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1
The Committee on Drugs and the Law
Public Hearings on a Report:
A Wiser Course: Ending Drug Prohibition
Held at
The Association of the Bar of the City of New York
42 West 44th Street
New York, New York 10036
on
October 11, 1995
Q & A Reporting Service
175 Main Street
White Plains, New York 10601
(800) 675-EBTS
BY: Traci L. Collins, R.P.R.
Q & A REPORTING SERVICE (800) 675-EBTS
2
PANEL:
Edward Davis - Chairperson
Nancy Breslow
David Affler
Jack Frolich
John Trubin
Charles Knapp
SPEAKERS:
JAMIE FELLNER, ESQ.
Association Counsel, Human Rights Watch
KEVIN B. ZEESE
Interim Executive Director,
Harm Reduction Coalition
JEFFREY C. MERRILL
Vice-President, Center Addiction & Substance
Abuse, Columbia University
HON. ROBERT SILBERLING
Special Narcotics Prosecutor
DAVID C. LEVEN, ESQ.
Executive Director, Prisoners' Legal Services
and PRDI
Q & A REPORTING SERVICE (800) 675-EBTS
3
MR. DAVIS: Welcome back everyone to the
fourth session of these hearings of the Special
Committee on Drugs and Law, the Association of
the Bar of the City of New York. On our
schedule to speak next was George Bushnell, the
recent past President of the American
Bar Association. Unfortunately, Mr. Bushnell
is not able to travel today from Detroit.
We're very lucky to have the opportunity to
invite Dr. John Morgan to speak to us during
this time. Dr. Morgan is a physician and
clinical pharmacologist. He is a professor at
the City University of New York School of
Medicine. Welcome, Dr. Morgan. Thank you for
coming.
DR. MORGAN: It's a pleasure to be here.
Thank you for making space for me. I will
speak very briefly, in part because I have to
be at York College at 3:00 to lecture. I don't
know if I'm going to make it, but we will see
if I can.
I think I'm one of the few people involved
in the drug policy debates who is
professionally involved with drugs. My entire
professional life I have been a pharmacologist
with the responsibility of teaching medical
students and others how to evaluate claims,
studies, anecdotes and general expressions
about what drugs do to people and what drugs do
to the populace. Although there may well be
many in the drug policy field who don't agree
with the interpretations that I make of data,
my background at least prepares me for the
evaluation of such claims.
People are prone to make claims about the
good that drugs do both in terms of their
therapeutic benefits and the good that drugs do
for them in terms of emotive states or even
recreational use. Of course, on the other
side, people are very prone to make claims
about the harms that drugs do both to
individuals or to individual tissues or to the
society as a whole. So, I have always enjoyed
this being part of my life; that is the
evaluation of drug claims: Therapeutic, toxic
or otherwise, and bringing to them my training
in medicine and science.
So when I thought about the brief period
of time I had with you today, I wanted to talk
about just one issue. I initially thought I'd
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4
talk about two.
One of the claims that I would not be
surprised if you've heard during this time or
will hear and one of the claims that's
frequently made is that, after all, Federal
Prohibition of alcohol was very good for the
nation's health. Many of my friends who are
physicians will say well, yes, I know we
generated a criminal enterprise and it was an
enormous problem, but still, things were much
better. We had fewer alcohol related deaths.
There was this really great burst of healthful,
temperance-based American life.
For a long time I wondered about those
claims and finally decided to see if I could
find something out about them. I have here
four pictures. I'm going to use three of them
to talk briefly about the claims that
prohibition was good for the nation's health.
The first is headed "Prohibition Public Health
and Safety" and it has to do with death rates
from disease associated with alcohol use from
1900 to 1930.
These data were collected by a man named
Warburton for his 1932 thesis from Columbia
which was entitled "The Economic Outcomes of
Prohibition." People are critical of
Warburton. He was, after all, funded as a
graduate student by prohibition opponents, but
still, most individuals still use the data he
collected regarding this argument. So, I
direct you to the three separate reports of
cirrhosis of the liver under 1, 2 and 3 and
these just reflect separate reporting entities,
various registration areas of the United States
and the Metropolitan Life Insurance Company.
It's easy to note that a decline in the
prevalence of prohibition had begun in the
United States by the turn of the century.
