding experts in this

 8    field, and they have an ongoing series of public

 9    lectures that you, at the exit, can get copies

10    of.

11               They have three lectures coming up

12    within the next month, and it is something that

13    anyone who wants to keep up to date in this field

14    will find essential to be in touch with.

15               As to Ms. Apostolides, her areas of

16    concentration are needle availability, drug

17    policy in Western Europe and Australia, drug

18    testing and drug information, and she's written

19    in those and other fields as well.

20               Ms. Apostolides, would you like to

21    begin your presentation?

22               MS. APOSTOLIDES:  Thanks very much.  I

23    will be speaking mainly on Dutch drug policy.

24               MR. DOYLE:  Would you speak right into

25    the microphone.


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 2               MS. APOSTOLIDES:  Is that better?

 3               MR. DOYLE:  A little bit better but

 4    put it as close as you possibly can.

 5               MS. APOSTOLIDES:  I will be speaking

 6    mainly on Dutch drug policy.

 7               MR. DOYLE:  Can everybody hear okay?

 8    It is very important that everybody hear.  If you

 9    can't, just raise your hand.  I'm sorry.

10               MS. APOSTOLIDES:  And the Dutch

11    philosophy on drug use is mainly a harm reduction

12    philosophy, and that's a philosophy that's been

13    taken up by other countries, although I don't

14    think as consistently as in the Netherlands.

15               Our perspective is basically a public

16    health perspective as opposed to a criminal

17    justice perspective on drug use.  Drug use itself

18    is not viewed as an evil that can be somehow

19    eliminated by the criminal justice system or by

20    promoting abstinence.  It is seen as inevitable

21    and problematic.  Drug use is seen as a

22    manageable problem and there is also a

23    distinction between drug use and problematic drug

24    use.

25               Law enforcement is not seen as a


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 2    suitable means to regulate the demand side of

 3    drugs, and it's mainly seen that law enforcement

 4    can sort of exacerbate the problems associated

 5    with drug use.

 6               Although law enforcement is used in

 7    terms of stopping international drug trafficking

 8    and which the law is dealing with, and I think

 9    the harm-reduction philosophy has been the most

10    consistent in the Netherlands than any other

11    country, and it was laid out in the late 1960s,

12    early 1970s.

13               I want to quote to you a government

14    white paper report to Parliament from 1975 which

15    basically lays out harm reduction before the term

16    was even sort of coined.

17               It says, "The aim of Dutch drug policy

18    is to contribute to the prevention of and to deal

19    with the risk that the use of mind-altering drugs

20    is to individuals themselves and their immediate

21    environment and society as a whole."

22               There is no sort of moralism.  There

23    is no "we must end all drug use."  Its kind of

24    seen as "Let's deal with a very pragmatic

25    approach.  Let's deal with drug use in the best


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 2    way we can to reduce as many of the risks as we

 3    can."

 4               In 1972 there was a report of the bond

 5    committee which was formed to evaluate government

 6    drug policy, and this is where a lot of drug

 7    policy was crystallized.  The committee drew a

 8    distinction between hard and soft drugs.

 9               Soft drugs being hashish and marijuana

10    and hard drugs being pretty much everything else.

11    This distinction was between drugs that pose

12    unacceptable risks versus those that pose

13    acceptable risk.  And soft drugs were considered

14    relatively harmless and, therefore, users and

15    small dealers should be left alone.

16               The bond committee also created a sort

17    of two-track philosophy, a medical approach to

18    addicts to try to get them medical attention.

19    Also social work type of stuff.  And the criminal

20    justice approach to large-scale dealers and

21    international traffickers.

22               And with this, the bond committee

23    report was incorporated into the revised OB map

24    of 1976 which had two main provisions, again,

25    acceptable versus unacceptable risks and the


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 2    distinction between user and trafficker.

 3               Now to the cannabis policy.  Cannabis

 4    is not explicitly legal in the Netherlands.

 5               Under the law, 30 grams, possession of

 6    30 grams of cannabis is considered a summary

 7    offense rather than a criminal offense, and it is

 8    pretty much never prosecuted.  But that is the

 9    only thing in the legal code in terms of the

10    legality or illegality of cannabis.

11               So basically the way cannabis is

12    regulated is through the expediency principle,

13    which is laid down in the code of criminal

14    procedure.

15               And the expediency principle states

16    that the public prosecutor has the right not to

17    prosecute a certain crime on the grounds deriving

18    from the public good.  The expediency principle

19    is a basis part of Dutch law and not specifically

20    geared to drug policy.  And basically the way

21    that works is the general prosecutor creates

22    guidelines for other prosecutors as to how to

23    apply this expediency principle for different

24    crimes.

25               And it basically provides another way


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 2    to prosecute or to establish priorities as to

 3    what crimes are most important to prosecute and

 4    which can be sort of, in a way, turned aside, or

 5    turn the other way.

 6               On the guidelines for coffee shops,

 7    there are five.

 8               One, no sale to minors, and that's

 9    considered people under the age of 16.  No sale

10    of any other drugs.  No advertisements.  No

11    encouragement of use.  And no sale of anything

12    over five grams.  And until last month with the

13    new Dutch drug law, it is called the Drugnota,

14    that was up to 30 grams.  That has been reduced

15    greatly and in part that's because of pressure

16    from the European community since the borders are

17    -- it is much more laxed.  France especially,

18    there has been a lot of pressure on the Dutch to

19    sort of tighten their policy.

20               Also there were high-level discussions

21    about the legalization of the production and sale

22    of cannabis, as opposed to decriminalization.

23    They were putting quotes on the books.  This was

24    sort of stalled by the Drugnota of last month,

25    which stated, and I am quoting, "the legalization


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 2    of either hard or soft drugs is not an objective

 3    ... the Dutch government would not expect any

 4    decrease in the criminal trade in drugs if the

 5    Netherlands were to legalize drugs (soft drugs)

 6    unilaterally.  Moreover, legalization would lead

 7    to even lower prices on the Dutch market, and

 8    thus to a further increase in drugs tourism, a

 9    development the government deems unacceptable."

10               There, again, you have this sense of

11    feeling pressured from the European community.

12               One other thing about cannabis.  The

13    coffee shops are really sort of integrated in the

14    life of Dutch cities.  It is like going into a

15    cafe or a bar here in the United States.  You see

16    people drinking their capuccino or having a beer

17    or smoking a joint.  It is very integrated.  It

18    is not anything that's sort of shocking to

19    anyone, I think, except tourists.  So it is

20    important to note that.

21               Also there were approximately 1,200 to

22    1,500 coffee shops in 1991, which was the latest

23    figure I could get.  The turnover of cannabis

24    products in coffee shops is about two billion

25    Dutch guilders per year.


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 2               Dutch treatment policy is somewhat

 3    different from the United States.  About 75

 4    percent of current addicts come in contact with

 5    some sort of treatment agency.  And these can

 6    include low threshold methadone maintenance,

 7    social work and there is now going to be a heroin

 8    prescription program, which I will talk about in

 9    a minute.

10               Let me first talk about methadone

11    maintenance.  The philosophy of methadone

12    maintenance is different from the philosophy in

13    the United States.  Methadone maintenance is not

14    seen as something -- the objective is not to get

15    all users to stop using heroin.  The objective is

16    to work with the user to find out how he or she

17    can stabilize his lifestyle, find a job, find a

18    home, and sort of regulate his drug use.

19               So in the United States the doses are

20    often times very high and there can be, it often

21    times with urine tests there could be punitive

22    measures taken if you are found to be using other

23    drugs.

24               In the Netherlands people are sort of

25    asked, "Are you still going to be using heroin?"


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 2    Okay, if people are going to be using heroin,

 3    still, the dose is lower.  Perhaps they will use

 4    methadone in the morning and go to the job and

 5    take their heroin at night.  But the objective,

 6    again, is to reduce the harm of using drugs and

 7    increase the well-being of the people who are

 8    using the drugs that often includes, having a

 9    job, earning an income and stabilizing or

10    regulating use.

11               So with this kind of approach you can

12    use your heroin, even if you are on methadone, if

13    its in consistently with the Dutch philosophy

14    where it doesn't with the American philosophy.

15               95 percent of clients use heroin as

16    well but only 37 percent use it on a daily basis.

17    And programs are generally, as I said, widely

18    accessible and the rules are less strict and,

19    therefore, have a broader reach.  That's a quote

20    from the Dutch sort of Administrative Health

21    Welfare and Sports.

22               Also 25 percent of methadone clients

23    are integrated into society, in other words, they

24    are in school or have jobs.  33 percent are in

25    control of their addiction, in other words, they


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 2    use very little heroin and 25 percent suffer from

 3    serious physical and social problems.

 4               There is also going to be, starting in

 5    1996, an experimental heroin prescription program

 6    based in part on the program that's now being

 7    done in Switzerland.

 8               The objectives of this program are

 9    fourfold.  First it is to determine whether

10    addicts can be stabilized in terms of getting a

11    job.  To determine whether their well-being can

12    be improved, their physical as well as social

13    well-being.  To determine whether additional use

14    can be reduced, mainly cocaine, and to determine

15    whether they can be encouraged to end their

16    addiction.

17               I am quoting from the committee which

18    proposed to the government that this program be

19    started.  They said "Experiments of this kind may

20    be found to have a positive effect upon the state

21    of health in the broadest sense of the term, that

22    is to say, the biopsychosocial well-being of

23    certain categories of addicts without there being

24    unacceptable psychological damage."

25               Dutch philosophy on drug education is,


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 2    again, very different from the American

 3    philosophy.  Kids are taught about drugs within a

 4    broader social -- within a broader context.  So

 5    the context is basically promotion of healthy

 6    behavior and developing social skills to be able

 7    to cope with life, basically, as opposed to

 8    dealing with this sort of "Just say no," police

 9    officers coming into schools, which we have with

10    the program.

11               I have a lengthy quote, which I think

12    sums up the Dutch philosophy toward education,

13    which I would like to read to you.  It is written

14    up by the Ministry of Welfare, Health and

15    Cultural Affairs.  It says:

16               "A large number of people experiment

17    with drugs without actually becoming addicted.

18    There are many types of users with many types of

19    lifestyles.  Measures to prevent occasional users

20    from becoming addicted are therefore extremely

21    important and preventing problems accordingly

22    given at least equal emphasis as preventing use

23    of drugs."

24               That's very different from the

25    American philosophy.


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 2               "In view of the above, the Dutch

 3    government believes that drug use should be shorn

 4    of its taboo image and its sensational the

 5    emotional overtones.  The image of the user and

 6    addict should be demythologized and reduced

 7    reduced to its real proportions, for it is

 8    precisely the stigma paradoxically enough, that

 9    exercises such a strong attraction on some young

10    people."

11               This is very striking and very

12    different from the American approach.

13               I have some statistics that drug use

14    among youth in the Netherlands for every drug

15    including cannabis is lower than drug use in the

16    United States.  Obviously, this approach is a

17    positive one.

18               Needle exchange, perhaps, I will go

19    over quickly.  They were established in 1984 by

20    the emphasis of the junkie unions which is

21    basically organizations of users who were urging

22    the establishment of syringe programs actually to

23    prevent the spread of hepatitis as opposed to

24    HIV.  And 93 percent of the syringes distributed

25    in Amsterdam were returned.  That's the latest


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 2    figure.  We have had enough talk on that in the

 3    U.S.

 4               Also, there is an interesting program

 5    now that's run by the National Institute on

 6    Alcohol and Drugs, why they will actually test

 7    drugs that people -- for a small fee -- they will

 8    test drugs that people bring to them.

 9               Mainly Ecstasy pills, MDMA, MDEA and

10    the goal of this is, again, harm reduction.  They

11    often set up at large raves, which are large

12    parties, and you will have police officers around

13    who are in support of this and kids, mainly

14    teenagers will come, bring their pills to be

15    tested by people who are working for an

16    organization that's, in part, supported by the

17    government.

18               And basically what it does is allow

19    kids to know what they are putting in their

20    bodies.  It allows people to realize, yes, this

21    is Ecstasy, it is 120 milligrams, so they know

22    exactly what they are taking.  That is a

23    harm-reduction philosophy.  It seems kind of

24    strange to Americans to know that the government

25    -- even though the drugs are illegal -- the


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 2    government is saying give us your drugs, and we

 3    will tell you what is it in.  We are not going to

 4    arrest you for it.  It is kind of a strange

 5    thing, with a practical lesson the U.S. can adopt

 6    from the Dutch drug policy.

 7               Basically, I think it is true that we

 8    can't sort of translate everything from the Dutch

 9    experience to the American experience because the

10    health care system is different, the poverty

11    level is different, there is much more of a

12    pragmatic versus moralistic undertone to the

13    culture in a lot of different areas.  But I think

14    there are certain lessons that we can derive.

15               First, harm reduction as the goal of a

16    drug policy, taking drug use and drug policy out

17    of the realm of the criminal justice system and

18    into the realm of public health.

19               Second, a realization that zero

20    tolerance of drug use is unworkable and causes

21    more harm than it does benefit.

22               Third, decriminalization of the

23    possession of drugs for personal use.

24               Fourth, widespread establishment of

25    needle exchanges and low threshhold methadone


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 2    maintenance clinics.

 3               Finally, the encouragement of

 4    small-scale experiment programs such as the

 5    heroin prescription trial.  Basically, most

 6    important is this change in thinking, this turn

 7    away from moralism and toward dealing with users

 8    as people with problems and dealing on their

 9    level and finding out what they need to best

10    stabilize their lives.

11               MR. DOYLE:  Thank you very much.  Let

12    me introduce Dan Markewich on my far left, who is

13    a member of our committee and will be

14    participating on the panel this morning.

15               Why don't we start off with questions,

16    if there are some, from the panel members here

17    and then we'll go to the members of the audience.

18    There will be a microphone available to you for

19    your questions.

20               Agatha, do you do you have a question?

21               MS. MODUGNO:  Yes.

22               You had mentioned having statistics

23    that the instance of drug use among minors in the

24    Netherlands was lower than it is in the States.

25    I was wondering if you do have general statistics


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 2    about the pervasiveness of drug use, what

 3    percentage of the population in the Netherlands

 4    is active in the use of drugs?

 5               MS. APOSTOLIDES:  I do in fact.  An

 6    ever used of cannabis is 25 percent of the Dutch

 7    population age 12 and over.  So I think probably

 8    I couldn't get statistics for age 18 and over.

 9    So it would probably be higher.

10               For cocaine ever used it is 5.5.  For

11    amphetamines, 4.1.  For hallucinogens, also 4.1.

12    For opiates, it is 7.3.  But that's, if you were

13    to look at for heroin only, it is much lower.

14    That includes, I think, as well people who not

15    only use methadone but people who also have been

16    prescribed opiates by a doctor.

17               That's ever used.

18               If you look at used in the past year

19    or used in the past month, it is much, much

20    lower.  You have cannabis 9.9 percent,

21    hallucinogens, 0.3.  So it is not very high.

22               MR. DOYLE:  Let me go now to the left.

23    Steve, do you have any questions.

24               MR. KASS:  I do.  I have THREE

25    questions.  First, is a follow-up of the last


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 2    question.

 3               Many of the people who are receiving

 4    methadone or other forms of maintenance have

 5    stabilized lives, and that, I assume, means they

 6    are living with, many of them, living with their

 7    families.

 8               One of the concerns here is that if

 9    the Bar Association recommendation of

10    decriminalization is adopted, there would be

11    widespread use by people who are not currently

12    using drugs because it would be seen as a

13    validation of that use.

14               I wonder whether you have any

15    statistics as to the degree of which family

16    members of people who are on maintenance, or

17    themselves, become users and how that frequency

18    would compare with the population generally?

19               MS. APOSTOLIDES:  I don't know that

20    statistically, no.

21               MR. KASS:  Do you hav any thoughts on

22    whether that immediate audience would be more

23    likely affected by the fact that a parent, for

24    example, or a sibling was presently using drugs?

25               MS. APOSTOLIDES:  I don't think so.  I


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 2    think it is kind of an odd set up, I think,

 3    because there is no -- I don't know how to term

 4    this.  Unlike, I think, alcohol, there is -- it

 5    is harder to use heroin.

 6               In other words, there are more costs

 7    using heroin than there are, say, using alcohol.

 8    I think most people would not be attracted to

 9    using this kind of drug.  So I think if you

10    created a decriminalized system where possession

11    of personal use is not -- you are not arrested

12    for it and small-type dealing, you would not be

13    arrested, you still wouldn't have hordes of

14    people going out saying "I want to try it, I want

15    to use heroin."

16               One thing there is in the Netherlands,

17    there is, sort of, almost a respect for the

18    substance and the potency of the substances, and

19    you can't be using, you have to realize what you

20    are putting in your body.

21               And so I think if we had that kind of

22    education where we let people know what the risks

23    of using certain drugs are without making

24    moralism out of it, but saying, "If you use

25    heroin, this is what's going to happen to you.


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 2    Be careful, be warned."  And this is not

 3    something that people can build up and sort of

 4    experiment with or might want to experiment with.

 5               Then, I think you will have, you know,

 6    again, that's the proper approach.

 7               I don't know if I am answering your

 8    question.

 9               MR. KASS:  You are leading me to my

10    second question, which is, the feasibility of

11    experimenting with a more, a different kind of

12    policy in one jurisdiction among many.

13               You reported that the Dutch seem to

14    have moved backward, at least in the area of

15    marijuana.  It is not clear whether that would

16    also apply to cocaine and heroin and other kinds

17    of substances, but the pressures of the European

18    community and the threat of tourist drug use seem

19    to call into question the ability to maintain the

20    practice or philosophy that they developed.

21               Do you think we would have that same

22    problem here?  Or just talk about that a little

23    in the context of hard drugs.  I don't think they

24    are taking a step back in the cannabis policy.

25    They are reducing enough that it can be sold in


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 2    coffee shops, but possession of up to 30 grams is

 3    still, you can possess up to 30 grams.

 4               So it is not really, I think it is

 5    more sort a nod to the European community than a

 6    reversal of policy.

 7               I think that a lot of international

 8    pressure on the countries to have more

 9    restrictive policies as coming from the United

10    States.  So I think that if we were to sort of

11    start to alter our philosophy and our thinking

12    and our policy, it would give a lot of other

13    countries in Western Europe, I think, a little

14    more breathing space to begin to examine their

15    own drug policy.  I don't think it is so much the

16    WEC would be putting pressure on us, but we're

17    putting pressure on the WEC.

18               MR. KASS:  I was speaking of the New

19    York versus other states as an analogue to Europe

20    and the Netherlands.

21               MS. APOSTOLIDES:  If you look at the

22    experience of Germany why you have different

23    cities, certainly in Hamburg and Frankfurt, who

24    have more progressive policies than other cities,

25    that experience has worked very well, and I think


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 2    this sort of, the tenor of the American political

 3    world right now is really toward federalism,

 4    loosen the ties of central government and let the

 5    states sort of be the experimental lab,

 6    laboratories, whatever.

 7               I think that fits right into what the

 8    New York Bar Association is interested in.

 9               MR. KASS:  That there be no influx of

10    people seeking access to hard drugs into the

11    Netherlands, for example, France, Germany.

12               MS. APOSTOLIDES:  Definitely for

13    cannabis.  For hard drugs on the borders of the

14    cities, people are worried, but it is mainly, the

15    debate is mainly around cannabis and not around

16    hard drugs.

17               MR. KASS:  Two other questions if I

18    may, John.

19               MR. DOYLE:  Sure.

20               MR. KASS:  Is there any practice

21    lawful or unlawful of discrimination by employers

22    or landlords, for example, in the Netherlands

23    against people who are on these programs?

24               MS. APOSTOLIDES:  Not that I have

25    noticed.  And I spoke to a lot of people who are


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 2    on methadone and who are running methadone

 3    clinics.  There is also a much sort of more, I

 4    don't want to say better, but in some sense it is

 5    a better system of getting people public housing.

 6               So often times people who are on

 7    methadone maintenance -- as I read these

 8    statistics to you before, 25 percent have jobs.

 9    That means 75 percent don't.  They are probably

10    on some form of public housing.  There is no

11    discrimination.

12               MR. KASS:  Do you know whether it is

13    lawful or would be lawful for a landlord or

14    employer that wants to refuse to rent or refuse

15    to hire on the grounds that the person was

16    admittedly an addict?

17               MS. APOSTOLIDES:  I can almost 99

18    percent sure say that would be illegal, but I

19    don't know that for certain.  But that, to me,

20    would be completely opposite of the Dutch sort of

21    approach to drug use.  But I certainly can find

22    that out for you for sure.

23               MR. KASS:  Finally, are there any

24    restrictions on access to drugs by pregnant

25    women, and if not, do you think there should be a


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 25

 2    distinction in a policy with respect to women?

 3               MS. APOSTOLIDES:  That's an

 4    interesting question and that's not something

 5    that I'm sure of.  But, again, I can very easily

 6    find that out.

 7               I sort of -- that's an issue I haven't

 8    really focused on.  There are people who

 9    concentrate more on this issue who would be

10    better to answer this question.

11               MR. DOYLE:  Dan.

12               MR. MARKEWICH:  I have one question

13    and since I came in in the middle, if it is

14    something you dealt with before I got here,

15    please let me know.