There's some arguments about when this decline
began. Some people date it to 1907. Some
later on, but the apparent benefits of
prohibition claimed by many that there was a
decrease in cirrhosis of the liver for
instances not easily attributable to the
federal law of prohibition because any decline
in cirrhosis began perhaps at the turn of the
century, and I would like you to look very
carefully at 1920 and note that from 1920 to
1930, and Warburton was collecting these data
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5
in 1932, so they were as good a data as were
available, you will notice that the prevalence
of cirrhosis increased in the United States
during the time of Federal Prohibition.
Most everyone, actually even those who are
on the other side of this argument agree, that
the prevalence of cirrhosis increased during
Federal Prohibition.
Now, let me turn you to the next page.
This is a more modern graph. It comes from an
article by Newton and Myron, who are economists
at Boston University. They took Warburton's
data and manipulated them further in a variety
of ways, which I do not have to tell you about,
but you will notice again that from the turn of
the century there was a decline in most of the
adverse consequences associated with alcohol,
and it's generally believed that there was a
significant decline in alcohol consumption in
the United States well before Federal
Prohibition. It may have begun around 1910.
It may have begun in 1900. Again, individuals
argue about this. But you will notice that.
And, of course, there is a very important
decline in alcohol consumption during the first
world war. We had formal Federal Prohibition
of alcohol during World War I and many of the
individuals who might have been consuming much
alcohol were of course overseas fighting
battles. So there was a significant decline as
far as anyone can tell in alcohol consumption
between 1915 and 1918.
Now, look at Newton and Myron's data and
look at the magic year of 1920 when Federal
Prohibition became important. Well, notice
from 1920 on that there was an increase, as
best anyone can tell, in all of the adverse
consequences of alcohol consumption.
There was an increase in alcoholism
deaths, a quite precipitous increase in
alcoholism deaths. There was an actual
increase in drunkenness arrests during Federal
Prohibition. There was an increase in
admission to American hospitals for alcohol
psychosis, and although it is not as noticeable
as it might be because the increase was
gradual, there was an increase in cirrhosis;
quite notable as I pointed to you on the former
pages and, in fact, notable here although
slight.
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In fact, both Myron, and earlier
Warburton, had used these proxies to estimate
the consumption of alcohol during Federal
Prohibition, and they came to the same
conclusion, that alcohol consumption increased
in the United States during Federal
Prohibition.
Using these proxies, the prevalence of
cirrhosis, alcoholism psychosis admission
rates, drunkenness arrests, it appears to
people who have to make economic projections,
without adequate data, that the consumption of
alcohol increased during Federal Prohibition.
The third cite I wanted to show you is one
that was provided to me by an Australian
scientist, a pharmacologist named
Greg Cheshire. Now, what I've learned from
Dr. Cheshire and what I've learned now from a
variety of other sources is that the decline in
alcohol consumption and the decline of the
prevalence of cirrhosis was a global
phenomenon. Beginning about the turn of the
century, for reasons that are to me unclear,
and to most people who write about it, alcohol
consumption and the prevalence of cirrhosis
began to decline in the world around 1900.
That is, if we can accept the scattered pieces
of data: The data from the United States, the
data from Great Britain, the data from Denmark
and the data from Australia, that this decline
was really quite notable and occurred basically
everywhere in the world where data were
maintained. So, if you look at the Australian
prevalence of cirrhosis, you'll see it was
higher than the American prevalence of
cirrhosis. You'll see it began a gradual
decline. Now its decline remained gradual
until about 1920, while we had a more
precipitous drop, in part, because of
World War I, and in part because of a variety
of other factors, but you'll note in 1920, when
Federal Prohibition came into effect, that the
prevalence of cirrhosis as calculated by
Australians, probably from the same data that
you saw in my first paper, began to increase,
and increased quite markedly until 1930.
Look at the Australian data. The
Australian prevalence of cirrhosis continued to
decline; although slightly, it continued to
decline. It continued to decline in Great
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Britain. It continued to decline in Denmark.
It continued to decline in Australia. It
continued to decline everywhere where the data
were maintained except the United States.
Federal Prohibition was so bad for the
nation's health that it's almost incalculable.
Not only did we generate a monstrous criminal
enterprise -- Pablo Escobar is the Al Capone of
the 1920s -- it generated enormous episodes of
poisoning. One of the things that I've written
extensively about is the episode of paralysis
that occurred in 1929 and 1930 in the United
States because of contamination of a popular
prohibition beverage with a toxin to the spinal
cord.