16               I think most of us in this country,

17    and I guess my own views on it are reinforced by

18    what my daughter who spent some time in the

19    Netherlands reported to me upon her return, and

20    now she's off in Belgium.  I think most of us

21    think of the Dutch as more or less an ethnically

22    and religious homogenous society with a widely

23    common world view.  That may be an exaggeration,

24    but I think we think that way.

25               You gave us certain statistics on drug


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 26

 2    use and abuse.  Are there statistics as to drug

 3    use and abuse in the Netherlands by ethnic and

 4    religious groups that are outside the Dutch

 5    mainstream?  And if so, are those statistics

 6    markedly different from those inside the Dutch

 7    mainstream ethnically and religiously?

 8               MS. APOSTOLIDES:  I don't know about

 9    religiously.  In terms of immigrants --

10               MR. MARKEWICH:  Well, all right.

11               MS. APOSTOLIDES:  Immigrants both

12    legal and illegal, there is more use than among

13    the native Dutch population.  I don't have those

14    statistics with me, but I do have them.  They are

15    very easy for me to get access to them.

16               There is greater use.

17               MR. MARKEWICH:  Does that tell you --

18    and I don't wanted to oversimplify either -- but

19    does that tell you that just maybe because of the

20    difference between American society and Dutch

21    society in terms of our being such a diverse

22    country with so many diverse ethnic, religious,

23    et cetera, groups, that the Dutch experience in

24    many respects is itself outside of the confines

25    of what would be likely to occur in American


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 27

 2    culture if drugs were decriminalized?

 3               MS. APOSTOLIDES:  No.  What it tells

 4    me is that poverty and drug use are very linked.

 5               MR. MARKEWICH:  Maybe that's a similar

 6    answer, actually.

 7               MS. APOSTOLIDES:  But I think that's

 8    sort of separate from the harm-reduction approach

 9    to drug use.  In other words, it may be that in

10    pockets of poverty in this country there is

11    greater drug use, as it is in the Netherlands,

12    but that doesn't mean that approaching those

13    pockets with a sort of public health as opposed

14    to criminal justice instead of building more

15    prisons, having these mandatory minimum

16    sentences, saying to people, okay, let's deal

17    with this on a medical level as well as a social

18    level.

19               I mean I don't see where that could be

20    precluded by, you know, the fact that certain

21    minorities in the Netherlands use more than the

22    natives.

23               Do you see what I am saying?

24               MR. MARKEWICH:  I certainly do.  But I

25    see no necessary major contradiction between harm


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 28

 2    reduction on the one hand and continued law

 3    enforcement on the other hand.

 4               I think they can be concomitants to

 5    each other, although I don't see that one has to

 6    decriminalize drugs in order to emphasize harm

 7    reduction rather than law enforcement.  That's as

 8    much of a social policy as a legal policy, and I

 9    recognize it may also have a certain amount of,

10    one could say, hypocrisy about it.

11               But one could also say it is not

12    dissimilar if American society or the states or

13    the cities decide to do it that way to the same

14    kind of discretion as the Dutch prosecutors have

15    in treating things even if they are technically

16    illegal.  At least as far as personal drug use is

17    concerned.

18               MS. APOSTOLIDES:  The only comment I

19    would have on that is that there is certainly a

20    role for law enforcement in the drug issue, but

21    that if you deal with larger scale dealers and

22    with trafficking as opposed to with the users and

23    with smaller scale dealers, I think that's a much

24    healthier approach for the people who are using

25    it and also for society.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 29

 2               MR. MARKEWICH:  Okay.  I have no

 3    problem with that at all.

 4               MR. DOYLE:  Let's ask if any members

 5    of the audience have any questions for Ms.

 6    Apostolides.  Why don't you come up and grab the

 7    Mike, and I would appreciate it because we don't

 8    have anyone to bring it to you.

 9               A QUESTIONER:  I'm asking this:  Do

10    the Dutch have any particular policies with

11    regard to cocaine?  What do they do about cocaine

12    since that's one of the hottest problems here?

13               MS. APOSTOLIDES:  Cocaine is not as

14    much of a problem in the Netherlands as it is

15    here.  Often times it is people who -- it is

16    co-drug users.  People who use heroin as well as

17    cocaine, so they often come to the realm of the

18    methadone maintenance treatment systems.

19               So there the Dutch experience isn't

20    exactly parallel to the American one.  Although I

21    think the person to speak to on this would be

22    Peter Cohen of the University of Amsterdam.  He

23    would be much more conversant than I would.

24               MR. DOYLE:  Any further questions?

25    Yes, sir.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 30

 2               A QUESTIONER:  Just one of the many

 3    things I was thinking about asking is, what do

 4    you think about the principle of expediency?

 5    First of all, have you had any thoughts about its

 6    compatibility with the law in any of the United

 7    States?  And second, whether anybody there has

 8    ever used this principle of expediency for

 9    personal gain, to gain leverage over some people?

10               MS. APOSTOLIDES:  The second half of

11    the question, I really wouldn't know, although I

12    would like to think not.  This has been a part of

13    the Dutch sort of legal code for centuries.  So I

14    wouldn't think so.

15               I don't think there is an exact

16    parallel to the U.S. legal code.  But, again, I'm

17    not a lawyer.  So I don't know that I would be

18    able to answer that question.

19               MR. DOYLE:  We have some time for one

20    more question.  Yes, sir.

21               A QUESTIONER:  Hello.  It was my

22    impression that in some ways the coffee shop

23    system in the Netherlands was based on a

24    reinterpretation of the Gateway theory of regular

25    drug use, i.e., drug users progressed through


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Apostolides                 31

 2    initiation to rely on two dependents.

 3               I was wondering whether you have any

 4    information on the philosophy what role the

 5    Gateway progression is deemed to have any

 6    legitimacy in Dutch drug policy?

 7               MS. APOSTOLIDES:  The Gateway theory

 8    is something that's been debated, I think, more

 9    in America recently than in the Netherlands.

10               But there is definitely a separation

11    between soft and hard drugs, and that would sort

12    of in a way -- it is kind of like the Dutch do in

13    some ways, buy into the Gateway theory, although

14    that's been pretty much disproved by Lindsay

15    Marie and John Marie.

16               Basically, the the Gateway approach

17    stipulates the hard drugs and soft drugs.  So

18    drugs which pose an acceptable risk can be more

19    accessible and people won't have this need to go

20    on to other drugs.  And there is also very strict

21    policy on no sale of other drugs in coffee shops

22    and that's pretty much it.  But they don't

23    actually have the term the Gateway theory.

24               MR. DOYLE:  All right, thank you very

25    much.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       32

 2               (Applause)

 3               MR. DOYLE:  Our next witness is Judge

 4    Robert Sweet.

 5               Judge Sweet is a member of the United

 6    States District Court for the Southern District

 7    of New York, where he has served for a number of

 8    years with great distinction.  He has devoted a

 9    significant amount of his time to work here at

10    the Association on drug policy.  For a number of

11    years, he chaired our committee on drugs and the

12    law before Kathy Rocklen, our present chair, took

13    over.

14               In that capacity he worked very, very

15    closely with members of the committee and with

16    the public in dealing with drug policy issues,

17    and he is well known throughout the country as a

18    very leading expert and spokesman in this area.

19    He has been a Deputy Mayor of the City of New

20    York.

21               And we very much appreciate your

22    joining us this morning, Judge Sweet.  Thank you.

23               JUDGE SWEET:  John, a delight.  What

24    fun it is to be back with all of you, even the

25    court reporter, who is a good friend, and to be


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       33

 2    in this glorious room.

 3               You know, I wish Stimsom were here

 4    today because I have a profound belief and

 5    conviction that if he were here he would be

 6    somewhere within the confines of the position

 7    which I take.

 8               I think this committee and the

 9    Association really should be proud of the

10    position which they have taken.  It is probably

11    one of the best thought-out positions, and this

12    is certainly one of the most prestigious

13    associations that have swung into this issue and

14    dealt with it on a rational, coherent basis.

15               I am delighted to see you all again.

16    I think all of you know by one way or another my

17    views on this subject, and I guess they are not

18    too startling today.  Though, at the time when I

19    first took the position it was a little bit more

20    exciting perhaps than it is now.

21               I think that this Association and this

22    committee are doing exactly the right thing,

23    because the root problem which we have is public

24    apathy and ignorance and the acceptance of a

25    mythology on this subject, which is not grounded


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       34

 2    in fact.

 3               I hope that these proceedings will be

 4    honestly discussed, well-reported and that way

 5    we'll illuminate and shape public opinion, both

 6    here in the city and throughout the country and

 7    give us an opportunity to reevaluate our public

 8    policy toward drugs and toward each other.

 9               Hopefully, these hearings are going to

10    reaffirm President Kennedy's statement that

11    "Change is the law of life."

12               Now, I have a prepared statement which

13    I will submit to the committee, both to save you

14    time and also to spare you the agony of having

15    heard what I have said in an earlier point.  I

16    will just try to shorthand some of those

17    statements.

18               I re-examined my position on this

19    issue, having been an Assistant United States

20    Attorney, a Deputy Mayor of the city, a sitting

21    district court judge, as well as a practicing

22    lawyer every now and then, and I had accepted

23    conventional wisdom on drugs and did not

24    challenge the criminal prohibition until in 1988,

25    faced with a mandatory minimum sentence of a


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       35

 2    young fellow, a young Puerto Rican who had no

 3    prior record, I was -- because of the

 4    circumstances of that arrest and that plea -- I

 5    was forced to impose the 10-year mandatory

 6    sentence.

 7               It seemed so unjust to me at the time

 8    that it challenged, made me challenge the

 9    proposition of the drug laws and the criminal

10    prohibition against drug use.

11               I spoke to people, some of whom have

12    testified before you, Dr. Nadelmann, and tried to

13    figure out what was wrong with our present

14    policy, and then expressed my views on the

15    subject.  That was sort of an exciting period and

16    it included a petition for my removal and

17    censure, and a few other things.

18               Also, I had my five minutes of fame --

19    Warhol had 15 -- but I had only five minutes and

20    appeared on national television and did things

21    like that.

22               Over the last five years it has been

23    an interesting journey on this issue and today,

24    of course, is one of the high points, because of

25    the nature of this Association and this


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       36

 2    committee.

 3               Obviously, our present policy has

 4    failed.  I'm sure you know the statistics, and

 5    they are in my prepared remarks.

 6               The bottom line is that despite the

 7    fact in the last 10 years the number of drug

 8    offenders in jail have increased nine times.  It

 9    is quite clear that the problem has not

10    diminished nine times.  In fact, the problem

11    being the use of drugs remains relatively

12    constant.

13               One can get into an argument with

14    respect to a particular drug at a particular

15    moment, but consistently I think there are

16    roughly 6 million Americans who are involved with

17    drug prohibition -- I mean the use of drugs and

18    maybe 2 million of those have serious problems.

19    And at the same time we have spent over $500

20    billion in the last 20 years to deal with this

21    problem.  And we have not solved it.

22               There is episodic violence on the

23    streets.  Much of the statistics in New York

24    indicate over 80 percent of the drug-related

25    crimes are turf related, systemic, and I think


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       37

 2    that's a by-product that indicates the failure of

 3    the system.

 4               Why?  Why hasn't all of this worked?

 5    I think it is relatively simple.  To crib from

 6    George Stephanopoulous, "It's the money, stupid."

 7    There is so much money involved in this traffic,

 8    because of the illegality, that it cannot be

 9    stopped.  And when I say it cannot be stopped, I

10    think that's a statement of fact.

11               I was on the West Coast recently and

12    was told about that warehouse in Los Angeles

13    where the amount of cocaine was staggering.  It

14    was reported in the press, and I have forgotten

15    how many millions, I think $20 million worth of

16    cocaine.  But that fact simply indicates that the

17    money is such that people will go to any length

18    to be sure that there is distribution.

19               The economists tell us that the rate

20    of increase is about 200 times.  By that I mean

21    the cost of the drug in Columbia and the cost of

22    the drug retail on the streets in New York, and I

23    have had cases where those numbers have been

24    verified.

25               This is, as the New York Times in 1990


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       38

 2    said, one of America's major industries and it is

 3    the money that is driving it.

 4               So, obviously, let me just also say

 5    that the fact that we have almost a million

 6    people in jail in this country, higher than any,

 7    proportionately higher, than any of the western

 8    nations by a substantial degree, three, four,

 9    five times as many proportionately, indicates

10    that this punitive policy just doesn't work.

11               Well, what to do?  A proposal for

12    change?  I think the first thing to do is to

13    recognize that this problem in its entirety is a

14    health problem.  That mind-altering substances

15    are a part of modern life.  They have to be

16    understood and ameliorated, and not prosecuted

17    and prohibited.

18               If we can change American habits with

19    respect to smoking, which of course deals with

20    tobacco which is a much more addicting drug than

21    any of the drugs that are illegal, and that

22    tobacco which kills 400,000 people a year in this

23    country, if we can cut that usage, as we have by

24    about 50 percent, through education, there is

25    absolutely no reason why we cannot, in my view,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       39

 2    accomplish very much the same thing, the same

 3    approach with respect to the presently

 4    prohibitive drugs.

 5               Marijuana has beneficial medical uses.

 6    There is really no dispute about it.  Glaucoma,

 7    multiple sclerosis, cancer, those things are

 8    clear.  Also it is obvious that needle exchange

 9    is the appropriate way to handle addicts, with

10    the idea, obviously, of trying to assist in the

11    reduction of AIDS.

12               So I think what we should do is to

13    educate and treat it as a medical problem.  The

14    National Academy of Sciences, I'm sure, has been

15    reported to you.  You observed it yourself in

16    September and approved the use of needle

17    exchanges.  That's moving toward the

18    harm-reduction policy that Marianne just

19    discussed with you.

20               So, I think drugs should be treated

21    the same as alcohol, barred from use by minors,

22    from advertising, should be taxed, should be

23    legal, should not be underground, and as with

24    alcohol, anybody who harms others or is a threat

25    to others as a result of the influence of drugs


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       40

 2    should face criminal sanctions.

 3               We should recognize the responsibility

 4    for conduct is an individual matter.  That

 5    societal decrees can be effected only if they

 6    accord with the mores of society.

 7               I remember hearing Whitney Seymour,

 8    one of the -- I don't know whether he would like

 9    to be referred to as a pillar or not -- but

10    certainly one of the rocks upon which this

11    Association was based, always quoting Lord

12    Mouton.  I never could locate where he found Lord

13    Mouton's quote, although I did track down

14    something, so that I think I can say that his

15    view, that is, Mouton's and Seymour's both, is

16    that "The test of a civilized society is its

17    compliance with the unenforceable."

18               What we have to do is change people's

19    minds on this.

20               Now, I also think that beside the

21    practical elements that I have tried to discuss,

22    I think also that there is a basis in the law, in

23    our constitutional thinking on this subject for a

24    change in policy.

25               The framers of the Constitution were


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       41

 2    obviously committed to a theory of natural law

 3    and natural rights stemming from John Locke, and

 4    they developed this in their own writings and

 5    explicitly acknowledge that individuals possess

 6    certain inalienable rights, not enumerated in the

 7    text of the Constitution and not contingent upon

 8    the relationship between the individual and the

 9    federal government.

10               What you have to do to determine what

11    those rights are is to determine the

12    fundamentality of the rights.  In Griswold,

13    speaking of the right of privacy, Justice

14    Goldberg required the court, in his language, to

15    "Look to the traditions and collective conscience

16    of our people and to the emanations of specific

17    constitutional guarantees and experience with

18    requirements of a free society."

19               When a particular right has been

20    narrowly defined as, for example, right to

21    possess and spoke marijuana or cocaine, the

22    courts have consistently refused to recognize it

23    as one which is fundamental.  But if you cast it

24    as a right to ingest substances, or even in more

25    general terms, as a right to self-determination,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       42

 2    a right logically and practically related to the

 3    right to privacy, a right to self-ownership, if

 4    you will, a right to recreation, perhaps a more

 5    coherent argument can be made for the proposition

 6    that the right to ingest consciousness-altering

 7    substances has a constitutional foundation.

 8               Of course, there is a historical

 9    basis.  The right to be free from government

10    interference with respect to the manufacture,

11    possession and use of drugs, which was the case

12    in this country since its founding and up until

13    the early part of this century.  So I think there

14    is a sharp line that can be drawn between

15    government and the individual, and I quoted Izia

16    Berlin's views on that subject.

17               Now, what's the argument or what's the

18    antithesis?  What's wrong with what I have just

19    tried to briefly advance?

20               Of course, one of the propositions for

21    change has to be bottomed on our history with

22    prohibition.  Our failure to regulate through

23    criminal prohibition of a mind-altering

24    substance, namely, alcohol.  All of us are

25    familiar with that.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       43

 2               The statement is frequently made that

 3    we're sending the wrong message by talking the

 4    kind of -- excuse the expression -- talking the

 5    talk that I have just enunciated.  I don't think

 6    wrong messages is the correct analogy.  What

 7    we're doing is to say that everybody has to

 8    determine their own individual code of behavior,

 9    and I think the true message of our present laws

10    is that the drug laws are ineffective and that

11    they are discriminatory and the facts of the

12    discrimination are set forth in the statement.

13               Also, it is frequently said, drugs

14    made legal, no longer are subject to criminal

15    prohibition, will expand the use of drugs.  Of

16    course, nobody knows the facts.  Parenthetically,

17    it would be good if we could in some fashion in

18    this country define, delineate an experiment

19    which might in some fashion test that thesis.

20               In fact, the best studies on alcohol

21    use before, immediately after, during and then

22    finally after Prohibition was eliminated would

23    indicate that this is not necessarily true.

24               There was a drop after the initiation

25    of Prohibition in 1917.  Parenthetically,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       44

 2    obviously by definition, it is very hard to get

 3    meaningful statistics on this sort of thing.  The

 4    students, the best study I have seen on it by

 5    Mersky and somebody else, I forget who the other

 6    person is, were really based on hospital

 7    admissions and liver problems, that sort of

 8    thing, not annecdotal, and, of course, no surveys

 9    at the time.

10               In any case, their conclusion was that

11    the best evidence was there was a drop in usage

12    shortly after the adoption of Prohibition, then

13    came back to about the same level that alcohol

14    consumption was before Prohibition, remained at

15    that level after Prohibition was terminated,

16    after the country finally realized that the

17    system didn't work as it hoped they will with

18    respect to drugs, and only sometime thereafter

19    did it increase not to a substantial degree but

20    an increase.

21               So I think also 10 states

22    decriminalized small amounts of marijuana in the

23    70's and there is no evidence of an increase of

24    use during that time.  And you have just heard,

25    very ably presented about what the situation in


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       45

 2    the Netherlands is.  So what can we expect?  I

 3    think there may be change in the air.  One would

 4    hope so.

 5               There is good writing on the subject.

 6    Steven Dukes, America's Longest War, your own

 7    report, which I think is solid and constructive

 8    and the Rochester Bar Association has taken a

 9    position and, of course, the writings of Ethan

10    Nadelmann.

11               A Baltimore grand jury has concluded

12    that our present policy is not effective and that

13    a treatment program should be adopted by this

14    society.

15               So I think there is a possibility of

16    change.

17               Now, that's briefly stated what I have

18    submitted to you.  I would like to sort of share

19    with you some of the thinking that has evolved in

20    my mind ever since 1989 when I first got into

21    this controversy, if you will.

22               In those days it was a drug war.  It's

23    useful to note that Lee Brown who is obviously

24    the administration's point man on this issue

25    today no longer refers to it as a drug war.  And


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       46

 2    I think that's a very useful step, because the

 3    war analogy is "us against them," where the

 4    reality is, as we all know in Pogo's terms, "We

 5    have met the enemy and they is us."  It isn't a

 6    war in any accurate sense.

 7               I think also we are beginning to learn

 8    perhaps that the demonology involved is unsound.

 9    The crack baby demonology.  Everybody, when I

10    first took this position and found myself on

11    national television, I was asked if I had visited

12    the crack babies in Bellevue?  Well, I hadn't.

13    And I didn't know then of the studies which would

14    now permit me to say -- and it wouldn't have been

15    a useful experience anyhow, because there is no

16    clinical, solid evidence -- that crack, the

17    condition of crack babies results from the

18    ingestion of crack by the mother when compared to

19    all of the other constellations which are

20    present.  Obviously diet, alcohol, the whole

21    series of things.  The crack baby is really part

22    of the demonology.

23               I think when the National Academy of

24    Sciences begins to move into this field and takes

25    the position that they have with respect to


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       47

 2    needle exchange, of course, they are just going

 3    back to a 1982 position which the National

 4    Academy took with respect to the ending of the

 5    criminal prohibition of marijuana.  So I think

 6    that there is something happening.

 7               I think also there is a possibility

 8    that this new attitude in Washington, the

 9    dominance of elimination of waste and so on,

10    sooner or later the wandering spotlight of public

11    attention may focus on the costs of the drug war

12    and the expedience of what we're doing.  If that

13    happens, I think we could expect change.

14               Also it is interesting in the '94

15    crime bill there was a provision for a commission

16    to study violence and the use of drugs in this

17    country.  In Congress there was delineation of

18    how the members of the commission would be

19    selected, et cetera, et cetera.

20               Of course, needless to say, Congress

21    in its infinite wisdom failed to provide any

22    money for this undertaking.  So nothing was done.

23    But the fact that it is out there and that

24    Congress has at least nodded to the idea that

25    there ought to be a study, that there ought to be


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       48

 2    rational thought on the subject, although I'm

 3    sure not many of them would agree with my

 4    position at the moment, but the proposition that

 5    it is debatable, that it is discussable, that it

 6    is significant, I think is a positive one.

 7               In terms of this debate and in terms

 8    of some kind of focus on the problem, it does

 9    seem to me that we're moving forward.

10               I think the cities are going to be

11    increasingly important because it is the cities

12    that are suffering the most, and it is the cities

13    that, hopefully, will press the hardest to move

14    toward a health treatment rather than a punitive

15    treatment.

16               I think all of us can gather a great

17    deal -- those of us who feel as I do -- a great

18    deal of relief and pride in the fact that Curt

19    Smoat was reelected as mayor of Baltimore when

20    his position on treating drugs as a health

21    problem was an element in the campaign.

22               Finally, it seems to me that the

23    fundamental problem here is that drugs are one of

24    those defining elements in American society today

25    and what we have to do is, what has to be done,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       49

 2    we have to achieve some paradigm shift.  We have

 3    to move from a position where government is

 4    responsible for the solutions of our society to

 5    one where the individual is responsible.  And to

 6    move this line of appropriate conduct and

 7    societal mores away from Congress and into the

 8    laps of each one of us.

 9               "Ask not what your country can do for

10    you but what you can do for your country," and it

11    is that sense that we have to get back to, I

12    think.  What we need now is an openness of mind,

13    a return to altruism, to a concern for each other

14    and, in a sense, though it may sound, sitting

15    here in this city under these circumstances, a

16    bit silly or inappropriate, but I really think we

17    need a return to the pioneer spirit, where we

18    recognize that we are a free people and that we

19    can remain this way only if we help each other.

20    In other words, altruism and the end of an

21    attitude which says "it is not my job."

22               This reform, which has been advocated

23    by others as well as myself and had been

24    advocated by the committee, I think this reform

25    is, as I say, a terribly important one in terms


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       50

 2    of the American psychology and the American

 3    society.  And it is just a particular issue

 4    which, if we face it honestly will bring us back

 5    to our basic roots, I believe.

 6               And I thank you for the opportunity to

 7    be with you again.  I'm sure I haven't told you

 8    anything that you don't already know and better

 9    than I, but it has been a delight to be with you

10    and if I could answer a question, I would be both

11    surprised and pleased.

12               MR. DOYLE:  Thank you very much,

13    Judge.

14               (Applause)

15               MR. DOYLE:  Why don't we go through

16    our panel in the same order.

17               Agatha, do you have a question?

18               MS. MODUGNO:  Yes.

19               I have obviously thought that one

20    reason that drug policy has been so focused on

21    crime in the court system because it is easier to

22    obtain funding to jail and kill people than it is

23    to get funds for treatment and education.  And I

24    wonder in this world of decriminalization where

25    you have one million people, now prisoners, who


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       51

 2    will be roaming the streets as homeless and

 3    uncared for, do you really think that this is

 4    better than -- I mean to say -- the alternatives

 5    are either criminalization or sort of a homeless

 6    and itinerant population of incapable people.

 7               JUDGE SWEET:  Really, I think your

 8    premise is right.  The war on drugs is a

 9    simplistic solution.  To penalize, the heavier

10    the penalty, the less use there will be, and this

11    exercise of individual cases will be stamped out.

12               Well, I mean realistically, we know it

13    is not true.  It doesn't work.  It didn't work in

14    Prohibition, it is not going to work now.  It is

15    a simplistic, appealing proposition unless you

16    think about it.

17               I think if the American people think

18    about it they are going to realize that the

19    risks, if there are risks, of these let's say

20    million -- of course, the million are not all

21    involved in drugs; to be generous, say half a

22    million, 600,000, something like that -- involved

23    in drugs, and let's assume they are all released,

24    would there be a change in our society?  Frankly,

25    I think not.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       52

 2               I think that those drug crimes by and

 3    large are the result of the economic factors and

 4    so -- and I think if we approach this and said,

 5    "We're spending" -- pick your number -- "20

 6    billion a year on enforcement, which is not

 7    successful, and we're going to take 10 million

 8    and apply that toward education and health, I

 9    think we would find that this society worked

10    better."

11               It is interesting to me that judges

12    seem to be into this issue.  As you know, here in

13    New York, assuming that across the river is part

14    of New York, Jack Weinstein has adopted this

15    view, John Curtin up in the Northern District

16    has, Whit Knapp, Warren Edgington in Connecticut,

17    Louisiana Don Walter, Florida James Payne -- I'm

18    sure you noticed Posner's Circuit Court position

19    with respect to marijuana -- Vaughn Williams in

20    the Northern District of California.

21               Why is this?  Now, I think one reason

22    is, obviously, the people that I have mentioned,

23    except for Jim Bray in California, who is a state

24    court judge, are all protected by the

25    Constitution, and therefore are free to speak.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       53

 2    But just as you have indicated, those people who

 3    have this experience with the punitive

 4    legislation and punitive approach have spoken out

 5    and have taken the position that it just doesn't

 6    work.

 7               So, I frankly think our society would

 8    be healthier and function better if these reforms

 9    were adopted.

10               MR. DOYLE:  I am going to now go to

11    the other side of our panel, and I'll point out

12    that Judge Sweet could clearly be kept here all

13    morning by many of us, so I am going to ask each

14    person to limit themselves to one question or

15    perhaps a follow-up.  With that, I will pass

16    along first to Steve Kass.

17               MR. KASS:  You said that because you

18    saw I had written down three questions.

19               Like so many others, I would like to

20    express a real appreciation for what Judge Sweet

21    has done in this area.

22               I'm interested in 1 1/2 questions, if

23    I may.  First is a follow-up to what you just had

24    been talking about, and for me it is one of the

25    more or most dismaying figures I have seen in a


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       54

 2    very long time.  It is not just a million people

 3    in jail, it is that figure we saw in the Times a

 4    week ago or two weeks ago, one-third of our

 5    African-American men are under the supervision of

 6    the criminal justice system.  That's utterly

 7    astounding.

 8               To what degree, I wonder, is that

 9    related to this issue.  Why would opponents to

10    your call for a new approach have suggested,

11    along with Congressman Rangel, that the current

12    policy is needed to protect the minority

13    community?

14               I wonder what your thoughts are on

15    that and whether you have any idea as to what

16    number of that percentage of that one-third are

17    there because of drugs?

18               JUDGE SWEET:  I'm reminded of a speech

19    by Lanie Guinere at the New School at which she

20    said, "Don't ask, don't tell," and what we're

21    talking about now is discrimination, and it is

22    ugly, I think, and rather frightening.

23               The fact is that -- I believe the fact

24    is that the drug laws are discriminatorily

25    enforced because that's easier, it is less


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       55

 2    controversial and it plays into the mitt in

 3    America of an underclass which is primarily a

 4    black underclass.  These are not attractive

 5    considerations.

 6               There is a study recently, an article

 7    recently written by Dawn Daye and she concludes

 8    based on the statistics which she had available,

 9    this is in a 1995 article, that of those who are

10    drug users and arrested for drug possession, 3

11    1/2 times as many blacks as whites are arrested.

12               Now, I think it is part of the

13    simplistic idea that if you have a criminal law

14    and you enforce it, you will eliminate the

15    problem.  And it has got a double whammy as far

16    as drugs are concerned, because the easy

17    enforcement is against the blacks.

18               Putting it differently, is there a

19    different rate of usage between blacks and

20    whites?  I would suggest that a careful study of

21    the figures would indicate no.  Between poor and

22    rich, yes.  Blacks and whites, I think not.  But

23    that's not the way the arrest statistics read.

24               So that drives you to the conclusion

25    that the coloration of the problem results from


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       56

 2    the arrests, not from the inherent usage by the

 3    population.  And, of course, that also drives you

 4    into the issue of, well, why?  Why does anybody

 5    want to use mind-altering substances?  I mean I

 6    don't know about -- well, I do know about some of

 7    you, but I don't know about all of you.

 8               I know that some of you use

 9    mind-altering substances on a relatively regular

10    basis, not drugs, but alcohol, and it is part of

11    our society.  And, sure, it can be a problem and

12    the rate of addiction for all these mind-altering

13    substances is maybe around 15 percent, the best

14    figure that I have been able to come up with.

15               So why is it that people like Rangel

16    said that there is this terrible risk that the

17    people in the black community will be decimated

18    if this reform is accomplished?  I think it is

19    realistic.  I think that the reason for usage is

20    loss of hope, it is a feeling of disconnection

21    with the society, it is obtaining a satisfaction

22    from an artificial source rather than from

23    achievement, from job, whatever.

24               And I think that if you address the

25    root causes of the dissolution of the loss of


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       57

 2    hope, it is not a black/white thing.  It is a

 3    question of those who are deprived in the

 4    society.

 5               Now, of course, what we recognize is

 6    that many of -- I saw, I think, in the Times

 7    yesterday or today -- that the rate of blacks

 8    admitted to colleges now is approximately equal

 9    to their rate -- to their percentage of the

10    population, something like 12 percent, something

11    like that.  Well, that's a very optimistic

12    statistic, and I think this is not a ghetto

13    problem.  It is a human problem, and it is a

14    problem of those who are deprived economically

15    rather than disadvantaged or affected by skin

16    color.  That's my view.

17               MR. DOYLE:  Dan?

18               MR. MARKEWICH:  No.

19               MR. DOYLE:  Let me introduce Kathy

20    Rocklen who is the chair of our committee.

21               MR. MARKEWICH:  By the way, thank you,

22    Judge.

23               THE CHAIR:  I will ask one question

24    that I have asked a number of the witnesses,

25    which is, how do we deal with the perception


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       58

 2    about what we tell our children?  How do we

 3    distinguish between legalization and

 4    legitimization?

 5               JUDGE SWEET:  I think what you do with

 6    your children is to develop -- well, first of

 7    all, obviously, do no harm to others that's a

 8    moral code.  On a practical -- well, let me back

 9    up.

10               I had kids in the '60s here in this

11    city.  I did not know what was going on.  I had

12    absolutely no clue.  All of my children were

13    experimenting with drugs and so were their

14    contemporaries.  And as a parent, perhaps these

15    were the days when I was working for the City,

16    and perhaps I was just oblivious or perhaps I

17    just chose to ignore what I should have seen or

18    whatever.  Now, that's a far -- I would suggest

19    that the parent that relies on "Don't do it

20    because it is illegal," is in effect copping out.

21    That parent is just simply saying, "Well, there's

22    a great big power in the sky, and they said it is

23    a bad thing, so don't do it."

24               The reality is that children should be

25    taught that there are dangerous elements in life,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       59

 2    all kinds of things.  Don't cross the street

 3    against the light, you might get killed.  Don't

 4    get involved with drugs, it may cause you harm of

 5    one kind or another.  So it is, it seems to me,

 6    that this is no more than teaching children a

 7    sensible, appropriate way to behave in life.

 8               The moral aspect of it, I think, is

 9    that you should be responsible for what happens

10    to you, what you put in your body, what you do.

11    You are responsible, not Congress.  And,

12    therefore, the children should be taught that

13    certain things are, you teach them don't drink

14    iodine.  So I don't see this as a legitimizing

15    factor.  I don't see that there should be any

16    difference in the treatment, the education of

17    children with respect to drugs as there is with

18    respect to alcohol.

19               Parenthetically, we're a lot less

20    honest about that than we should be.  So I guess

21    what I am saying is that the morality of it, the

22    legitimacy of it by society is neither here nor

23    there.  What is significant is the responsibility

24    of the individual for his own or her own

25    existence.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       60

 2               MR. DOYLE:  I can see that we also

 3    have considerable interest in the audience for

 4    questions.  What I am going to do, because of the

 5    time constraints, since we have a number of other

 6    witnesses is take three questions from the

 7    audience.

 8               Why don't we start with the gentleman

 9    in the back.  If you could come up and get the

10    Mike, I would appreciate it.

11               A QUESTIONER:  Hi, Judge.  Yesterday

12    the special narcotics prosecutor was here, Mr.

13    Silbering, I think, and one of the things he said

14    was, if drugs were decriminalized, that any

15    regulation at all would continue the black market

16    situation relative to minors and that there would

17    be no lessening of the congestion in the courts

18    because of that, and that's one of the harms that

19    decriminalizers look to.  I was wondering whether

20    you would comment on that.

21               JUDGE SWEET:  First of all, he doesn't

22    know any more than I do.  And we're both making

23    an estimate.  I think the appropriate analogy is

24    alcohol and the enforcement -- well, two things.

25    The appropriate analogy is alcohol and the


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       61

 2    enforcement of the distribution of alcohol to

 3    minors.

 4               The second thing is if you were, if

 5    drugs were operating at a market level, it would

 6    then eliminate to a very substantial degree the

 7    effort to involve the young, to hook the young at

 8    the outset, because the money would be out of it.

 9               So, sure, there is bound to be some

10    problem because some people will try, kids will

11    try, maybe even, but the dollar motivation would

12    not be there.  So I don't think it would be a

13    substantial problem.

14               As I say, I think what drives this,

15    what drives the dealers into the schoolyards is

16    money, and if that were gone, then I think you

17    would have a different result.

18               MR. DOYLE:  All right, Eleanor.

19    Eleanor Piel is a member of our committee.

20               MS. PIEL:  Your Honor, some months ago

21    you addressed a group at the Fortune Society.

22    The Fortune Society, as you know, is composed of

23    ex-offenders, mostly people of color, who have

24    gone through the criminal justice process, have

25    been incarcerated and come out, many of them


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       62

 2    there because of drug problems or whatever,

 3    connected with drugs.

 4               I was very surprised you were not

 5    received warmly in the sense that people did not

 6    agree with your ideas.  There was this prevailing

 7    sense that drugs, that the use of drugs is wrong,

 8    therefore, the laws are right even though these

 9    were the victims of the laws.

10               Now, have you given any thought, and I

11    would like to be helped on it, since I'm on the

12    board of the Fortune Society, what kind of

13    arguments can you make that would register with

14    regard to the people who are the victims of our

15    drug legislation and enforcement that would be

16    persuasive?  Because here are people who should

17    have a voice and should, it seems to me,

18    logically take your position and yet they don't.

19               JUDGE SWEET:  I certainly well recall

20    the evening and there were, as you remember, some

21    who understood what I was saying and who agreed

22    with it and argued that the money was the

23    controlling factor in terms of the usage and what

24    caused the problem.  So I think there is an

25    element of understanding there.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       63

 2               I think perhaps the best way you can

 3    tackle it -- drug use is not the problem in our

 4    society.  It is that we don't care enough about

 5    each other.  The problem is not using drugs, it

 6    is the problem of not having jobs, education, et

 7    cetera, et cetera.

 8               And I think if those who have fallen

 9    into that trap of hopelessness and resort to

10    these artificial means, if they could understand

11    that, what drug use was -- it might just as well

12    have been alcohol, it wouldn't make any

13    difference.  In fact, it would be interesting to

14    know, parenthetically -- I don't know how you

15    would find it out -- among the disadvantaged what

16    is the drug of choice.  I bet you it is alcohol.

17    And that also came up, that evening.

18               So maybe the only way you can do it is

19    to say, look, don't get fixed on the drug use or

20    on drugs as being the problem.  That's not the

21    problem.  The problem is that the society has

22    given some people a very hard case to solve and

23    you have to focus on that, not the drugs.

24               That's all I can think of.  Whether

25    that would work or not, I don't know.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       64

 2               MR. DOYLE:  Yes, sir.

 3               MR. ADLER:  Good morning, Judge.

 4               JUDGE SWEET:  Hi.

 5               MR. ADLER:  In reading this report

 6    which was very refreshing.  The one issue that I

 7    took with it, I would like to raise with you if I

 8    may.

 9               It seemed to depict a judiciary which

10    is fighting a rear guard action valiantly against

11    the excesses of law enforcement, and one of the

12    concerns that I had is that among the greatest

13    injury to our society is the abdication of the

14    judiciary, the federal judiciary and the

15    appellate level in particular, with regard to the

16    historic, almost sacred responsibility to

17    preserve the Constitution for another generation.

18    It seems to me, in some respects, it has joined

19    the war, and I wonder if you would comment on

20    that.

21               JUDGE SWEET:  There are a number of

22    articles that had been written on this subject.

23    One title I recall is "The Drug Exception to the

24    Fourth Amendment."  Honestly, I have to say that

25    I think the emotional baggage which this issue


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       65

 2    carries, and that emotional baggage is that we

 3    don't have a problem in this country, what we

 4    have is drugs.  Drugs are the problem.  That's

 5    the problem.  Nothing else.  It is just drugs.

 6               The mythology that the drugs

 7    themselves are the demons, they are forfeitable,

 8    they are evil, all of that, rather than a

 9    realistic understanding that they are but one

10    symptom of a condition and a result of a

11    complicated society, et cetera, et cetera.

12               I think that -- well, let me speak for

13    myself.  I never challenged it until -- I mean I

14    guess I had been on the bench over 10 years.  I

15    never really focused on it myself.  So I can't be

16    too critical of judges who have not seen the

17    problem that you point out.

18               A specific which just really boggles

19    my mind is the, obviously, discriminatory penalty

20    differentiation, differential between crack and

21    cocaine.  Absolutely irrational.  You can't say

22    that that's a rational discrimination.  There is

23    no objective evidence that that's a rational

24    discrimination upon which you can base a 300

25    times more punitive penalty.  It is just not


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       66

 2    there.

 3               Some courts have said so, but -- and

 4    I'm not sure -- perhaps Eleanor or some of you

 5    would know how far it has gone up the chain.  I

 6    believe at the circuit level the discrimination

 7    has been upheld.  I declared the mandatory

 8    mimimums unconstitutional.  Others did as well,

 9    basically, for the same sort of reasons.

10               Will the judiciary be tuned in more?

11    I suppose the answer, I guess, you probably

12    detect that I am phumphering because it is a

13    tough problem.  It is a tough issue.

14               Look, I would like to say that judges

15    are never affected by public attitudes and

16    conventional wisdom and all of that sort of

17    stuff.  But the fact is that they are affected.

18               Now, I think if we had a national

19    commission and we had a real honest, straight-out

20    factual display of the problem on both sides,

21    then I think judges would begin to understand

22    that it is more complicated than they think.  I

23    think they tend to shrink and say, well, yes, the

24    bus stop exception, Fourth Amendment.  You get on

25    a bus and you're shaken down because you look


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       67

 2    like something.  Now, is that right?  We all know

 3    it is not right.  And yet that's upheld.

 4               I think also there is a sense of,

 5    well, it is drugs, and they are drug addicts or

 6    drug dealers, drugs, drugs, drugs, you know, so

 7    maybe it doesn't matter as much.

 8               I think the courts could have been

 9    more aggressive in understanding the

10    constitutional implications.  That's what I

11    think.

12               MR. DOYLE:  Judge, I am going to

13    exercise the chairman's prerogative and ask one

14    question, which is with regard to young people.

15               If we do not make drugs available like

16    alcohol to people, young people, let's say under

17    21, are we not going to have a situation in which

18    there would be a continued market for the drug

19    dealers and the schools and the neighborhoods who

20    would be exploiting that market?  And how would

21    that fit into the model that you have in mind?

22               JUDGE SWEET:  First of all, John,

23    these days you have got to be talking 18.  You

24    have got to look out for that 21, it is worse

25    than you thought.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Sweet                       68

 2               MR. DOYLE:  I stand corrected.

 3               JUDGE SWEET:  Whatever the number is.

 4    Sure, it is really the same question the

 5    gentleman asked a moment ago.  Sure, there will

 6    be some problem, but if drugs are no longer

 7    criminally prohibited except for that group, the

 8    money end of it will be gone.  It won't be as

 9    profitable.

10               There won't be the urge, the dollar

11    reward involved, and so I think what you would

12    find is what you find now, some experimentation

13    by the young and some cooperating institutions,

14    however you set it up, drug stores, whatever the

15    mechanism, who will perhaps violate the law.  But

16    I don't see any reason to believe that it would

17    be of a different dimension than, say, the

18    illegal acquisition of alcohol by minors.  I just

19    don't see why it should be any different.

20               MR. DOYLE:  Thank you very much.

21               JUDGE SWEET:  Great pleasure to be

22    with you.

23               (Applause)

24               MR. DOYLE:  We have found it essential

25    to take about a 5 to 10-minute break at this


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Cohen                       69

 2    point.  So we'll do that now.

 3               (Recess)

 4               MR. DOYLE:  We're going to get

 5    started.  Would everyone please take their seats.

 6               Our next witness is Jay M. Cohen who

 7    is First Assistant District Attorney and counsel

 8    to Kings County District Attorney.

 9               Mr. Cohen.

10               MR. COHEN:  Thank you.

11               I'd like to thank the Association of

12    the Bar on behalf of Brooklyn District Attorney

13    Charles J. Hynes for inviting us to participate

14    in this important and timely program.  Although

15    you have already spent two full days hearing from

16    some of the country's foremost experts in this

17    area, we have a unique perspective about the new

18    directions which our nation's drug policy should

19    take.

20               Several events make the need for new

21    directions more imperative than ever.