The potency of beverage increased
markedly. Haywood Hail Bruin (phonetic) said
Prohibition made the United States change from
a nation of good beer drinkers to a nation of
bad spirit drinkers.
Most of the decline prior to Prohibition
occurred in the consumption of beer, and what
happens is what always happens; the iron rule
of Prohibition: That the material smuggled is
more potent. One smuggles distilled spirits
across the Detroit river rather than beer. One
smuggles powder cocaine from Columbia rather
than coca leaves. One does not try to market
coca beverage, which was legal at the turn of
the century. One begins to market a more
potent and dangerous product.
So I believe what happened in the United
States was in addition to the marketing of
potent, more dangerous material, the generation
of the criminal enterprise, we actually caused
much more harm of the harm we know is
attributable to alcohol because people
continued to drink at a committed rate and,
indeed, consumed more powerful beverage because
of the phenomenon of Prohibition.
So, in the rest of the civilized world, in
the rest of the world where data were
collected, the prevalence of cirrhosis declined
quite steadily until 1920, and in the rest of
the world a smaller decline occurred.
In the United States prevalence declined
until 1920 and then began to go back up again
because of the poisonous effects of
Prohibition.
Prohibition is universally bad for the
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8
nation's health. It was in the 1920s and
1930s. It continues to be so for those same
reasons.
Let me close by telling you that Newton
and Myron did a calculation based on these
proxies for alcohol consumption and estimated
that Prohibition was attended by an increase in
alcoholic beverages from 1920 until about 1933.
They believe that the removal of Prohibition
caused no increase in alcohol consumption in
the United States.
It is frequently stated that alcohol
consumption went up significantly after
Prohibition. Their paper published three years
ago says that no, alcohol consumption did not
go up in the United States again until
World War II. And so from the post prohibition
period, although this requires estimation and
the use of proxies, there was actually no
increase in alcohol consumption with the end of
Prohibition. So, Prohibition does nothing of
what it claims. It does not help. It harms.
It does not do what it claims to do, which is
to decrease the consumption of dangerous
product.
In fact, I would say that because of
merchandising, franchising, the heat of the
illegal market, one of the ways to ensure the
increase of consumption of a dangerous product
is to prohibit it.
Thank you for the time you've given me and
I'll be happy to answer a few questions.
MR. DAVIS: Thank you, Dr. Morgan. Any
questions from the panel? Mr. Knapp?
MR. KNAPP: Thank you. Dr. Morgan, you
mentioned that the phenomenon, if the numbers
could be believed, of a worldwide decline in
alcohol consumption started around the turn of
the century for reasons that are unclear. I
would ask if you could elaborate on the
competing theories as to that phenomenon.
DR. MORGAN: One of my friends in
sociology always reminds me that important
social events are over determined; that is one
can draw a long list. First of all, the
temperance movement clearly mattered. There
were many people, particularly in the western
world, who believed in the dangers of alcohol
and who encouraged people not to drink and who
encouraged their children not to drink, and who
Q & A REPORTING SERVICE (800) 675-EBTS
9
encouraged church affiliation and a variety of
other things and taking of the pledge.
There is a possibility that the
immigration to the United States increased the
amount of wine consumption. There are many
people who believe that that was a significant
possibility, Mediterranean immigrants in
particular. So that wine became more popular
in the United States in the years prior to
Prohibition. There were a variety of
movements.
There is some possibility, there is some
speculation, that alcohol diminished hazards
because again of diminished proof and better
preparation, although I know of very little
evidence for that.
So, when I talk with my friends who are
prohibitionists, I admit to them that the
social movement to try to get people to drink
less alcohol may have been a positive phenomena
in the United States. The mistake was adding
to it the power of law.
MR. KNAPP: Let me just follow up very
briefly. You separated out wine consumption;
that may have gone up. So --
DR. MORGAN: Yes, wine consumption may
have gone up in the United States from the turn
of the century because of the important
immigration of Mediterranean people who drank
large amounts of wine. So, wine is inherently
safer than distilled beverages although one can
certainly give oneself cirrhosis with wine. If
you're a committed enough drinker, you can do
it. It's just a harder job.