22               The first has been little noticed,

23    even within the criminal justice community, but

24    it is a milestone, nonetheless.  The United

25    States Department of Justice reported in


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Cohen                       70

 2    September 1994 that the number of inmates in

 3    America's prisons has topped one million for the

 4    first time in our history.

 5               The second major event was the

 6    election of last November, which leaves no doubt

 7    that the public or at least a majority of the

 8    electorate believes that one million prison

 9    inmates is not nearly enough.

10               Some have read that the election

11    results as a mandate to simply do more of the

12    same anticrime policies of the past, but this is

13    not good enough.  If we are going to keep

14    building more prisons, as we must, then those of

15    us in government owe it to the taxpayers to

16    insure that these additional cells are put to the

17    best use.

18               And we also owe them a criminal

19    justice system that uses every cost effective and

20    intelligent anticrime strategy at its disposal,

21    in addition to prison, so that we are smart -- as

22    well as tough -- on crime.

23               At the same time, other events should

24    cause anyone who is even considering the

25    abandonment of the prohibition against drugs, to


               PIROZZI & HILLMAN  212-213-5858


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 2    stop and think seriously about the implications

 3    of such an experiment.

 4               For example, a recent bill by the

 5    Center on Addiction and Substance Abuse at

 6    Columbia University found that 32 percent of

 7    adolescents surveyed cited drugs as the biggest

 8    problem they faced.

 9               The next biggest problem -- crime and

10    violence in schools -- was named by 13 percent.

11    Two-thirds of these kids said that they would be

12    forced to make a choice about drugs, and more

13    than half of the older kids said that drugs --

14    including cocaine and heroin -- were ready

15    available.

16               Moreover, a federal survey released

17    last September found that teen marijuana use had

18    nearly doubled since 1992, as fewer young people

19    said that trying the drug was a "great risk."

20    Experts cited the increasing glamourization of

21    drug use as a major contributor to this problem.

22               It, frankly, escapes me how removing

23    the legal prohibition against drugs will

24    contribute to the "deglamourization" that has

25    proven to be essential to decreasing drug use,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Cohen                       72

 2    especially by young people.

 3               As another of your scheduled speakers,

 4    Mathea Falco, says in her landmark book, The

 5    Making Of A Drug Free America:

 6               "The drug laws play a critically

 7    important role in this effort to prevent drug

 8    abuse by conveying social values and defining the

 9    limits of permissible behavior.  Realization

10    would signal a fundamental change in American

11    attitudes, implying tolerance rather than

12    disapproval of drug use.  We cannot afford to

13    make this change, and we do not have to.

14               A major shortcoming of the current

15    debate about drugs and drug-related crime -- as

16    exemplified by the focus of these hearings -- is

17    that all too often, it appears that there is only

18    two sides to this debate.

19               The advocates of tougher drug laws and

20    more and bigger prisons and jails for drug

21    offenders on one side, and those who suggest

22    giving up the law enforcement involvement in

23    fighting drugs represents the other.

24               The advocates of even tougher drug

25    laws, including the current majority in Congress,


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 2    often cite studies such as one by Princeton

 3    Professor John Dilulio, which concludes that "the

 4    justice system in the United States is a

 5    revolving door for convicted predatory street

 6    criminals, who serve little time behind bars."

 7    This is one reason, they suggest, that the crime

 8    rate has more than tripled since 1960.

 9               Yet, as you know, the number of

10    federal and state prison inmates has quadrupled

11    since 1973.  New York State has more than tripled

12    its own prison capacity in only 14 years.  Will

13    it take 10 times the number of cells to close the

14    revolving door and reduce crime?  How about 100

15    times?

16               There aren't enough tax dollars to

17    finance that kind of expansion in a correctional

18    system that already costs the nation more than 40

19    billion a year to operate.

20               These same advocates also argue that

21    many prison inmates are repeat offenders who have

22    previously served sentences of incarceration, and

23    who will likely find themselves behind bars again

24    after their release.

25               That may well be a reason to build


               PIROZZI & HILLMAN  212-213-5858


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 2    even more prisons, but there is another way to

 3    look at those troubling facts.

 4               In New York State, drug crimes

 5    accounted for 45 percent of all new admissions to

 6    prison in 1992, and only 11 percent of new

 7    admissions in 1980.

 8               More drug offenders now go to state

 9    prison each year than violent felony offenders.

10               The United States Justice Department

11    recently completed a study of the federal prison

12    system, and found nearly 13,000 low level drug

13    offenders with no criminal history, constituting

14    17 percent of all sentenced inmates.

15               Is it any wonder that "predatory

16    street criminals" do not serve more time behind

17    bars, and more prisons have not meant enough

18    security?  Nonviolent drug offenders are

19    occupying too many cells, and they are returning

20    to their lives of drugs and crime upon their

21    inevitable release, and just as inevitable

22    rearrests for other drug-related crimes.

23               To some, this is cause to make the

24    drug laws even tougher; to others, like this

25    Association's committee on drugs and the law, the


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 2    high cost and insufficient return from

 3    incarcerating drug offenders is an argument to

 4    stop using the criminal laws, at all.

 5               The answer, however, is not to

 6    surrender to the frightening future of legalized

 7    drugs.  And what a violent future it would be!

 8    For example, Dr. Kenneth Tardiff of Cornell

 9    Medical College-New York Hospital, recently

10    studied New York City cocaine related homicide

11    victims, and he concluded:

12               "The drug itself causes people to act

13    violent ... and places themselves in danger."

14               Other studies have found similar

15    results among those who commit murder.  And, we

16    all know that most people arrested in New York

17    and throughout the country, for any crimes, test

18    positive for drugs.

19               Clearly, crime and violence related to

20    drugs exists because of the drugs, not because of

21    the law.

22               An April 1995 report of the United

23    States Advisory Board on Child Abuse and Neglect

24    found that more babies and young children die at

25    the hands of their parents than in car accidents,


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Cohen                       76

 2    fires, falls or drownings.  Violence in the home

 3    is as much a danger to young people as gunfire on

 4    the streets.  And drug abuse, according to this

 5    and other studies, is a major cause of child

 6    abuse and neglect.

 7               If our goal is to save future

 8    generations, how will abandoning the drug war

 9    help?  An again in Mathea Falco's words:

10               "Legalization would have a chilling

11    effect on prevention efforts since it would shift

12    the balance of social approval toward drug use

13    and away from abstinence.  Youngsters are

14    particularly sensitive to what they perceive to

15    be the values of their families, friends and

16    community."

17               Are we ready to embrace a future of

18    even more drug addicted newborns, dysfunctional

19    families, armed dropouts from school and society

20    -- fueled by government sanctioned drug

21    dispensers making drugs more accessible and

22    acceptable -- all in the unjustified hope that

23    some of the violence will stop?

24               We owe our communities, which are

25    struggling to prevent or eradicate the horrors of


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 2    drugs and crime, something much better than that.

 3               To the people in these communities,

 4    especially the poorest, this is not an academic

 5    or intellectual exercise.  It is a daily battle

 6    to keep families together, and they need the law

 7    to back them up.

 8               In Brooklyn we know we can be "better"

 9    and "smarter" on crime without giving up the

10    fight.  Instead, we must make sure that prison

11    and jail cells are put to the best use and, at

12    the same time, give kids a way to avoid the

13    tragic cycle of drugs and crime, and give

14    offenders a way to get out of it.

15               Here is how we are accomplishing this

16    ... one cornerstone of our program is DTAP, the

17    drug treatment alternative to prison.  DTAP is

18    the first prosecution/run program in the country

19    to divert prison-bound, felony drug offenders to

20    residential drug treatment.  Begun in October

21    1990, DTAP targets all drug-addicted defendants

22    arrested in Brooklyn for class B felony drug

23    offenses who have previously been convicted of a

24    nonviolent felony.  If convicted, the defendants

25    face mandatory prison sentences under New York


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 2    State's Second Felony Offender Law.  This

 3    encourages them to enter and remain in treatment.

 4               The District Attorney's Office

 5    carefully screens the pool of candidates, and

 6    those with any history of violence are

 7    ineligible.  Qualified defendants are given the

 8    option to defer prosecution and enter one of four

 9    available residential, drug treatment programs --

10    for a period of 15 to 24 months.

11               Those who successfully complete the

12    strenuous program have the drug charges against

13    them dismissed; those who do not are brought back

14    to court by special warrant enforcement team we

15    have established in the District Attorney's

16    Office, and they are prosecuted on the original

17    charges.

18               To prevent relapse and reduce

19    recidivism, we have formed a Business Advisory

20    Council, which helps defendants who complete

21    treatment find employment, job training and

22    housing.

23               The results so far are extremely

24    encouraging and with the help of the State of New

25    York, other prosecutors are implementing similar


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 2    programs.

 3               As of August 1995, 569 offenders had

 4    entered the Brooklyn DTAP program.  We have a

 5    one-year retention rate of 60 percent, which one

 6    expert recently described as "extraordinary,"

 7    especially when compared with a reported one-year

 8    retention rate of 13 percent for other

 9    residential programs.  172 offenders have already

10    completed the program and had their charges

11    dismissed.

12               One reason is that we have backed up

13    the threat that those who failed to complete

14    treatment will be arrested, prosecuted and

15    incarcerated.  94 percent of the DTAP dropouts

16    have been returned to the court for prosecution,

17    and most have already been indicted, convicted

18    and sentenced to state prison.

19               Perhaps most important, the rearrest

20    rate for DTAP graduates who have been out on the

21    street for six months or more is only 13 percent,

22    as compared with the 40 percent recidivism rate

23    for comparable New York City felony drug

24    offenders who receive jail or prison sentences.

25               Think about this ... the cost of


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 2    residential treatment is 18,000 per individual

 3    per year, as compared to 30-35,000 a year for

 4    prison.  Thus, DTAP has achieved one-third the

 5    recidivism of prison at one-half the cost!

 6               Moreover, our program has freed

 7    hundreds of prison beds for murderers, robbers

 8    and rapists, without the construction of a single

 9    new cell and without giving drug-addicted sellers

10    a free ride.

11               It is already breaking the cycle of

12    drugs to crime to prison - for nearly 200

13    offenders.  They are working or going to school,

14    and many are paying taxes for first time in their

15    lives, instead of draining tax revenues in prison

16    or committing crimes on the street.

17               DTAP demonstrates that we need not --

18    and should not -- abandon the drug laws to

19    achieve the needed results.  In fact, DTAP uses

20    the second felony offender laws to get nonviolent

21    drug addicts to enter and complete the treatment

22    they desperately need.

23               Another cornerstone of our program

24    aims to keep young people from ever needing DTAP.

25               Project Legal Lives brings the


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 2    criminal justice system to Brooklyn's elementary

 3    school classrooms.  Members of the District

 4    Attorney's staff, private attorneys, corporate

 5    volunteers, judges from Supreme and Criminal

 6    Court and teachers work together to teach

 7    students about the law and its role in their

 8    lives.

 9               We spend 10 hours a month throughout

10    the school year, teaching fifth graders about the

11    dangers of drugs and crime, and the horrors of

12    hatred and bias.

13               In the 1994-95 school year, Legal

14    Lives reached more than 10,000 Brooklyn students,

15    and their parents in 330 classrooms.  600 staff

16    members of the District Attorney's Office and 300

17    teachers collaborated on the bi-weekly

18    interactive class work, take-home lessons, a call

19    in radio show on WNYE-FM and mock trials.  This

20    year Legal Lives will expand to 400 fifth, sixth

21    and twelfth-grade classrooms throughout New York

22    City and Long Island, teaching more than 15,000

23    students.

24               Legal Lives is being replicated by

25    district attorneys in Los Angeles and San


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 2    Francisco, California; Springfield and Boston,

 3    Massachusetts; Indianapolis, Indiana; Syracuse,

 4    Utica, Lake George and Albany in New York;

 5    Atlanta, Nashville and New Orleans.

 6               Tough treatment, law-related education

 7    and the swiftest, most aggressive and successful

 8    prosecution of violent and repeat offenders.

 9    This combination represents the first real effort

10    in our county in decades to fight the so-called

11    "drug war" differently.  To stop the inefficient

12    and expensive strategy of relying almost

13    exclusively on prison as the sanction for

14    nonviolent drug offenders.  But at the same time,

15    not to abandon the children and families of

16    Brooklyn to the personal and social tragedy of

17    legalization.

18               Despite what some might think there is

19    reason for hope.  Kings County in 1994 had the

20    largest percentage decrease in murders and

21    robberies of any county in the city.  In fact,

22    Brooklyn had 49,000 fewer robberies, burglaries,

23    assaults and other so-called index crimes in 1994

24    than in 1990.  A reduction of 31 percent that

25    puts us far ahead of other communities around the


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 2    country.

 3               We are using the laws more effectively

 4    to protect our communities.

 5               Also, New York State has taken a small

 6    but significant step toward making better use of

 7    its prison resources, by reforming our sentencing

 8    laws so that violent offenders spend more time

 9    behind bars, while nonviolent drug offenders can

10    get treatment instead of incarceration.

11               Let me close with an illustration of

12    what we can, and in my judgment must, accomplish.

13               Almost three years ago, on December

14    17, 1992, a beloved elementary school principal,

15    Patrick Daly, was caught in an afternoon

16    crossfire in the Red Hook Housing Projects.  He

17    was looking for an 11-year-old child who had left

18    school after an argument.  Mr. Daly took a 9 mm

19    slug to the chest and died on the spot.

20               Three young people, aged 17 and 18,

21    were convicted and have been in prison for this

22    murder for terms of 25 years to life.  The three

23    were high school dropouts who were engaged in a

24    shootout about drugs and who turned the common

25    grounds of the Red Hook housing development into


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 2    a killing field.  All three had been arrested

 3    several times before.

 4               A police officer who patrolled in Red

 5    Hook described life there this way ... "the guy

 6    with the automatic is the guy who runs the show.

 7    And once they have the gun, they use it.  If they

 8    are 'dissed' or if someone moves in on their

 9    territory, they have to prove themselves by

10    shooting someone."

11               Contrast those observations with one

12    of our DTAP graduates, who was quoted in a New

13    York Times article in April of last year.  When

14    he was arrested on drug charges in 1992, just

15    months after a prior drug arrest, he faced

16    several years in prison as a nonviolent, repeat

17    offender.  Instead, he chose DTAP and drug

18    treatment.  Today he is a paid counselor at a

19    drug treatment center.

20               "I may have been arrested," he told

21    the Times, "but I was really rescued."

22               That is something we can all welcome.

23               Thank you.

24               (Applause)

25               MR. DOYLE:  Thank you very much.  Why


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 2    don't we start at the other side of our panel and

 3    work toward the right.  Kathy.

 4               THE CHAIR:  Thank you very much for

 5    your remarks.  The discussion about DTAP was

 6    particularly interesting, and I came in a little

 7    bit late on your remarks, but did you express a

 8    view on mandatory mimimums, particularly in view

 9    of your integration of the mimimums with the DTAP

10    program?

11               MR. COHEN:  We supported the efforts

12    in the state legislature and the governor this

13    year to make some changes in the second felony

14    offender laws.  On the other hand, as I also

15    indicated, as far as DTAP is concerned, one of

16    the -- one of the reasons for the success of the

17    program is that individuals who would otherwise

18    be extremely reluctant to embrace treatment, to

19    go to Daytop or Phoenix House or some other place

20    upstate for an extremely difficult 15 to 24

21    months in order to turn their lives around, these

22    individuals need a very strong incentives to do

23    that.

24               The law as it exists right now gives

25    them that incentive by saying to them you go, you


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 2    satisfactorily complete this program, and we'll

 3    drop the charges.  But if you don't, if you fail

 4    at any step along the way, we're going to

 5    prosecute you.  Because most of these are

 6    relatively simple buy and bust street level drug

 7    cases, we have the ability to prosecute you two

 8    years down the road and we are going to convict

 9    you and we're going to send you to state prison.

10               One of the problems we had with the

11    changes in Albany and in the mandatory second

12    felony offender law is that they wouldn't be

13    accompanied by the treatment availability on the

14    one hand and by the hammer on the other hand,

15    whether it be intensive supervision or close

16    scrutiny to try and encourage, persuade, coerce,

17    if you will, people to stay in treatment.  So

18    that's a long answer perhaps to your question.

19               In our view, at least, the idea is not

20    to abandon the law but to use the law in much

21    better ways than it has been used up until now.

22               THE CHAIR:  I think that's very

23    sensible.  If I could ask one more question.

24               While these programs have obvious

25    benefits, what about the essential black market


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 2    that's created by the prohibitionist system?  And

 3    I'm sure the effects of that are particularly

 4    significant in communities such as Brooklyn.

 5               MR. COHEN:  Certainly nothing that I

 6    have seen so far indicates, and I think the judge

 7    himself when asked similar questions had a very

 8    difficult time answering them.  I don't think

 9    there is anything that can give us any sense that

10    the kind of black market that creates street

11    violence will not exist if drugs are legalized.

12               The issue has already been raised

13    about the prohibition to minors, and other issues

14    related to the kinds of drugs that are going to

15    be sold, where, how, what.  And unless all of

16    those questions can be answered, it strikes me

17    anyway, that we're taking a risk with very little

18    indication of a return.  And that's a risk that

19    doesn't have to be taken.

20               MR. MARKEWICH:  Perhaps you're too

21    young or at least you look too young --

22               MR. COHEN:  Absolutely not.

23               MR. MARKEWICH:  -- to remember, and

24    I'm being largely facetious, the glorious day in

25    our State's history when I was a Manhattan


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 2    Assistant District Attorney in the late '60s when

 3    the Rockefeller laws went into effect.

 4               Seriously, at that time what was being

 5    emphasized in the passage of the Rockefeller drug

 6    laws was what I guess was then called the DACC

 7    and then became the NACC, which was supposed to

 8    achieve on a statewide basis, large scale by

 9    compulsory treatment, what you are endeavoring to

10    do on a much smaller scale.

11               Now, today we remember the Rockefeller

12    drug laws only for the draconian sentencing that

13    still seems to survive long after the NACC has

14    ceased to function, assuming that it ever really

15    did function, except as a place for the late and,

16    I'm serious, lamented Irving Lang did I have a

17    job, since it all was his idea, I think.  But it

18    didn't work, apparently.

19               Number one, if you know or if you have

20    ideas on it, since I assume you must have studied

21    it as part of setting up this program, why did it

22    not work?  And if it did not work, why would your

23    program work if implemented on a larger scale to

24    the point where it is a viable alternative to

25    anything except on a small scale?


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 2               MR. COHEN:  You are right, I am too

 3    young to remember that, but not too young to have

 4    at least taken a look at some of the things you

 5    are talking about.

 6               I think part of the answer lies in why

 7    the state, I mean after all these years, and I

 8    think this sort of almost gets back to the other

 9    question about mandatory mimimums as well to put

10    them together.  After all these years in which

11    people have talked about second felony offender

12    reform, why suddenly did an admittedly Republican

13    conservative governor and a Republican

14    conservative senate embrace for the first time

15    perhaps not every second felony offender should

16    go to state prison.

17               One of the reasons is the economic

18    reason I alluded to and I think the judge

19    mentioned.  It has become extraordinarily

20    expensive to lock everybody up and that the

21    alternatives, the things like DTAP or things like

22    the state claims it is going to do, are much

23    cheaper.  But those alternatives would only work

24    and they will only save that kind of money in the

25    -- will only save that kind of money in the long


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 2    run if they work, if they are accompanied by the

 3    kind of investment and resources and approach

 4    that will make them succeed.

 5               So I think that a lot of the issues

 6    that you have raised, even though we may disagree

 7    with the ultimate conclusion of the majority of

 8    them, I think a lot of the issues you have raised

 9    and others have raised about rethinking our drug

10    policy and the economics of it are going to cause

11    people to embrace these alternatives, not because

12    they like them but because they want them to

13    succeed.

14               If they want them to succeed, if there

15    is a will, then they will.  I don't know what

16    reason there was in the 1960s for setting up DACC

17    and NACC and everything like that, but I do know

18    that the reason we have set up this program is

19    that the alternative didn't work and cost too

20    much money.

21               If those are the reasons why programs

22    like ours are going to expand, then maybe they

23    have a better future ahead of them than what

24    happened 30 years ago.

25               MR. MARKEWICH:  If I may, I think you


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 2    may have actually indirectly answered part of my

 3    question.

 4               MR. COHEN:  I tried not to answer any

 5    of it.

 6               MR. MARKEWICH:  Maybe not intending

 7    to, that is.  It occurs to me, at least from a

 8    dim historical perspective, that one of the

 9    things that may have gone wrong with NACC aside

10    from the fact that there was a good deal of civil

11    libertarian objection to it from the left, is

12    that from the right there was really an

13    unwillingness to put the financial resources into

14    it, and the financial resources continued to

15    expand into prisons and, therefore, NACC never

16    really got off the ground in terms of its ability

17    to treat.

18               MR. COHEN:  If you look at the reasons

19    why the governor said he was proposing and

20    supporting this second felony offender reform

21    wasn't because he thought there were too many

22    drug offenders in prison, it is because he wanted

23    to make room in his system, a system which he

24    realizes he can't expand forever.