Also the patterns of wine consumption in
the Mediterranean nations have tended to be
fairly safe patterns. Italy has a relatively
low prevalence of cirrhosis despite a fairly
high per capita consumption of alcohol. So,
there's a possibility, and again, these are
scholars who write about these phenomenon, and
they're very hard to evaluate, but that the
shift, prior to Prohibition, toward wine was a
very positive event and then with Prohibition,
although wine drinking continued in the United
States, beer drinking was then replaced.
I should mention one other factor to you,
and that is that beer consumption may have
decreased in the United States because of the
fact that it was German, and that the legacy of
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10
World War I was to turn people against places
where beer was sold and the consumption of
commercial beers because they were identified
with Germanic peoples; so that the dilemma is
that spirit consumption increased during
Federal Prohibition.
MR. KNAPP: One last question. After
Prohibition was over, do you have any
statistics to show that there was a change in
the mix of spirits, hard liquor, versus beer?
Did it re-establish the old proportions or not?
DR. MORGAN: Not the old proportions.
There have been some shifts in recent years
away from distilled spirits, but from
Prohibition probably until the '60s we remained
a nation which consumed significant amounts of
distilled spirits; although we continued to
drink beer. Beer came back. And we continued
to drink wine. Basically our change to
distilled spirits remained an important factor
in the United States until the 1960s and '70s
when it began to turn down again.
MR. KNAPP: Thank you.
MR. DAVIS: Dr. Morgan, I'd like to ask a
quick question.
DR. MORGAN: Yes, sir.
MR. DAVIS: Just to help us interpret the
data you've presented this afternoon, what
amount of time generally passes between a
period of heavy consumption of alcohol by an
individual and death by cirrhosis?
DR. MORGAN: This is one of the very
difficult dilemmas these data and other data
face. It is generally believed that a
significant amount of time, three to four to
five years, is required of committed drinking
before one can do enough hepatic liver damage
to bring about cirrhosis.
One of the reasons that's difficult to
interpret is that during the period 1920 to
1922 there was significant stockpiling of
liquor in the United States. There was a
significant drinking of what had been saved
against the idea of Prohibition, and also the
death from cirrhosis appears to require active
drinking at the time. People who have become
abstinent apparently seldom die of cirrhosis,
or who have become temperant, but if
individuals continue to drink, they will die
even if they've had a period of time before of
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temperance. So this confuses all of these
data. I certainly admit they do, but I think
all in all it adds up to the fact that alcohol
consumption either held its own or increased
steadily and it was of the more dangerous type.
MR. DAVIS: Thank you.
DR. MORGAN: Thank you.
MR. DAVIS: Do we have time for any
questions from the audience, Dr. Morgan?
DR. MORGAN: Sure.
UNIDENTIFIED SPEAKER: I just wondered in
Europe where they didn't have a phenomena like
Prohibition, is there any way to tell if there
was any shift in Europe between wine and beer
to more powerful spirits independent -- I mean
did that happen in Europe even though they
didn't have Prohibition?
DR. MORGAN: No. The general belief, of
course, is that the European countries which
Professor Harry Levine has characterized as
temperance cultures, that their relatively high
consumption of distilled spirits continued, but
in the wine and beer cultures there wasn't much
of a change, and that's the general reason for
the belief that there was not much increase
during the same time that we had an increase.
There is, I'm afraid, much argument about
this. There are people who believe that in
Great Britain serious attempts to regulate
alcohol consumption came into place during this
time. There was the temperance movement in
Britain. There was some evidence of people
being concerned: So pub closures, and holiday
times; I mean holidays during the day, the pubs
being closed from 2:00 to 5:00; that these
factors may have led to this continued, slight
decline in cirrhosis. There was certainly no
large shift toward distilled spirits in the
rest of the world.
UNIDENTIFIED SPEAKER: The only other
thing that has nothing to do with drug abuse
actually, it's just that I've read sort of
epidemiologic investigations into fertility
rates over the last few hundred years. They
seem to rise and fall precipitously over
periods of time and have absolutely nothing to
do with any factors that you could consider.
I just wondered if there was any way to
look into this and see if there might be a
correlation between fertility rates rising and
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falling for no good reason or --
DR. MORGAN: I can't comment on that.
I've certainly heard people make a variety of
speculations that fertility rates fell,
particularly during times of bad nutrition, but
I can't say anything about that.
UNIDENTIFIED SPEAKER: Or the weather or
something.