25               He wanted to make room in his


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 2    correctional system for violent and repeat

 3    offenders.  And the only way that he can succeed

 4    in making room in that system for violent repeat

 5    offenders is that the individuals who are given

 6    this other alternative don't come back, and if

 7    they look at it that way, then perhaps the

 8    investment will be there that will make these

 9    alternatives work.

10               MR. DOYLE:  Steve.

11               MR. KASS:  Thank you.  I want to

12    commend you, Mr. Cohen, and the District

13    Attorney's Office for the efforts you are making

14    and for your presentation this morning.

15               I find it interesting that a common

16    ground that you clearly have with the committee's

17    report is a negative assessment of the present

18    system.  But what you really suggest rather than

19    legalization, a more sophisticated multi-tiered

20    kind of enforcement strategy combined with the

21    treatment is preferable.

22               I'm sure that is certainly preferable

23    to the present system.  But like the chair of the

24    committee, I wonder, to what degree your system

25    of forced treatment, which works well for those


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 2    you can get your hands on pretty well, leaves in

 3    place the current economic incentives for --

 4    which affect all those you don't get your hands

 5    on -- the tremendous jackpot profits that are

 6    available to people selling, and the incentives

 7    they have to keep bringing new users into the

 8    system.

 9               I wonder what your comments are on

10    that, other than to say legalization is not going

11    to help or decriminalization is not going to help

12    on that either?

13               MR. COHEN:  Without really knowing

14    what legalization means, it is kind of hard to

15    answer how those economic incentives would

16    change.  But it is hard for me to conceive that

17    legalization means selling crack in the

18    communities of Brooklyn.  And it has already been

19    indicated that legalization does not mean

20    selling, probably does not mean selling serious

21    drugs to minors.

22               If that's the case, then, what

23    indication do we have that the economic and

24    noneconomic reasons that young people embrace the

25    culture of drugs and guns and violence are no


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 2    longer going to be there?  That they are no

 3    longer going to hang out, that all of a sudden

 4    all of the people who are engaged in this kind of

 5    violence in our communities aren't going to be

 6    doing that anymore, and that the next generation

 7    of kids is not going to embrace the same violent

 8    culture that they have, especially, if we're

 9    saying to them, drugs are okay to this extent.

10    They are just not okay for you and they are not

11    okay this way.

12               I don't see how that message is going

13    to -- that carrying out of that message is going

14    to change the cultural violence in any

15    significant way.  And if it doesn't change the

16    cultural violence, then whatever we are trying to

17    accomplish hasn't been achieved and at the same

18    time we have created enormous risks, because I

19    don't see how anybody could disagree with the

20    idea that legalization will mean increased drug

21    use.

22               I mean you have to ask, to get back to

23    the question that was asked before of the judge,

24    and I believe it may have been you who raised

25    this issue, about the troubling studies


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Cohen                       95

 2    indicating that one-third of black men are

 3    involved in the correctional system and those are

 4    extremely troubling.  And they are probably in

 5    part behind the great divide we have seen in

 6    response to the Simpson verdict.

 7               But you have to ask why does somebody

 8    like Charlie Rangel disagree.  He's not a

 9    conservative Neanderthal.  Why do the inmates

10    disagree with the question raised, the inmates

11    who have seen it?  Why does our communities

12    disagree?

13               You can go from Brooklyn Heights and

14    East New York and the response is the same.  We

15    want you to help us, do a better job, but we

16    don't want you to unleash this menace on us that

17    is already here, and I think they are right.

18               MR. DOYLE:  Agatha?

19               MS. MODUGNO:  No further questions.

20               MR. DOYLE:  Do we have any questions

21    from the audience?  Why don't we start again with

22    the back.  If you can step up.

23               A QUESTIONER:  I was wondering how you

24    approach the problem of drug mules?  That is, a

25    certain percentage of your nonviolent, low-level


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 1    jbp              Cohen                       96

 2    drug offenders are not themselves drug users.

 3               MR. COHEN:  That's a good question.

 4    We don't treat nonaddicted drug sellers any

 5    differently under the law now than we ever did.

 6    If someone is in a community of ours selling

 7    drugs on the corner, then they will face, as far

 8    as we're concerned, the penalty that the law now

 9    provides and they probably should continue to

10    face that penalty.

11               We don't have an airport, we don't

12    have much of a harbor, so it is not like we have

13    -- we don't have a lot of cases of defendants

14    coming, being importuned in countries overseas to

15    bring in drugs, but what we do have are a lot of

16    nonaddicted drug sellers ruining neighborhoods

17    and we will treat them as harshly under the law

18    as we think appropriate.

19               A QUESTIONER:  Are you saying, then,

20    that if you pick up two drug dealers, one of whom

21    is a user and one of whom is not, the one who is

22    not a user automatically goes to jail while the

23    one who is a user gets the option of a year in

24    treatment and not going to jail?

25               MR. COHEN:  That's a question that a


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 1    jbp              Cohen                       97

 2    lot of people ask us and sometimes they even go

 3    the next step, which is:  Why should an offender

 4    get access to treatment that a nonoffender, an

 5    addicted nonoffender should have?

 6               Our response is that the goal is to

 7    try and accomplish something for the communities

 8    that we serve.  And if we can get addicted

 9    offenders into treatment instead of prison so

10    that when they come out, they won't be offenders

11    anymore, then we have accomplished something for

12    the communities we serve.  If someone could find

13    us a program that would take nonaddicted

14    offenders and turn them into productive citizens,

15    I'm sure we would be more than happy to do

16    something similar.

17               MR. DOYLE:  We will take one more

18    question from the audience.  Yes, sir.

19               A QUESTIONER:  What would you say to

20    those of us who have no problem, but who just

21    like certain drugs, want to keep on using them

22    regularly, and how would you like it if something

23    you like were made illegal?

24               MR. COHEN:  There are probably a few

25    of those.  I will just respond the way I


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 1    jbp              Cohen                       98

 2    responded before.  That is, I just don't see any

 3    reason why the present policy about legalization

 4    should be changed.

 5               MR. DOYLE:  I would like to add my

 6    thanks and the thanks of the other members of our

 7    committee to the District Attorney of Kings

 8    County for making you available to testify before

 9    us.  It has been very, very helpful to us.

10               (Applause)

11               MR. DOYLE:  Our next witness is Mr.

12    Allan Van Gestel.  Mr. Van Gestel has come down

13    from Boston to join us today, and we very much

14    appreciate his being here.

15               He is a partner in the Boston law firm

16    of Goodwin, Proctor and Hoar.  He is a graduate

17    of Boston University Law School and Colby

18    College.  He has been very, very active in a

19    number of community activities, some of which

20    have directly involved our problem.

21               He served as chairman of the Boston

22    Bar Association Task Force on Drugs in the

23    Courts, which produced a detailed study of the

24    effect of drug-related cases on the Massachusetts

25    court system.  He is a member of the executive


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 1    jbp              Van Gestel                  99

 2    committee of the Supreme Judicial Court Standing

 3    Committee on Substance Abuse.  He is an expert in

 4    a number of areas of litigation including the

 5    rights of Native Americans.

 6               Thank you very much, Mr. Van Gestel,

 7    for joining us.

 8               MR. VAN GESTEL:  Thank you very much.

 9    I bring you the greetings from the provinces up

10    the Post Road.  In microcosm, it may be deflating

11    to your egos, if that is at all possible here in

12    New York, to know that you are not unique in the

13    problems you face.

14               Admittedly, a much smaller scale, but

15    Boston and probably every other city in this

16    country faces exactly the same kinds of problems.

17    But I think because you are the Association of

18    the Bar of the City of New York, and while your

19    Association isn't quite as old as ours -- John

20    Adams was our founder -- you certainly are

21    probably the preeminent Bar Association in the

22    United States, and I think it is significant and

23    important to this issue for you people to have

24    done the work that you have done to have produced

25    the report you have produced and to make the


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 1    jbp              Van Gestel                  100

 2    effort to publicize the issue.

 3               The only thing that saddens me is how

 4    small the audience is, and I think given the

 5    extent of the problem, it is too bad that people

 6    don't come out and listen and learn, because I

 7    think when you listen and learn, the ways of

 8    resolving the problem become much more clear.

 9               Certainly what becomes clear, what

10    became clear to us in Boston and what we did, we

11    did a study that dealt only with Suffolk County,

12    which is the county in which the City of Boston

13    is located, we studied each of the courts.  The

14    Superior Court being the principal trial court,

15    like your Supreme Court but the district courts

16    being the lower courts in the system, the Probate

17    and Family Court, the Juvenile Court, the Housing

18    Court, every one of the courts in the City of

19    Boston is clogged and overwhelmed with:  How do

20    you deal with this particular problem?

21               Just as you face the situation here,

22    the Police Department in the City of Boston on

23    the one hand tries very hard, and on the other

24    hand has had its share of corruption that comes

25    from the very fact of dealing with these


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 1    jbp              Van Gestel                  101

 2    particular drugs that are captured.

 3               The District Attorney's Office is

 4    overwhelmed, our prison system is estimated, in

 5    Massachusetts a much a smaller system than yours

 6    but nevertheless a system, to be at 180 percent

 7    of capacity.  Governor Weld, who is thinking of

 8    abolishing the Secretariat for Education in

 9    Massachusetts, has just put forward a bond issue

10    for $750 million to build yet more prisons in

11    Massachusetts.

12               At the present time there isn't a

13    prison in Massachusetts where you cannot acquire

14    as a prisoner your drug of choice.  There isn't a

15    school in Massachusetts where you cannot acquire

16    your drug of choice.

17               Today, the 12th of October, 1995, is

18    my daughters 17th birthday.  She goes to a very

19    fine little private school on Cape Cod.  I asked

20    her, "Laura, tell me something about drugs."  She

21    said, "Dad, I don't want to say anything about my

22    friends."

23               I said, "I don't even want to know

24    their names, and I don't even want to know

25    perhaps whether you are involved, but can you at


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 1    jbp              Van Gestel                  102

 2    Falmouth Academy get drugs?  Do the kids at

 3    Falmouth Academy use drugs and where do you have

 4    to go?  Do you have to come up from the Cape to

 5    Boston to get them?"

 6               The the answer is yes, you can get

 7    them at Falmouth Academy.  Yes, they do use them

 8    at Falmouth Academy.  No, you don't have to go to

 9    Boston to get them.  You can get them on the

10    streets of the cape, even in the winter when the

11    tourists have gone for the summer.

12               You can get drugs in the police

13    department.  You can get drugs, probably in my

14    law office.  There isn't a place where drugs

15    cannot be acquired.

16               What's the point of all this?  The

17    point of all this, I think, is you have something

18    that is pervasive and something that demonstrates

19    an immense ambivalence on the part of the general

20    public.

21               On the one hand, there is a screaming

22    public who say "Do something about these dirty

23    evil people, lock them up so they don't destroy

24    our society."  On the other hand, there is an

25    unwillingness to spend the money, particularly if


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 1    jbp              Van Gestel                  103

 2    it comes to the side of the problem that has best

 3    been shown to resolve it.  You don't resolve a

 4    man's sickness by sending him to jail.  You

 5    resolve a man's sickness by treating him.

 6               And I think if there is any lesson

 7    that comes out of all these studies, it has to be

 8    that putting someone in jail where he or she gets

 9    nothing but the drugs they want and an education

10    of future job employment that has nothing to do

11    with the legitimate market and is then released

12    to the street after five years or 10 years of

13    that kind of education, still addicted and with

14    no ability to go out and be a productive member

15    of society, when -- and I commend Mr. Cohen from

16    the District Attorney's Office for the program --

17    if that kind of program could be presented

18    everywhere, we would be so much better off than

19    we are.

20               The question was asked why didn't it

21    work years ago when Governor Rockefeller's

22    legislation was invoked.  Although I wasn't here,

23    I am old enough to have been around at that time.

24               I think part of the reason, and I

25    think that comes out of the study that we did, I


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 1    jbp              Van Gestel                  104

 2    think it comes out of what you did.  There is a

 3    concept of imminence that takes place and it

 4    comes when there is insufficient education, and I

 5    think what you folks have done is make a major

 6    contribution, if it gets well-enough publicized

 7    to educating people so that the imminence of the

 8    problem is known.

 9               I don't think back when the

10    Rockefeller laws were in place anybody realized

11    how many people would be in jail, how much it

12    would cost, how much the entire criminal justice

13    system would be corrupted by the attempt to deal

14    with it solely 100 percent in the criminal

15    justice system.

16               I think reports such as what you have,

17    such as what we did in our smaller way in Boston,

18    are helping.  I think we have done something up

19    there that you might think about trying to

20    encourage here.

21               Our reports came out, two reports, one

22    called Drugs and Justice, a System Abandoned, the

23    other Drugs in the Community, a Scourge Beyond

24    the System, were issued in 1989 and 1990.  The

25    Boston Globe, which is now related to New York


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  105

 2    through its new parent, the New York Times,

 3    publicized it very heavily and everything died.

 4    We made a lot of wonderful recommendations about

 5    how to deal with a whole lot of things and not

 6    much happened.

 7               The Chief Justice of the Supreme

 8    Judicial Court of Massachusetts, which is our

 9    high supreme court, the equivalent of your

10    Appeals Court said to me -- I was chair of the

11    committee -- "Allan, very nice report but I

12    expect it is going on the shelf together like all

13    other reports."

14               I said, "Chief I would like to talk to

15    you about that."  I have met with the chief a

16    couple of times over the years and two years ago

17    he was convinced, and he convinced all of the

18    Justices on the Supreme Judicial Court, to do

19    their own study and report on the situation in

20    Massachusetts.  Their report came out in March of

21    1995, a matter of just treatment of substance

22    abuse and the courts.

23               Under that program, a standing

24    committee has just been assembled, and it is our

25    job to try and find a way to implement the


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  106

 2    report.  But what's important about it, I think,

 3    is a couple of things.

 4               First, it has the imprimatur and the

 5    push of the full bench of the Supreme Judicial

 6    Court in Massachusetts.

 7               Secondly, the Supreme Judicial Court

 8    in Massachusetts in its report has taken the

 9    position that the use of drugs is much more of a

10    medical problem than it is a criminal problem.

11               And, third, has issued an order that

12    every judge in Massachusetts must undergo

13    training in order to understand and recognize

14    drug related issues in his or her courtroom,

15    whether it is a juvenile court, a probate court,

16    a district court with battered women being

17    treated or the regular criminal system that you

18    see, even in the civil courts.

19               What the court is going to try and do,

20    and we're going to try and help the court do

21    that, is to get the governor on board to tell him

22    that $750 million in prisons would be better

23    spent, yes, we do need some more prisons, but it

24    would be better spent if much of it were put in

25    assist the court in its program.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  107

 2               The Speaker of the House of

 3    Representatives is already on board.  What the

 4    court wants to do, and I smiled and nodded my

 5    head when Mr. Cohen was speaking, the court wants

 6    to be in a position to get rid of the minimum

 7    mandatory laws but to have the power to order

 8    mandatory treatment.

 9               The Supreme Court recognizes, I think,

10    as people who have studied alcoholism realize

11    now, you don't have to hit rock bottom before you

12    are ready for treatment if there is the right

13    push.  And the judges, as they say, can very well

14    take you long before you are at the bottom, out

15    into the hall on into the elevator and right down

16    and send you off to treatment.

17               And if we can convince the governor

18    and the legislature to pump at least half of the

19    money, or maybe even less than that, into a

20    mandatory treatment program run by the courts,

21    because the courts are in a unique position,

22    again, as Mr. Cohen suggested, because they come

23    at people at a time when they do have some

24    control over your life and they come at people in

25    a unique way in which they can do something for


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 1    jbp              Van Gestel                  108

 2    you.

 3               The issue of decriminalization is a

 4    very difficult issue and, although, I would favor

 5    it, I don't think the public is ready to favor

 6    it.  And I don't think that those of us who think

 7    it is the way to go have yet made the case.

 8               I think, therefore, that what has to

 9    happen is for awhile we have to work on educating

10    those people who can set up the systems and then

11    try to run the systems just like the District

12    Attorney in Brooklyn is doing and have success

13    from those systems and build some confidence in

14    the general public.

15               The general public has been told for

16    too many years that we have a war, that there is

17    a scourge, that if we only increase the

18    penalties, somehow or other that will solve the

19    problem.  Penalties are no longer particularly

20    effective in this society.

21               We have a whole generation of people

22    who shoot each other for T-shirts.  The penalty,

23    the thought of being caught and sentenced is

24    hardly a factor.  Our criminal justice system

25    these days for the most part is not in the


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  109

 2    deterence business, it is in the revenge

 3    business.  It is in the retribution business, and

 4    revenge and retribution are not the way to treat

 5    a sick man.

 6               But I think we have a long way to go

 7    in convincing the public before we get there.  So

 8    while I support the majority aspect of the

 9    Association's report, I am highly respectful of

10    the sensitive statements by those who file the

11    separate report.

12               I think your effort is a great start,

13    but you have to really move on the education

14    front and move to get your legislators and your

15    governor, your district attorneys and others to

16    get on board and make treatment work and keep

17    track of the dollars so that you know what it is

18    costing and keep track of the statistics so that

19    you can then tell the story.

20               There was, just on this criminal

21    system, there was a very, very interesting study

22    that many of you are probably familiar with by

23    the American Bar Association a couple of years

24    back.  It says, and I'm quoting from our report,

25    because we quoted it, "Of the approximately 34


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 1    jbp              Van Gestel                  110

 2    million serious crimes committed against persons

 3    or property in the United States in 1986," which

 4    was the year they were studying, "approximately

 5    31 million" -- 31 million out of the 34 million

 6    -- "never were exposed to arrest because they

 7    either were not reported to the police or if

 8    reported, they were not solved."

 9               To suggest that the criminal justice

10    system that grabs only -- well, those statistics

11    tell you only 9 percent of people committing

12    crimes is in some way going to solve the drug

13    problem, it is just mindboggling when you really

14    get down to the facts.

15               You need some clout.  I don't know the

16    total answer to Mr. Cohen at this time.  I think

17    there is some merit in what he says, that unless

18    you have some clout you are not going to be able

19    to force people into treatment.  But I think a

20    combination of doing that and then getting a

21    better sense in society.  Would you have thought

22    five or ten years ago that you walk by any major

23    building in Boston or New York, even in the

24    bitterest cold days, you see workers out there

25    smoking instead of smoking in the building.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  111

 2    People can be educated to do things, but it

 3    requires a whole lot of work.

 4               And my sense is we're not quite ready

 5    to say let's take everything off, but we are

 6    ready to start programs.  And I think the time is

 7    right to make them work, at the same time I would

 8    not back off one bit from what you are doing

 9    because you need to present these issues to get

10    people talking about them.  It is only when they

11    talk that they will move from one place to the

12    other.

13               I think we're starting to move in the

14    right direction.  Thank you.

15               MR. DOYLE:  Thank you very much.

16               Why don't we start on this side with

17    our panel again.  Agatha, do you have a question

18    for Mr. Van Gestel?

19               MS. MODUGNO:  Yes.  Just generally.

20    We have been talking about the decriminalization

21    issue.  We haven't really, incidentally, focused

22    or you haven't specifically focused on the

23    differences between soft and hard drugs.  I was

24    wondering if you had any particular thoughts

25    about that.


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  112

 2               You said that we have been so educated

 3    that all drugs must be fought.  Do you think that

 4    the separation that was discussed in the

 5    Netherlands between relatively low harm and high

 6    risk drugs could be made here as a first step?

 7               MR. VAN GESTEL:  The Netherlands is a

 8    place I love, where my father was born, and

 9    that's why I have the funny name.  I was in

10    Amsterdam.  I think Mr. Markewich said that the

11    Netherlands is a different kind of society.  I'm

12    not sure it is.  To me the Netherlands are

13    Amsterdam and rest of the country is like New

14    York City and upstate.

15               MR. MARKEWICH:  That's true.  My

16    daughter has told me.  She was in Utrecht.

17               MR. VAN GESTEL:  I don't think it is

18    so much soft and hard in my view, as user and

19    seller.  It seems to me that's where the line

20    could be drawn.

21               A study was just finished by the

22    Boston Globe about three weeks ago on the effect

23    of the mandatory minimum sentences in

24    Massachusetts, and ours are even, if I may say it

25    this way, worse than yours.  The penalties are


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 1    jbp              Van Gestel                  113

 2    higher for smaller and smaller amounts, combined

 3    with the drug forfeiture laws.

 4               In Massachusetts under the forfeiture

 5    laws, the money stays with the district attorney.

 6    What has happened is that overwhelmingly

 7    small-time users are going away for 8 and 10

 8    years and big-time sellers, because they make a

 9    deal to forfeit billions of dollars to district

10    attorneys, are never going to jail at all.  It

11    has utterly corrupted the system.

12               I think the focus should be on the

13    big-time people totally, and I think users ought

14    to be very, very much targeted for treatment.  I

15    could see drawing a line saying, decriminalize

16    use, don't make that a crime, but keep improper

17    sale and distribution a crime.

18               MR. DOYLE:  We have noted that you

19    have referred to some reports that you have with

20    you.  Could we make them a part our record?

21               MR. VAN GESTEL:  Certainly.

22               MR. DOYLE:  You can just leave it with

23    us and it will be part of the material that we

24    use to do our follow-up reports.

25               Steve.


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 1    jbp              Van Gestel                  114

 2               MR. KASS:  Thank you.  I want to also

 3    thank you, Mr. Van Gestel, for representing the

 4    Boston community.

 5               One of the questions that have been

 6    asked, and Mr. Cohen was the most recent, with

 7    respect to a proposal to decriminalize.  How are

 8    you going to avoid sending a signal throughout a

 9    society of drug users that it is okay?

10               MR. VAN GESTEL:  Assuming that signal

11    isn't already there, ready and available

12    everywhere you go.

13               MR. KASS:  Maybe I should have made

14    that qualification.

15               Sometimes the proposal that the person

16    be treated, as an essential matter, be treated

17    essentially as a medical issue, suggests, like

18    other medical conditions, it would be

19    inappropriate, I take it, for a civil society to

20    discriminate against drug users even if they

21    were, particularly if they were not committing a

22    crime.  I wanted to ask you your judgment on

23    that.

24               MR. VAN GESTEL:  I missed that part of

25    your question.  How is a civil society


               PIROZZI & HILLMAN  212-213-5858


 1    jbp              Van Gestel                  115

 2    discriminating against drug users by having the

 3    use of drugs decriminalized?

 4               MR. KASS:  I want to come to the

 5    specific hypotheticals.  It is not proper in many

 6    jurisdictions to discriminate against employees

 7    on the basis of a medical disabilities.  In some

 8    cases it is not proper to refuse to grant

 9    apartments for a variety of reasons.  Many of

10    those who are concerned about decriminalization

11    suggests that landlords and employers ought to

12    have the right not to rent to or not to hire drug

13    users even if they are not guilty of a crime.

14               MR. VAN GESTEL:  I assume you are

15    picking them over alcohol and tobacco and other

16    things?

17               MR. KASS:  I am asking you --

18               MR. VAN GESTEL:  I don't see a

19    difference, to be candid with you.  I think if it

20    is truly an illness, I don't think someone should

21    be discriminated against because of it.

22    Obviously, if it affects his or her performance

23    in their job, then you can't go to work.  If

24    someone, however, is illegally selling, let's

25    assume, in an apartment down the street here,


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 1    jbp              Van Gestel                  116

 2    someone starts selling bourbon at a nickel a

 3    bottle, I think that landlord has every right to

 4    throw them out same as a drug dealer.  It is the

 5    drug dealer that ought to bear the brunt of the

 6    concern not so much the user, but the person who

 7    is sick.

 8               MR. DOYLE:  Dan.

 9               MR. MARKEWICH:  I very much appreciate

10    your position insofar as it favors at least in

11    the ordinary case treatment over incarceration,

12    although I still don't really understand why when

13    we tried it previously it didn't work, even

14    though I think there is merit to your comments on

15    the subject.

16               Is there a certain paradox, however,

17    in your position regarding decriminalization as

18    it stands side by side with your position

19    regarding, shall I say, compulsory treatment?

20               I regard drug abuse, generally

21    speaking, as a sickness or an illness that,

22    generally speaking, justifies treatment rather

23    than punishment or at least as an alternative to

24    punishment.  Now, with drugs illegal, those who

25    commit the crimes of possession or sale of drugs


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 1    jbp              Van Gestel                  117

 2    can be required to undergo treatment as an

 3    alternative to incarceration.

 4               If you decriminalize drugs, you will,

 5    I think, perforce, have either as many or more

 6    drug abusers, as you do now.  I don't think you

 7    will have fewer.  You will have either as many or

 8    I think more likely you will have more.  Yet by

 9    decriminalizing drugs, you will have a reduced

10    bases for compelling treatment, because drug

11    abusers who have not committed nondrug crimes

12    will no longer be able to be forced into

13    treatment.

14               It seems to me that the result of that

15    is that you will have either as many drug abusers

16    as you do now or more likely more drug abusers as

17    you do now with a reduced ability on the part of

18    society to force them -- and I know force is a

19    strong word, but I think it is probably the

20    appropriate word -- to be treated for their

21    condition.

22               I wonder if you could comment on this,

23    which may be more syllogistic than logical, but I

24    think it is logical.

25               MR. VAN GESTEL:  Let me suggest that I


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 2    respectfully don't think it is logical when you

 3    think about it.

 4               First, it wasn't for nothing that I

 5    mentioned that of 34 million crimes, only 3

 6    million get into the system.  I think as long as

 7    you continue to treat the drug problem as a

 8    criminal problem, you are going to divert the

 9    funds that will be used to educate in an imminent

10    way, not just a policeman once a month going to a

11    grammar school, but really educate people, really

12    provide treatment on demand so that it is there

13    when somebody wants it, when somebody's family

14    sits down with dear old dad, and just as you do

15    when he drinks too much, "Dad, it is time," or

16    when the boss says, "Harry, it is time, and if

17    you don't get some treatment, you don't have a

18    job here anymore," or mom says, "I'm out of here.

19    It is time to go to the probate court."

20               I think you will find that there will

21    not be as many people suffering and you will be

22    treating your society in a way that you should

23    treat them, not jailing them for a sickness.  But

24    I don't think the general public, particularly

25    these days with all that's going on politically,


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 2    are willing to buy into that.

 3               That's why I say we have to prove to

 4    them, first, that treatment works and that it is

 5    a whole lot cheaper and that it is a whole lot

 6    better.  People lives don't get ruined.  They

 7    don't have The Scarlet Letter of ex-con stamped

 8    on their forehead forever and forever.

 9               Once you have done that, then I think

10    you can move into, taking probably a third of the

11    billions of dollars that are squandered, really

12    squandered because it is an unfair system under

13    the present system.  Forget about interdiction.

14               How much do we spend on interdiction

15    trying to keep drugs out of the country when you

16    you can get it in any prison including a maximum

17    security prison in any state?

18               I think it isn't as simple as saying

19    it is either one or the other.  I think you have

20    to see the whole picture, and I think you have to

21    put into the system what it needs to really do

22    the job and not do it in a halfhearted way.

23               Who knows, with what's going to happen

24    with Medicare and Medicaid, and all the rest,

25    whether we can ever convince the current


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 2    government that it ought to put treatment for bad

 3    people who use drugs.  But if we don't, we have a

 4    very sad society ahead of us.

 5               MR. KASS:  In very brief follow-up on

 6    that, your emphasis on treatment suggests that

 7    you would have less confidence in a legalized

 8    maintenance system, is that correct?

 9               MR. VAN GESTEL:  No, not necessarily.

10    Candidly, I don't know how a legalized

11    maintenance system would work.  But, again,

12    coming back to Mr. Cohen who, I mean, I really

13    applaud and want to call up and find out how his

14    program works.  But when the question was asked

15    of him, well, "Gee, you are only reaching the

16    people who get into the criminal justice system,"

17    he said, "I would love if we could reach

18    everybody, but that's the only ones that the

19    criminal justice system can deal with."  We're

20    using the wrong system to deal with this problem.

21               MR. DOYLE:  Any questions from the

22    audience?  Yes, sir.

23               A QUESTIONER:  There's been testimony

24    over the past couple of days regarding users

25    versus addicts, and the numbers have been in the


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 2    10 to 15 percent rank.  That is, 10 to 15 percent

 3    of people who have used drugs become addicted to

 4    the drugs, but there was implicit in both your

 5    statement and the prior statement that anyone who

 6    uses drugs is a candidate for treatment.

 7               I would like you to comment on that

 8    apparent contradiction.

 9               MR. VAN GESTEL:  I'm not sure I fully

10    see the contradiction.

11               A QUESTIONER:  Is it your position

12    that anyone who uses any amount of illegal drugs

13    at any rated over time, that is, once a month,

14    once a week, needs treatment?

15               MR. VAN GESTEL:  No, no.  I don't

16    purport to be a physician.  It is those people

17    who have lost control of the ability to deal with

18    their lives, just like an alcoholic, who need

19    treatment, ought to have it available and they

20    shouldn't be, as they are today, branded as

21    criminals and sent to jail.

22               A QUESTIONER:  That's not how DTAP

23    works and programs like what you are talking

24    about in terms of mandatory treatment.  What

25    happens is you get caught with drugs in your


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 2    system, there is no way of knowing how often you

 3    use them, how much you use them, whether your

 4    life is out of control or not, that is, whether

 5    you are in that 10 percent of the users who are

 6    addicts, yet, you are set for mandatory

 7    treatment.  That's why I am saying.

 8               How do you stand -- theoretically,

 9    only 1 out of 10 people mandated to treatment

10    actually need treatment if only 1 out of 10

11    people who use drugs are addicts.

12               MR. VAN GESTEL:  If your use of drugs

13    has so affected your ability to deal with your

14    behavior that you are caught up in the criminal

15    justice system for some reason, in addition to

16    the simple use of drugs, why isn't that a -- why

17    if that person needs treatment and loses control,

18    then society ought to force him into treatment.

19               A QUESTIONER:  Is that comparable to

20    like --

21               MR. VAN GESTEL:  It is comparable to

22    like being a drunken driver and running over a

23    child and being criminally prosecuted.

24               A QUESTIONER:  How about comparable if

25    you get stopped because your tail light is broken


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 2    and it turns out you got alcohol in your system.

 3               MR. VAN GESTEL:  I see nothing

 4    comparable there.  If you get drunk every Friday

 5    and beat your wife, I think the criminal justice

 6    system ought to grab you and say, "Unless you get

 7    your drunkenness under control you are going

 8    away."

 9               MR. DOYLE:  Thank you very much for

10    coming from Boston to enlighten us on the work

11    that you have done and the results of your

12    reports and your studies, and we hope that you

13    will stay in touch with us and that we will

14    coordinate our efforts in the future.

15               We're running at least an hour behind

16    schedule.  So I am going to have to stop the

17    questioning of Mr. Van Gestel at this time.

18               Thank you very much, sir.

19               (Applause)

20               MR. DOYLE:  Dr. Feingold.

21               MR. MARKEWICH:  I want to announce

22    that Dr. Feingold and I are high school

23    classmates, which is kind of ironic.  Last year

24    at a committee dinner, I being a chair of another

25    committee, I found myself at a table with two


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 2    other high school classmates.  One of whom is

 3    still a good friend of yours, David, right.

 4    Aaron Edberg.

 5               DR. FEINGOLD:  Since this is a meeting

 6    of lawyers -- and I'm an anthropologist -- the

 7    first thing they did was give me a consent form

 8    to sign.

 9               MR. DOYLE:  Let me introduce Dr.

10    Feingold who has produced film through Ophidian

11    Films Ltd.  He's a research anthropologist and

12    he's a fluent speaker of several Asian languages,

13    including three dialects of Thai and Akha.  He is

14    an expert in the area of opiate production and

15    trade.  He has served as director of the Center

16    For Opium Research.  He has been a consultant to

17    the United Nations and to the Narcotics

18    Convention on Drugs, and he has written on opium

19    and politics in Laos.  He has also made films on

20    various topics including these subjects.

21               Dr. Feingold, thank you for joining us

22    this morning.

23               DR. FEINGOLD:  Thank you very much for

24    asking me.  What I would like to do is take this

25    issue that you have been dealing with for the


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 2    past few days and take it back to where it all

 3    starts.  Because one of the things that has

 4    happened ever since President Nixon decided to

 5    declare the first war on drugs in 1971 is that

 6    the United States has followed a policy in which,

 7    essentially, it assumed that the kinds of

 8    problems that couldn't be solved by the Brooklyn

 9    District Attorney's Office, by the police in New

10    York City, could not be solved by prosecutors and

11    police in places like Thailand and Laos and Burma

12    and Peru.

13               Now, this represents a degree of faith

14    in the efficiency of those enforcement

15    organizations that is certainly not matched by

16    the people in that country or the people who have

17    had much experience in being there.  What I want

18    to talk about very, very briefly is about two key

19    crimes and crops, and then I will talk a little

20    about marijuana.

21               First of all, as most people know,

22    heroin derives from opium.  Opium derives from

23    poppy and the main center for opium cultivation

24    at the present time is the so-called Golden

25    Triangle, a term beloved of the newspaper


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 2    reporters, and said, knowledgeably, by those

 3    people who have made a brief visit to Southeast

 4    Asia generally and had their picture taken at a

 5    sign that now resides at the confluence of Burma

 6    Thailand and Laos that says Golden Triangle.

 7               If any of you wanted to go there,

 8    there is a very nice guest house, and you can go

 9    and get your picture taken there.  I first lived

10    in the heel of Northern Thailand in 1964, and

11    first worked with Shans, who were the General

12    Motors of the opium trade, and opium people who

13    are a number of one highland minorities that grow

14    opium.  I spent two years living in one Akha

15    village that I returned to frequently thereafter

16    in 1967 to 1969, and I kept on going back to the

17    same place.

18               One of the interesting things that I

19    learned to do is I learned a lot about growing

20    opium.  I spent a lot of time in opium fields.

21    One of the things that is usually misunderstood

22    is that opium is not a very good crop for the

23    people that grow it.  It takes 387-man hours to

24    raise 1.6 kilos of opium.  1.6 kilos is the

25    measure of opium.  It is called a whisk or more


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 2    appropriately a joy.

 3               So to grow a joy of opium takes

 4    387-man hours which is about 80 percent more than

 5    the input into upland rice.  In addition to this,

 6    the return per household which will vary there

 7    year to year, but runs about 50  or $60 for a

 8    year's worth of labor.  Now, admittedly this

 9    approximately corresponds to the wages of an

10    anthropolist, but I suppose no attorneys would

11    work for that, or at least none that I met.

12               In addition to that, you lose your

13    crop about once every five years because of

14    weather.  And also in addition to that, the

15    out-turn for any one particular field can vary by

16    up to 300 percent.  So the fact is you have a

17    crop that is very labor-intensive, you don't get

18    very much return for and you lose it about once

19    every five years.

20               So why do people grow opium?  People

21    grow opium for not the obvious reason that people

22    say, well, they make a killing with it.  What

23    happens is, that people grow opium because, one,

24    it is used as a medicine, it is one the very few

25    medicines that highland people have.


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 2               Two, they also use it as a

 3    recreational drug in which traditionally there

 4    were very severe social controls.  So that -- and

 5    unfortunately it is not the situation now, and I

 6    will explain why in a couple of minutes

 7    traditionally women didn't smoke opium among, for

 8    instance, the Akha.  Children didn't use it.  So

 9    essentially, it was something that was limited to

10    old men.

11               Now, one of the things that some of us

12    find a little disheartening that if you are an

13    Akha you officially become an old man at 44 years

14    of age.  Some of us are trying to fight that

15    tradition.  But the fact is opium was basically

16    used as something that grandpa, after he had been

17    spending several hours walking up and down

18    mountains, used to relax.  It was used much more

19    like fine cognac than it was three quick martinis

20    to get you through the day.

21               Then there were people who, both in

22    local terms and in our terms, abused opium.  By

23    that, what local people considered is that their

24    use of the drug was inappropriate in terms of

25    either time, time of the day.  In other words, if


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 2    we had a drink together at 5 o'clock in the

 3    afternoon, probably most of us wouldn't think

 4    much about it.  If I met you for a New York power

 5    breakfast and you ordered a stiff Bourbon, I

 6    would probably look at you somewhat askance.

 7    Your body doesn't know the difference.  There is

 8    nothing medically in the amount of alcohol that

 9    you ingest.

10               The difference is whether or not it is

11    socially appropriate to get high, so a user that

12    abused, used it at inappropriate times or used it

13    in such a way, as to interfere with his ability

14    to operate as a normal adult within the society.

15    Just as, you know, you can get a little tipsy at

16    a party and it is considered relatively all right

17    in society but not if you get in your car and

18    proceed to knock down three children on their way

19    home.

20               Now, what essentially that meant in

21    terms of opium is you had the uses of medicine,

22    the uses of recreational drugs and, most

23    important, which most people do not understand is

24    that it acted as a currency.  And so you could

25    walk down from Southern China and, in fact you


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 2    still can, to Shan states and to Northern

 3    Thailand and Laos, and you can carry a brick of

 4    opium like American Express checks "Don't leave

 5    home without it."  You can cut off little bits

 6    and you move along.  It was a consummable

 7    currency which was used vis-a-vis currency.

 8               If you want to understand liquidity,

 9    try getting into a New York taxi with $100 bill.

10    I think when I originally used this example years

11    ago it was $20 but taxis have gone up.  With a

12    $100 bill you have the money, but nobody can make

13    change.  So, essentially, that underpinning of

14    the economy became very important and the other

15    key thing is that opium has a high value per

16    amount of weight.

17               Why is this important?  It means

18    transport costs are low.  If you are in the

19    mountains, and you spent a lot of time walking

20    through mountains, that becomes very important.

21    If you grow potatoes, and you carry it five hours

22    down the mountain to a market, you basically have

23    a choice of accepting any price you are offered

24    or packing up your potatoes and carrying them

25    another five hours up the market.


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 2               That's sort of a concrete way to

 3    understand how transport costs work in a

 4    traditional economy.

 5               So this question of transport costs

 6    and also the question that the market comes to

 7    you, in other words, if you grow opium somebody

 8    is going to show up in your village that wants to

 9    buy it.  You don't have to go to them.

10               Now, what happened in terms of the way

11    we dealt -- and I'm going to use the example of

12    Shan states in Burma -- when I went first into

13    the Shan states in 1964, Burma never produced

14    more than 425 metric tons of opium.  That's a

15    lot.  But when the United States, by the time the

16    United -- this was when there was no suppression

17    program in Burma.

18               By the time the United States ended

19    its support for suppression of opium cultivation

20    in Burma, Burma was growing 1,600 metric tons of

21    opium.  Okay.  So you had 425 before there was

22    any suppression program and you had 1,600 tons

23    after there was a suppression program.  This

24    makes this the most successful agricultural

25    development program undertaken anyplace in the


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 2    world.  If AID could accomplish for rice what the

 3    United States accomplished for opium, we would

 4    solve much of the world's hunger problem.

 5               So the obvious question is why did

 6    this happen?  Was it just that instead of

 7    spraying herbicides, they were spraying

 8    fertilizer.  No.  What happened was is that by

 9    contributing to political instability you

10    increase people's liquidity preferences.

11               What's a liquidity preference?  I'm

12    sure that all economically well-educated people

13    know that, but in case there are some that don't,

14    what that means is what are you willing to pay or

15    to invest in order to be able to have your wealth

16    in a liquid form.  In other words, if war came to

17    New York City, which would you rather own, real

18    estate or gold chains?  Probably you would prefer

19    gold and would be willing to pay quite a high

20    premium for it, or even better, maybe diamonds

21    because they are easier to move.  So,

22    essentially, what happens is where you have

23    situations where drug suppression programs

24    contribute to political instability, it favors

25    the production of drug crops over food crops.


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 2               A couple of other things about growing

 3    opium.  Opium is more forgiving of land than rice

 4    is.  You can grow opium on land that you can't

 5    grow rice.  Essentially, if you look at Burma for

 6    the past century, more than 50 percent of the

 7    entire production of opium has come from one of

 8    the Shan states, which is abyssmal in terms of

 9    their soil quality and often are grown by the

10    poorest people.  Essentially, if you want to be

11    well off, if you are a highland person you want

12    to grow both rice and opium.  So that you have

13    protection against when your crop fails you also

14    have control of your food supply.

15               Because another important thing to

16    remember is that in traditional agricultural

17    situations and the world, people do not tend to

18    maximize profit, not because they are stupid, but

19    because it is more important for them to minimize

20    risk.  Because if you have a failure of a crop,

21    you can't go and even find the minimal safety net

22    for the deserving poor that supposedly we're

23    going to end up with.  So there is a high

24    inducement to minimize risk.

25               Now, let's see what happens.  You


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 2    create a situation where you maximize production,

 3    you maximize production by creating instability,

 4    raising liquidity preferences, having more and

 5    more labor that goes into drug crops rather than

 6    food crops.  You do not develop the area, which

 7    means that you increasingly give a comparative

 8    advantage to crops with low transport costs.

 9               You then have a very efficient network

10    to distribute that product and it is probable

11    that the only thing, the only product that Shan

12    states in Burma produces that is readily

13    available in processed form in New York City is

14    opium which gets turned into heroin.

15               You don't get a lot -- they grow some

16    wonderful tea up in Shan states, and you can't

17    get it in New York.  You don't get much bamboo

18    from there.  Basically except for -- there is one

19    other thing.  You get Burmese rubies in the

20    United States and some sapphires.  But aside from

21    that, there isn't much that makes it here except

22    heroin and the heroin does it without the benefit

23    of government subsidies.  So it should be very

24    dear to the hearts of the present congressional

25    members and it does it without a whole lot of


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 2    formal mechanisms to deal with.

 3               Now, one of the people that I worked

 4    with was a man who you actually might know, Kung

 5    Sao, you have read about him.  He's referred to

 6    as the drug kingpin or the king of opium in the

 7    Golden Triangle of China.  Anyhow, I looked at

 8    how his finances were, if that's possible.  And

 9    essentially he makes a lot of money from taxing

10    opium moving through his areas and from taxing

11    traders who process it into heroin.

12               Now, I'm always fascinated, and I

13    heard some of it this morning, about sending

14    messages.  Ours is a society that has a great

15    belief in messages.  We constantly confuse text

16    and life.  And so what we do is we're worried

17    about what messages are we sending.

18               I remember a few years ago when there

19    was The assistant Secretary General of the United

20    Nations who said -- we were on a panel together

21    -- and he said, we're sending a message to the

22    drug traffickers that drug trading will not be

23    tolerated.  And I said, "Well, Mr. Secretary, you

24    might be sending it, but they are not getting the

25    message."


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 2               Now, why aren't they getting the

 3    message?  First of all, the message is something

 4    that is not getting through.  They are pretty far

 5    removed from these sorts of meanings.  But the

 6    second thing is enforcement never stops more than

 7    10 percent of what comes out of the fields.  And

 8    even that 10 percent is a manageable figure.  If

 9    over the past 30 years enforcement has never

10    stopped more than 10 percent of what comes out of

11    the field, what is the result of all the

12    increases in the taxpayers' money that have been

13    going on in terms of drug suppression?

14               The main result, not because we want

15    to do it, but the practical result is that we run

16    a price-support program for heroin around the

17    world.  Because what we do is by never stopping

18    more than 10 percent, it means we guarantee that

19    90 percent gets through.  And essentially we're

20    like an ineffective use of antibiotics.  Because

21    since only the least efficient smuggling

22    organizations are caught, you act as -- it is a

23    wonderful Darwinian model -- you have a selective

24    mechanism for selecting more and more efficient

25    smuggling organizations.  So Kung Sao could not


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 2    make the money he makes if it weren't for the

 3    Drug Enforcement Agency.  This has nothing to do

 4    with corruption.  It has to do with just basic

 5    economics.

 6               Let's look at a couple of other

 7    instances, and I know you're running very late

 8    and I will try to be brief.

 9               I also worked in Peru and was in the

10    upper Guayaga Valley where 60 percent of the

11    world's cocaine originates.  Some of you who have

12    read so much about Columbia, because everybody

13    likes to write about it because of the cops and

14    robbers and people getting shot.  A lot of people

15    get shot in Peru but for somewhat different

16    reasons.  What happens and why do things go wrong

17    that way?

18               In the 1990s they were making the same

19    mistakes in Peru that they did in Southeast Asia

20    starting in the '70s.

21               What happened is the Guayaga is an

22    area that is larger than El Salvador -- it is a

23    valley larger than El Salvador.  The United

24    States established one base, it looked like very

25    much like a Viet Nam era firebase in Santa Lucia


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 2    where they might have 10, might be more now, DEA

 3    agents who, poor guys, were supposed to win the

 4    war on drugs in an area larger than El Salvador.

 5               Now, in the Guayaga you had farmers

 6    who were not traditionally supportive of the

 7    various leftist guerrilla matters.  In terms of

 8    their voting patterns they voted for somewhat

 9    right-wing traditional egalitarian partners.

10    What happened when you had a suppression

11    participation -- because the farmer would grow

12    coca essentially for commercial purposes, because

13    they can't get any anything else to market -- you

14    had the Colombian drug traffickers who were

15    buying the drugs, you had the army pushed by the

16    United States and the police pushed by the United

17    States carrying out suppression, and the farmers

18    were sort of caught in the middle because the

19    guys from Columbia didn't take much of an excuse

20    if you didn't deliver.

21               So Sindarno Emplinosa -- some of you

22    heard of him, the Shining Bat, who is still out

23    in the jungle who was once captured -- came to

24    these farmers, who were not ideologically well

25    disposed, came to them and they said, "Well,


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 2    look, we'll tell you what we'll do.  We'll

 3    protect you against the army, we'll protect you

 4    against the police, we will protect you against

 5    the Americans.  We'll bargain with the

 6    traffickers to get you a higher price for your

 7    crop and, by the way, if you don't go along,

 8    we'll come back and kill you and your family in

 9    very nasty ways."

10               So the farmers not being stupid,

11    thought about this for precisely 36 seconds and

12    said, "Seems like a good idea to me."

13               What that meant is that Sindarno got

14    them established with an economic base that they

15    previously lacked, which was in fact the major

16    resource of Peru.  Coca is the probably the major

17    resource of Peru and that gave them a foothold,

18    which they never would have had without the

19    suppression program you might say.

20               Okay, that's the cost of doing

21    business, but we sent a message and we're winning

22    the war on drugs.

23               The other thing that was interesting

24    is that Congress chartered the expenditure for

25    suppression in Peru and drug production in Peru


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 2    and guess what?  As expenditure went up on

 3    suppression, drug production went up as well.

 4               So the end result, which led to the

 5    title of the film that we did that was on PBS, is

 6    there was a hearing before Congress and General

 7    Jawuan who was at that time the commander of

 8    several commands came in and testified that our

 9    program should be assessed on the will of our

10    allies to take action on drugs.  And this old

11    congressman from the south said, "You know,

12    General, I don't know much about this but it

13    seems to me if they are growing more and more of

14    the drugs and more and more of the drugs are

15    coming into this country, we ain't winning."

16               MR. DOYLE:  Can you finish up in one

17    or two or three minutes?

18               MR. FEINGOLD:  I can finish up in one

19    minute.

20               Essentially, if you look at coca,

21    which is the main source of one of our drugs,

22    cocaine and crack, if you look at opium, which is

23    the main source of heroin -- and let me just say

24    in one minute something about marijuana.

25               If you remember back in the bad old


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 2    '60s -- there might have been even someone in

 3    this room who didn't inhale, but tried some

 4    marijuana because it was forced on them by their

 5    college roommate or girlfriend or boyfriend --

 6    most of the marijuana at that time had 3 percent

 7    THC.  Now marijuana is running, as I understand

 8    it, about 11 or 12 percent, some even higher, THC

 9    content.

10               What happened?  What happened is you

11    had a movement against marijuana overseas which

12    gave the domestic producers the kind of

13    protection from the government in terms of

14    overseas competition that, for instance, Chrysler

15    and General Motors would kill to get.  So what we

16    did was set up a situation where we suppressed

17    crops in other countries which gave benefit to

18    higher yielding crops in the United States and

19    then we had suppression in the United States and

20    people went to hydroponic growing which produced

21    higher THC yielding plants.

22               So one of the things I would say in

23    closing is that when one looks at programs,

24    whether it is domestically or internationally, I

25    think we have to realize that doing drugs makes


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 2    you feel good and is bad for you.  And pretending

 3    to do something about drugs makes you feel good

 4    and is also bad for you.  And so I would say that

 5    the one lesson that has come to me from 30 years

 6    of looking at this problem overseas, is that

 7    basically almost everything that's done spends a

 8    lot of money, makes things worse, can be highly

 9    amusing except for the fact that a lot of

10    innocent people suffer.

11               Someone pointed out that essentially

12    the drug trade has two groups of victims.  The

13    farmers at one end and the junkies at the other

14    and everybody else makes out like bandits.

15               MR. DOYLE:  Thank you very much.

16               (Applause)

17               MR. DOYLE:  We have time for two

18    questions from the panel and two from the

19    audience.

20               Agatha, do you have any question?

21               MS. MODUGNO:  A comment really, which

22    is that when I was in Peru in the 80's you saw an

23    immense deterioration in society that people in

24    society who never used the coca before were using

25    it precisely because of the U.S. programs and it


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 2    made it interesting and attractive to them and it

 3    is not new in the 90's.

 4               MR. DOYLE:  Dan?

 5               MR. MARKEWICH:  No question.

 6               MR. DOYLE:  Any question from the

 7    audience.

 8               A QUESTIONER:  Just a quick one.  What

 9    do you think would happen to all these economies

10    if legalization or if some form of legalization

11    would take place in the United States?

12               DR. FEINGOLD:  I think it is very

13    interesting.  One of the things I'm troubled

14    about as to what some people said this morning,

15    there are lots of statements about what we don't

16    know.  But in fact we know a lot of different

17    things.  We know, for example, that children,

18    that even if minors went out and bought it like

19    mad, they could never make up the total amount of

20    the market that the adults do.

21               If you essentially cut off the market

22    in terms of, meaning taking away huge profits,

23    you would essentially cut that off so far as the

24    United States is concerned.

25               Now, there are still other places in


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 2    the world.  It is not that this would all of a

 3    sudden disappear.  It is also true that there is,

 4    for instance, worldwide, tremendous

 5    overproduction of opium.  In other words, I

 6    believe that the current estimates are that the

 7    United States uses -- or it used to be that the

 8    estimates are that they used 11 tons of heroin.

 9    Now maybe it is up.  But 11 tons of heroin is

10    equivalent to approximately 110 tons of opium.

11    Then you have wastage and usage, and actually it

12    is not a ten to one reduction ratio.  It is a

13    couple of other things.  But when you think this

14    year Burma will produce approximately 2,500

15    metric tons of opium, you can see that there is a

16    tremendous overproduction, and that's just

17    looking at Burma not counting Laos, not counting

18    Afghanistan, not counting Iran.  A supply you

19    can't do anything about.

20               Essentially, if you cut the economic

21    demand, it will eventually work back through the

22    pipeline, but it is not going to be magical

23    because the United States isn't the only market.

24               MR. DOYLE:  Thank you very much.  We

25    very much appreciate your comments, which are


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 1    jbp              Adler                       145

 2    extremely helpful and we hope to stay in touch

 3    with you as we progress in our study.

 4               (Applause)

 5               MR. DOYLE:  Charles Adler is a member

 6    of the firm of Goltzer & Adler.  He is a criminal

 7    defense lawyer and a litigator here in New York

 8    City.  He is president of the Center for

 9    Community Alternatives.  He is on the board of

10    The Partnership For Responsible Drug Information

11    and New Yorkers For Drug Policy Reform, and we

12    welcome Mr. Adler here today.

13               MR. ADLER:  Thank you very much.

14    Thank you for having me.  Am I close enough to

15    this microphone?

16               MR. DOYLE:  Yes.

17               MR. ADLER:  Perhaps I made the mistake

18    of attending for the other speakers and it has

19    given me so many additional things that I want to

20    say and I know I don't have time to do it.  Let

21    me start by saying directly we cannot stop the

22    flow of drugs in this country.  People seem to

23    have beaten around the bush about that, but it

24    seems to me we have absolute, clear irrefutable

25    proof of it.


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 2               Someone mentioned a little earlier

 3    that drugs are available in every prison in this

 4    country.  The New York Times recently published

 5    an article which made that point, and one of the

 6    most evocative statements in the article was by

 7    the warden of the prison in Philadelphia who said

 8    drugs were so abundant in his prison that the

 9    prisoners were smuggling them out because they

10    fetched a higher price on the street.

11               If that was an experiment, it seems to

12    me that could not be better devised.  It is a

13    fortress.  The inmates have no liberty whatever.

14    They are subject to random searches.  Visitors to

15    that fortress are subject to searches, if,

16    indeed, they are admitted at all.

17               When people in our law enforcement

18    establishment tell us that if only we expended

19    more money, if only we surrendered more of our

20    liberties, they could interdict drugs into the

21    United States.  It seems to me so patently

22    ridiculous that I wonder about their good

23    intentions in telling it to us.  I wonder about

24    the sanity of the society that accepts that.

25               Now, some speakers have suggested that


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 2    perhaps even if this war on drugs is ineffective

 3    we ought to continue it anyway because it sends

 4    the proper message or for some other reason, and

 5    I want to ask the question:  What is the price

 6    that we pay to continue it?  It is not simply an

 7    attempt that produces no cost.  The collateral

 8    damage of this war is immense, and I want to take

 9    the little time that I have to speak with you to

10    make just a few points which essentially address

11    some of the collateral damage.

12               The report that this committee issued,

13    which was a wonderful report, and I certainly

14    want to add my voice to the chorus of applause

15    for both the common sense approach and the

16    comprehensive nature of the reasoning and the

17    conclusions.

18               There are few, I hope, additional

19    points that I can add.  I will try and pick the

20    more fundamental ones.

21               It seems to me that the drug war is

22    incompatible with a free society.  That's a

23    rather broad statement.  What I mean by that is

24    that law enforcement traditionally utilizes

25    techniques which are compatible with a free


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 2    society.  A crime is committed, a detective

 3    appears on the scene, interviews witnesses, looks

 4    for forensic evidence and does other such police

 5    sounding things.

 6               When we conduct this war on drugs, we

 7    utilize techniques which are more in keeping with

 8    the suppression of ideas in a totalitarian

 9    society than the investigation and prosecution of

10    individual crimes.

11               The use of eavesdropping and

12    wiretapping which began with a great deal of

13    reticence on the part of Congress has increased

14    enormously.  What was seen as a great concern has

15    now become routine.

16               The war on drugs is fought with such

17    techniques as the infiltration of communities in

18    the recruitment of informants.  It has brought us

19    to a point where the police are seen as an

20    occupying army in most inner cities.  There is

21    very little interchange between the citizens of

22    the inner city and the police for fear that

23    either the citizen or a member of the citizen's

24    family will be caught up in the enforcement of

25    the drug laws.


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 2               We have virtually nothing left of the

 3    Fourth Amendment in this country.  It seems to

 4    me, as an aside, that a free society has the

 5    right by popular decision to abandon some of its

 6    liberties, but that's not what has happened.  The

 7    Fourth Amendment has disappeared without any

 8    debate, and it seems to me while lip service is

 9    given to the existence of the constitutional

10    rights to privacy, nonetheless we don't have a

11    Fourth Amendment.

12               To take a timely example, perhaps just

13    one of the reasons that the result in the Simpson

14    case was as it was, is that the jury did not

15    accept the explanation that four detectives went

16    to Mr. Simpson's house and climbed over his wall

17    to inform him that his former wife had been

18    killed.

19               Well, I don't think many people

20    accepted that when they think about that as

21    having been true, and so we ask ourselves why did

22    it happen.  It seems to me it happened because

23    the police always say something like that and the

24    prosecutors always accept it and the judges in

25    the hearings always accept it and now the


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 2    detectives, the poor folks, say, "What did we do

 3    wrong?  We always lie about this and we thought

 4    that's what we were supposed to do."

 5               Well, the routine way in which these

 6    fabrications -- and that's what they are -- have

 7    become accepted is the result of this drug war

 8    and it seems to me it undermines a credibility

 9    that is essential to the maintenance of a free

10    society.

11               We permit intrusion into people's

12    lives that seems to me strange.  The routine

13    looking through garbage, the chemical analysis of

14    our bodily waste.  These things are accepted now

15    as sort of a given and the baseline keeps

16    increasing.

17               In this circumstance, what can we

18    expect of the relationship between communities

19    and their citizens and the police.  It seems to

20    me we cannot expect a relationship of mutual

21    respect.

22               One only need look at the Mollen

23    Commission report to derive the conclusion that

24    corruption among the police is inevitable in the

25    prosecution of a drug war.  I don't want to take


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 2    too much time in discussing why.  I think it is

 3    rather obvious.  The money, the futility that the

 4    police see in arresting and prosecuting people.

 5               There are very few police, I think,

 6    who would accept a bribe in order to let a bank

 7    robber or a rapist go free.  But when it comes to

 8    somebody who sells drugs, it is not really that

 9    person who the police are told is bad, but rather

10    what that person is doing.  And yet what he is

11    doing continues and will continue whether you

12    make that arrest or you don't make that arrest.

13    No change in the circumstance is visible to that

14    police officer and that futility and frustration,

15    it seems to me, leads inevitably to corruption.

16               As we talk about the distortion in the

17    policing and in the judicial system, I want to

18    mention a trend that I think is interesting in

19    the prosecution of drug cases recently --

20    particularly federal cases and that is -- the use

21    of what is called the reverse sting or reverse

22    buy operation.  As I say, as new techniques

23    develop, they very quickly become routine and in

24    the crush of business, no one challenges or

25    questions them.


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 2               It used to think, until rather

 3    recently, that when drug cases were made, at the

 4    very least, we knew that the defendant who is

 5    arrested and put on trial had access to

 6    substantial quantities of drugs because he

 7    brought them to the scene and provided them to an

 8    undercover police agent.

 9               Now, the trend is increasingly to

10    having an informant go out and produce a person

11    who says he's willing to purchase drugs.  The

12    drugs, of course, are being offered by the

13    informant and ultimately by the undercover agent.

14    So the informant is given tremendous latitude.

15    Basically, he's arrested for an offense, he's

16    told that he is going to prison for the rest of

17    his life unless he can produce somebody else, and

18    then sometime later produces somebody else.  That

19    person comes to the scene and is willing to at

20    least say that he has sufficient money to

21    purchase drugs and is arrested and charged with a

22    conspiracy to possess with the intent to

23    distribute those drugs, which is precisely the

24    same as if he had come with the drugs themselves.

25               This transfers governmental authority


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 2    and what ought to be governmental integrity to

 3    the most despicable people, the informant, the

 4    person who himself is facing severe sanctions.

 5    This person is traditionally and continually

 6    given tremendous latitude, and we do not even

 7    have the protection of knowing that the person

 8    who is arrested was really in the drug business

 9    before he met the informant.

10               The fact that this is taken so easily

11    and casually, it seems to me, is indicative of

12    just how far we have come in this.  It is a

13    product of the mythologizing and demonization of

14    drugs.  If it has to do with drugs, we will allow

15    it, purely.  That seems to be the tenor of the

16    times.

17               With regard to the judiciary, there

18    are other consequences and there are so many.

19    Just to take a few.  It seems to me, again, in

20    the federal system we lie to jury's, we sanction

21    this lie, and it makes me wonder why we do that

22    and whether we haven't lost our way.

23               Just to make it very simple, jury's

24    are told when they are sitting on large

25    conspiracy cases that they are not to be


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 2    concerned with the level of participation of a

 3    particular defendant, any level of participation

 4    is sufficient to put him within the conspiracy.

 5    And what they are essentially told is, don't

 6    worry about it, I, the judge, will be able to

 7    make reasonable distinctions when I impose a

 8    sentence.

 9               That would be fine, except that it is

10    not true.  Because when the jury convicts that

11    rather peripheral individual and it is time to be

12    sentenced sometime, the district judge

13    essentially says, "Really, I would like to give

14    you a sentence commensurate with your peripheral

15    role, but I'm faced with the guidelines that

16    determine your sentence on the basis of the

17    amount of drugs involved in the conspiracy and I

18    really have no discretion."

19               And it seems to me that our

20    willingness to do that makes clear that we do not

21    trust a system that jury's would convict such a

22    person if they were told that that person were

23    facing a mandatory 10-year imprisonment or some

24    such thing.  That makes me wonder whether we

25    ought to enforce laws which jurors cannot be


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 1    jbp              Adler                       155

 2    trusted to uphold.

 3               That is one of the many examples.

 4               Let me talk about something which was

 5    mentioned --

 6               MR. DOYLE:  Can you finish up in about

 7    five minutes.

 8               MR. ADLER:  Five minutes.  Let me be

 9    selective.

10               Let me talk a little bit about what

11    Jay Cohen said.  He said how can we abandon the

12    communities, the communities that seem to want us

13    to enforce the laws?

14               I'm very concerned about the young

15    minority male for the most part, although females

16    seem to me to be more and more a part of the

17    problem, partly because the sentencing guidelines

18    don't make distinction and they are subject to

19    the same mandatory terms.

20               It seems to me that there are very few

21    young people of whatever race, of whatever

22    economic strata, who want drugs in this city and

23    probably in the country who are unable to find

24    them.  Very few children or others don't use

25    drugs because they don't where to get them.


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 2    Which seems to me to be somewhat related to the

 3    question of what's going to happen if we legalize

 4    it.  We will have all these people now who find

 5    that they can locate the drugs, so they will

 6    probably try them.  Well, I don't think there are

 7    many who want them and can't find them now.

 8               What I am concerned about is how drug

 9    involvement looks to a young person growing up in

10    the inner city.

11               I would like drug involvement to look

12    like a pathetic human being lying in a doorway

13    unable to move, unable to function, perhaps

14    drowning in his own vomit.  That's how I would

15    like drug involvement to look.

16               How does it look now?  I think it

17    looks like the flashy people on the corner with

18    gold chains and BMW's, with guns and power, with

19    respect among their peers in the community.  It

20    seems to me they become role models.  That's the

21    product, that's the effect of the drug war of

22    prohibition.

23               Some will surrender to addiction, if

24    it is legalized.  They do it now.  I don't think

25    that there are many people who would surrender


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 2    their lives to addiction now who failed to do it

 3    because they are so responsible that because it

 4    is illegal they won't involve themselves.  They

 5    do it because they don't have that kind of

 6    thinking.  So we'll lose some.  We lose them now.

 7    But I think we can save the young person growing

 8    up in that community who does have talent, who

 9    does have ambition, who has a future.

10               Now what does he have to do in order

11    to make that future come about?  He has to

12    survive the random violence that bystanders

13    suffer from when gangs fight over turf, made

14    valuable only by the inflated cost of the

15    prohibition.  He has to survive the seduction of

16    being brought into the business.  I mean here is

17    the person who, he's got talent, he's going to

18    school, he can earn $1000 a day.  Maybe he'll

19    take a chance, he'll get into the business, he'll

20    try to earn a little money.

21               So if he survives it physically, what

22    happens?  Maybe he will get arrested.  Well, if

23    we arrest him, what have we done to his future?

24    It seems to me he doesn't have a chance.  We have

25    taken that away from him.


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 2               The only chance he has, then, is that

 3    America will remain in this folly, continue

 4    prohibition and he can make a great living as a

 5    drug dealer.

 6               Thank you.

 7               MR. DOYLE:  Thank you very much, Mr.

 8    Adler.

 9               Dan, do you have any questions?

10               MR. MARKEWICH:  Well, I just have

11    actually a comment that I must say as one of the

12    -- I don't really like to characterize this as

13    one the dissenters, I think we were partial to

14    the report, I'm very much struck by the image you

15    left us with in the end, and I shall incorporate

16    it into my thinking, because I think you are

17    right in stating that at least insofar as I hate

18    to use this word but for want of a better one --

19    and with anthropologist in the room -- the

20    underclass are concerned, the image of the

21    present as contrasted with what you would like to

22    see if the glamour and profits went out of the

23    industry is a very striking one, and I will

24    incorporate it into my own thinking on the

25    subject.


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 2               MR. ADLER:  Thank you.  I will be very

 3    happy to talk to you more about it.

 4               MR. DOYLE:  Agatha.

 5               MS. MODUGNO:  No questions here.

 6               MR. DOYLE:  Were you here for Judge

 7    Sweet's testimony?

 8               MR. ADLER:  I was.

 9               MR. DOYLE:  One question that does

10    continue to be of concern to me is people under

11    18, because there is a model that would still

12    have prohibition in effect, I think the way Judge

13    Sweet was visualizing it, and so the question I

14    have is some of the element of the attractiveness

15    of a black market still going to be around even

16    if we have kind of an alcohol-tobacco-type model

17    of legalization.

18               MR. ADLER:  Far less than we have now

19    for these reasons.

20               Number one, it seems to me what we

21    have now is, we have abandoned the opportunity to

22    educate.  We hear talk about the need to educate.

23               Education requires credibility.  If we

24    tell our children just say no when they look at

25    the adult society participating in the use of


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 2    drugs daily, whether it is alcohol, tobacco,

 3    Prozac, coffee, whatever, they simply reject us.

 4    They think we're ignorant.

 5               We tell them don't have sex.  We're

 6    not very effective in that area.  It seems to me

 7    the only opportunity we have to reach young

 8    people is to talk to them in a way that sounds

 9    real and sensible to them.  With drugs which are

10    available to adults like licorice available to

11    children, like other things that are dangerous to

12    children are available to adults, we can say to

13    them "You should not do this because they pose

14    dangers for you.  When you get older, you will

15    make your own decisions.  Let's talk about it.

16    Let's talk about it in a way that you can believe

17    me and you can believe that I care that you

18    understand why you shouldn't do it."

19               Those are things that we have lost by

20    demonizing the issue and taking ourselves out of

21    the ability to discuss it honestly.

22               In terms of the black market, I think

23    Dr. Feingold said very well we're going to cut

24    most of the money away.  So who is going to be

25    selling these drugs?


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 2               There will be penalties.  There are

 3    penalties for selling alcohol to minors.  One of

 4    the great penalties is that some person who is in

 5    the business of selling alcohol invests a great

 6    deal of money in the acquisition of a license.

 7    They don't want to lose that license by selling

 8    it to a child.  If an adult comes in and buys it

 9    and then gives it to a child, we punish that.

10    But where is the incentive for that person to do

11    it?  Where's the money?

12               MR. DOYLE:  Thank you very much.  We

13    are going to forgo any questions from the

14    audience because Justice Schlesinger is with us

15    and he has to get back to court at 2 o'clock.

16               I would like to thank Mr. Adler for

17    his very thoughtful and helpful comments.

18               (Applause)

19               MR. DOYLE:  Justice Schlesinger is a

20    Justice of the New York Supreme Court, a very

21    distinguished member of the court, and we very

22    much appreciate his joining us today.  Thank you.

23               JUDGE SCHLESINGER:  I thank you all

24    very much.  I did want to say initially I wasn't

25    going to direct myself to the report and its


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 2    contents.

 3               As a judge with some experience, I

 4    have to tell you frankly, I haven't made up my

 5    mind as to what I would want to do in this

 6    situation.  However, I think the Association is

 7    owed a great debt by all of us for contributing

 8    to what I consider to be a good, intelligent,

 9    public discussion of the issues that are raised

10    in the report, because I don't think that this

11    report and its recommendation will be accepted

12    very readily in our present political climate.

13               What I want to deal a little bit with

14    is the way I, as a Supreme Court judge in this

15    position now for about 20 years, see the war on

16    drugs as, in my experience and the experience

17    shared by most other judges, and I want to

18    suggest, perhaps, some things that would help

19    remedy or help in any way.

20               The war on drugs is, as I see it, in

21    our court -- and we have tens of thousands of

22    cases involving these $10 sales of a vial or

23    packets of heroin, and they are brought into our

24    system by the thousands every year.

25               The armies in this great war on drugs


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 2    are on one side, the law enforcement side and by

 3    and large the generals in that fight are

 4    politicians who want to be re-elected and want to

 5    be tough on crime and sometimes assign huge

 6    amounts of the public purse to enforcement of

 7    laws which are in some respects cruel, some

 8    counterproductive and some which solve no

 9    problems whatsoever.

10               The soldiers in the fight on the law

11    enforcement side are hundreds and hundreds and

12    hundreds of police officers, other law

13    enforcement people who derive their livings from

14    this war, their pensions from this war and have

15    stated interest in continuing this war on drugs,

16    because this is their livelihood.

17               On the other hand, as I see it, as I

18    sit in the court and I deal in my courtroom

19    probably disposing of 500 or 600 cases and

20    probably dealing with 50 or 60 -- 50 trials per

21    year.

22               I see the enemy in this war, whether

23    intended or not, I see the enemy in the war to be

24    hundreds and hundreds and thousands of basically

25    blacks and Hispanics from the ghetto areas of


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 2    this city.

 3               I have in my career, probably over 20

 4    years, tried 15 or 20 cases and maybe disposed of

 5    another 50, which involved more substantial

 6    quantities of drugs, involving kilos and multi

 7    kilos.  But this war I'm talking about is what I

 8    see.  And they are dragged in in these buy and

 9    bust operations which have been weighed down in

10    our court system in some alarming way.  To the

11    extent that our treasury is being spent not

12    productively.

13               Our priorities are not turned to the

14    solutions of violent crimes, rapes, robberies,

15    burglaries, arsons, which a court whose direction

16    should be spending time not to solve those issues

17    but see that they are resolved as quickly as

18    possible with the major resources that we have.

19               I will tell you that this great war is

20    fought in what I consider to be a highly cynical

21    way.

22               When these, I think, basically black

23    and Hispanic youngsters are brought in, they

24    range in age of 16 up to 20, 25 by and large.

25    They come into the criminal court and one would


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 2    think that on the first occasion that they are

 3    brought in that the system itself and law

 4    enforcement would be looking to, in some way,

 5    deal with the addiction of many of them and in

 6    some way with others to say this is your first

 7    brush with this system, you have violated a law

 8    and maybe you ought to spend a little time in

 9    jail.  I'm not talking about long periods of time

10    but a period of time that would at least make the

11    person aware that they violated the law and if

12    you violate the law maybe you go to jail.

13               But what we do in the system in a

14    rather cynical way is the District Attorney's

15    Office immediately offers by and large a plea to

16    a felony, with probation.  The defense lawyer

17    feeling in many cases that that the client is

18    going to be convicted likely on the evidence, and

19    they will go to trial and get at least one to

20    three years, will recommended to his client that

21    he take the plea.

22               The client is absolutely happy because

23    he goes outside of the courtroom and like Eddie

24    Cantor, claps his hands and "he ain't going to

25    jail," he's going right back on street, and the


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 2    court themselves will accept this kind of plea

 3    without looking into, at all, the question of

 4    alternative sentencing.  They have a disposition,

 5    that is, they have solved the case and on their

 6    record there was another disposition.

 7               If anybody tells you that the number

 8    of dispositions that a judge makes is not a very

 9    substantial factor in weighing the effectiveness

10    of that judge, they are either lying about it or

11    they don't know what's going on.

12               The other cynical aspect about it is

13    that everybody at that time, the D.A., the lawyer

14    for the defendant and the court knows that what

15    we are doing here is creating a generation and

16    now we have created two generations of second

17    felony offenders.  We all know that within six

18    months, maybe a within a year, that very same

19    person who is given this great probationary

20    sentence will be back with us and then the system

21    under the circumstances puts the screws to this

22    person.

23               What the system says, certainly in New

24    York County, and Mr. Morgenthau's new guidelines

25    on the subject is, if you are a second felony


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 2    offender on a plea, the least you are going to

 3    get is three to six years, six years in prison is

 4    the maximum.  Minimum three years.  You go to

 5    trial you are going to get 4 1/2 to nine years.

 6    And that's when we put the screws to these

 7    people.

 8               I will tell you what we are doing in

 9    this system, that is, both in terms of sentencing

10    of the second felony offender.

11               It is inappropriate for the particular

12    crime to which these people are being sent to

13    jail for, by and large people without a record of

14    violence.  It is also disproportionate to what we

15    do on an everyday basis.  I have, almost on a

16    daily basis, given pleas in robberies, one to

17    three, six months in jail and five years of

18    probation.  I have given rapes, for particular

19    reasons, three to nine years.  And on the very

20    day we do that, we are sentencing somebody to 4

21    1/2 years to nine years for the second sale of a

22    $10 bag of whatever it is.

23               I have had situations in which on the

24    very same day some, I guess, 50 or 60-year-old

25    Hispanic woman appeared before me and had been


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 2    told that "No longer is three to six open to you,

 3    the minimum you will get is four to eight because

 4    you had the temerity to turn down the offer of

 5    three to six."

 6               I had a robbery, which through the

 7    magnanimous offer of the people, a robbery in

 8    which somebody was hurt and required stitches,

 9    was offered two months in jail and five years of

10    probation, which I would not approve.  But that

11    shows or illustrates the disproportionate

12    sentences they are meting out.

13               Now, I think that some steps had been

14    taken by the District Attorney's Office certainly

15    here in Manhattan and in Brooklyn, even before

16    the change in the law in what they call their

17    DTAP program.

18               The problem with the DTAP programs, as

19    I see it, the decision as to sentencing and what

20    should happen to somebody before a judge for

21    sentencing, it appears to me, is a highly

22    exquisite decision which should be decided by a

23    judge not by the District Attorney's Office.  If

24    these decisions were personally being made by Mr.

25    Morgenthau or Mr. Hynes as to whether somebody


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 2    should go under that program, I would say that's

 3    pretty good because I think very highly of both

 4    of those gentlemen.  But these decisions, which

 5    are very important to these people, are not going

 6    to be made by Mr. Hynes and they are not going to

 7    be made by his deputy and they are not going to

 8    be made by Mr. Morgenthau.

 9               The people who are going to make those

10    decisions is probably a young lawyer, man or

11    woman, who probably has had one or two or three

12    years experience, who is very anxious to rapidly

13    advance in a system in which sometimes toughness

14    is taken as a prerequisite to promotion, and that

15    those decisions are going to be made biased to

16    the DTAP program and have been.

17               I would suggest as bad as we judges

18    are, we are, by and large, much older, a good

19    deal more life-experienced, some of us have even

20    risen to where we have some wisdom.  We had a lot

21    experience as lawyers throughout our lives, and I

22    would suggest that our decision -- and this

23    really exquisite decision -- whether somebody has

24    to go to state prison or to be in a drug program

25    is one to be decided by judges, not by Mr.


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 2    Morgenthau's office and not by Mr. Hynes' office

 3    as much as I have great respect for these people.

 4               The last thing I wanted to talk about

 5    was there has been a change in the law.  That

 6    change in the law essentially means that it is

 7    possible for somebody who has his second small

 8    drug sale, if the prior one was a deal in an A

 9    felony, can be given as what I understand is an

10    immediate parole and as a condition to parole you

11    have to spend, I think, six weeks in some prison

12    drug facility, and after that you're on parole.

13               The problem with that one, again, and

14    why it will solve no problems whatsoever, is it

15    does require the approval and the consent of the

16    District Attorney's Office.  So we're back in

17    precisely the same pot as we were before.  We

18    will be using our public treasury to send people

19    to prison for long periods of time who don't

20    represent violent criminals.

21               We will be benefiting the soldiers,

22    the police and the other people involved in this

23    kind of buy and bust program and continuing their

24    employment and continuing the prospects of

25    pensions and that's the only thing we will be


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 2    accomplishing in my judgment.

 3               So it would be my sincere

 4    recommendation that the Association itself direct

 5    itself to some of these interim problems while

 6    the greater problems are awaiting, the bigger

 7    problems are awaiting some resolution in the

 8    public sphere.

 9               I thank you.

10               MR. DOYLE:  Thank you very much.

11               (Applause)

12               MR. DOYLE:  Let me go to my right.

13    Agatha?

14               MS. MODUGNO:  No.

15               MR. MARKEWICH:  Judge, a number of

16    years ago Roger Hayes and I were eating lunch and

17    maybe we had something to drink, I don't know,

18    but we were speculating on the whole criminal

19    justice system.  I think at the time it was a

20    problem -- you were probably Hogan's Chief of

21    Trials or Morgenthau's Chief of Trials at the

22    time, and it went beyond, of course, the drug

23    area, but we were thinking about how everybody

24    has an investment in the continuation of crime,

25    that is to say, the judges do, the prosecutors


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 2    do, the defense attorneys do, the parole

 3    officers, probation officers, police, correction

 4    officers, et cetera.  And we kind of figured out

 5    roughly that if we stop enforcing crime

 6    altogether and abolish all the positions, we

 7    could give everybody who had previously been a

 8    criminal something like $50,000 and send them on

 9    their way.

10               But as brilliant as that solution was,

11    or seemed, over a couple of beers, obviously, it

12    would create a greater social problem than it

13    would solve because as many people as there may

14    be if they receive $50,000 would stop committing

15    crimes there would be still be a large number who

16    might continue to commit serious crimes.

17               So exclusive of this report and with

18    due recognition of the fact that there is a lot

19    that's wrong with the system and there are a lot

20    of people who wanted to maintain the system as it

21    is for reasons that involve, among other things,

22    their own job security and, indeed, I think the

23    size of your own court might shrink by some

24    degree, at least with regard to the Acting

25    Justices, if the drug laws were not enforced to


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 2    the degree that they are, what are your own

 3    thoughts on what we might do to succeed in

 4    dealing with this, call it social problem or call

 5    it criminal problem or call it physical health,

 6    mental health problem to reduce the costs to

 7    society economically and socially?

 8               JUDGE SCHLESINGER:  One of the

 9    suggestions I do have so that the court can

10    concentrate on what I consider to be priorities,

11    that is, as to violent crimes and to have some of

12    our resources directed in those areas, is, I

13    think, in some way to take these small drug cases

14    out of the Supreme Court, to create a new body

15    called a court, like a justice of the peace

16    court, in which mandatory sentencing will not be

17    required, in which you don't have to be a fully

18    elected judge because most of the decisions made

19    by these judges in buy and bust cases can be made

20    by a hearing officer without the training and

21    background of a judge.  They are very simple

22    issues by and large.

23               I would, again, have advance remedies

24    that there are alternatives to jail sentences.

25    Drug programs and matters of that sort.  I think


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 2    that in the end it would be cheaper and probably

 3    more efficient because the kind of drug war we

 4    see in our courts is really an environmental

 5    problem in these neighborhoods.  That's precisely

 6    what I am saying.  I think we ought to have

 7    courts or bodies that meet that neighborhood

 8    environmental problem in a way which saves some

 9    of our public money, permits us to concentrate on

10    violence in our society, which is a constant

11    threat to each and every one of us every single

12    day.

13               That's in general what I think should

14    be done in the shorter run, before the great

15    public decision has been made as to whether we

16    should legalize drugs and what drugs.

17               MR. DOYLE:  Judge, what is your sense

18    of that broader proposal?  The main thrust is

19    that it would take the profit motive away from

20    all these dealers who are constantly in the

21    system, the ones you have been describing.  They

22    are in it for an economic motive.  What is your

23    view of that?

24               JUDGE SCHLESINGER:  I don't

25    necessarily disagree with the positions taken by


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 2    the Bar Association in the report.  I do

 3    understand and also appreciate the arguments

 4    against decriminalization that have been made by

 5    a lot of our public servants, particularly Mr.

 6    Rangel and others, who feel that the legalization

 7    of drugs, hard drugs, is in effect consigning

 8    youngsters, blacks and Hispanics, in these ghetto

 9    to areas to a life of drugs.

10               I think there is perhaps something

11    that can be said for that.  I haven't made up my

12    mind about it.

13               I just feel we have to give an awful

14    lot of public discussion and intelligent

15    discussion to what we do in the realities of the

16    situations we face.  It may be that certain drugs

17    should be legalized, others not.

18               But I do think that whatever is

19    decided ultimately has to be decided in some way

20    addressing ourselves to the concerns that have

21    been raised by Congressman Rangel and others who

22    have spoken on the subject.

23               MR. DOYLE:  I think we have time for

24    one question from our audience.  If there are any

25    questions at this point?  If not.  I thank


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 2    Justice Schlesinger -- do you have a question?

 3               A QUESTIONER:  Hi.  I was just

 4    wondering if all those hundreds and thousands of

 5    people who you say come through your courts every

 6    year for the many years you have been there, if

 7    you can maybe comment on how many you think have

 8    had sufficient education, some sort of job

 9    skills, were any of them qualified for decent,

10    legal work or was this perhaps one of the only

11    options they had available for income?

12               JUDGE SCHLESINGER:  I can answer that.

13    I think very few.  And often if I take a plea in

14    a case where I know the fellow is going to get

15    four and a half to nine years or three to six

16    years or something like that, and the person

17    appears to me to be intelligent and articulate, I

18    stand at the the defense table or sit and I say,

19    "You appear to me to be a very nice, articulate

20    young man.  How did you get involved in this?"

21               One of the fellows said to me, kind of

22    sadly, "Judge, you're never going to be able to

23    understand.  You have to live in my street to be

24    able to understand how I got into this problem."

25               I asked the same question of a guy


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 2    just the other day.  A fellow about 45 involved

 3    with his third or fourth drug conviction and had

 4    to go to jail, probably four and a half to nine,

 5    something like that.

 6               I said, "You look to be an intelligent

 7    man, how did you get involved in this stuff?"

 8    This guy looked at me and said, "You know, I have

 9    been an addict all of my life and I'm not a

10    robber and I don't burglarize.  This is the way I

11    make money to feed my habit.  I sell."

12               So, by and large, the people we get

13    are not going to have the skills that you are

14    talking about at all and they are involved in it

15    for a whole range of problems, many of them I

16    think societal, economic, social, et cetera.

17               And I just have to deal with them as

18    best we can.  The present way we are dealing with

19    it, I don't think is the best we can, pr the best

20    we can do.

21               MR. DOYLE:  Yes.

22               A QUESTIONER:  I wondered, I was very

23    impressed by Mr. Van Gestel's report that there

24    is a lot of activity in the Massachusetts area in

25    trying to change the set up.  I was wondering


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 2    whether you would recommend something should be

 3    happening in New York among the judiciary.

 4               MR. MARKEWICH:  Can I add to that

 5    question, just by noting as an acting village

 6    justice myself I note that and therefore am

 7    fascinated by your more or less description of us

 8    as kind of an environmental court.

 9               I note that we get directives and

10    advice and teaching materials from OCA all the

11    time and the same question cropped up in my mind

12    when I heard him speaking.

13               JUDGE SCHLESINGER:  I have to be fair

14    to judges.  I think by and large most of the

15    judges that I know and some that I don't know

16    whose views I hear, I think they by and large

17    feel the inequities of the present system as we

18    understand it.

19               I don't think there has been at all on

20    any organized basis some education of judges to

21    the problems that have been before them all of

22    the time of people on drugs, addicted people, et

23    cetera.  There is not very much happening in the

24    court system to do it.

25               I don't think the court system as a


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 2    whole, we judges as a whole have taken an active

 3    enough part in trying to fashion changes in law

 4    and make changes in that law.  There are lots of

 5    reasons for that.

 6               I think, one, that judges by and large

 7    don't like to take active positions in any area.

 8    That I will say.  I think one of the problems in

 9    our system and why there isn't a greater voice by

10    judges because of our system which involves

11    Acting Supreme Court Justices, which I don't

12    think we should have.  I think it is a terrible

13    system.  I think there are an awful lot of acting

14    judges who know that they are going to be seeking

15    elective seats in the Supreme Court, and they are

16    going to go before a million panels and they are

17    going to go before 3 million politicians and,

18    therefore, there is no great temptation to step

19    on anybody's toes.  Therefore, I don't think,

20    frankly, that we as a judiciary have been very

21    active in dealing with these subjects nor have

22    the organizations which appear to represent us as

23    judges.

24               I don't think we have done enough.  I

25    don't think that the administration has done


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 2    enough in this area whatsoever.

 3               I thank you all so much.  It was a

 4    pleasure being with you.

 5               (Applause)

 6               MR. DOYLE:  That concludes our

 7    hearings.

 8               And I, again, would like to thank Mr.

 9    Pirozzi and his firm, Pirozzi & Hillman, for

10    joining us this morning and working on a pro bono

11    basis to do the transcript.  And I thank all of

12    the members of the audience for their interest

13    and participation.

14               (Time noted:  1:28 p.m.)

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