Thank you.
MR. DAVIS: One more question.
UNIDENTIFIED SPEAKER: Your last comment
leads into the question I was going to ask. Is
there any other reason why cirrhosis increased;
that is, could it be because of nutrition or
any other kind of factor that caused it other
than alcohol?
DR. MORGAN: That's a very fair and
pertinent question. I know of no others. In
fact, the general economic well-being in the
United States went up during the time of
Prohibition. From 1920 to 1930 we were in a
period of general economic increase. There was
actually more money spent on automobiles and
milk and food stuffs from 1920 to 1930. Of
course, 1930 was the time that things begin to
fall apart, but during this period of time
there was no reason to believe that there were
other important causes of cirrhosis other than
alcohol.
UNIDENTIFIED SPEAKER: Are there any other
factors that do cause cirrhosis of the liver
other than alcohol? Could you name just a few,
just so we have some idea?
DR. MORGAN: Sure, there's viral hepatitis
which can result in cirrhosis. There are
poisonings with materials like carbon
tetrachloride and other industrial chemicals.
The rule of thumb that alcohol consumption
cirrhosis scholars give is it's their general
belief that 70 to 75% of cirrhosis is due to
alcohol consumption. There are clearly other
factors. They still are not terrifically
important in the overall scheme.
MR. DAVIS: Thank you very much,
Dr. Morgan. Please apologize to your students
for us for detaining you.
I'd like to take this opportunity to thank
our court reporter who has been provided as a
donation to the association by Q & A Reporting
Service. The reporter is Traci Collins.
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13
Thanks.
It's my pleasure to introduce our next
speaker, Jamie Fellner. Miss Fellner is
Associate Counsel for Human Rights Watch, which
is this country's largest international human
rights organization. She is the director of a
special project to examine the human rights
implications of counter-narcotics policies.
Miss Fellner is a Latin American specialist and
a lawyer educated at Stanford University and
Berkeley. She has worked as an officer and a
consultant to numerous foundations concerned
with human rights and development in Latin
America.
Thank you for coming.
MS. FELLNER: Good afternoon. I'm
delighted to be here to speak today about a
subject which I don't believe has been
addressed yet by this committee in these
hearings, which are the human rights
consequences of counter-narcotic policies.
First, let me say a couple more words
about Human Rights Watch for those who are not
familiar with our organization. Human Rights
Watch works to expose and stop human rights
abuses in every region of the world without
regard to the political, ethnic, religious or
other nature of the offending government or of
the victim. We focus on such problems as
summary executions, torture, arbitrary
detentions, restrictions on freedom of
expression and assembly, using the standards of
universal civil and political rights as
embodied in the international laws and
treaties.
As drug trafficking has spread around the
world with ever larger numbers of countries
serving as producers, transit countries and/or
consumers of psychological drugs, so have
national and international counter-narcotic
programs and policies.
Other organizations and researchers have
documented the failure of these programs to
curtail the growth of the elicit drug business.
Our concern, however, is quite different.
As a human rights organization we have
become increasingly aware of the adverse impact
many of these policies have on human rights.
Not just the rights of drug producers and
consumers, but the rights of many others as
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14
well who become victims of abusive efforts to
detain and prosecute drug offenders. We have
also become increasingly concerned about the
corrosive impact many drug policies have on
national institutions. There has been
considerable public attention given to the
threats drug traffickers pose to democratic
institutions, particularly in countries with
new or fragile democracies. There has been far
less analysis and even less willingness to
consider the threats posed by counter-narcotic
programs themselves to these democracies.
What we see in numerous countries,
however, is that in weak democracies with
fragile institutions, with underfunded,
overburdened, undertrained, understaffed and/or
inefficient law enforcement and judicial
systems with little tradition of public
accountability and participation,
counter-narcotic laws can have the perverse
effect of undercutting the rule of law and of
weakening the very democracies it purports to
strengthen.
Now, why should this matter to you as you
consider the question of criminalization and
prohibition in the United States. There is no
question that many countries, for example,
China and Iran, are fiercely committed to the
criminalization of drug use to the extent of
executing thousands of traffickers as a just
released report by Amnesty International
discusses, and they do so with little input
from the United States. But the fact remains
that in many other nations as well as
international forum, the United States plays an
overwhelming role in determining the shape and
drive of drug policies. The United States uses
its economic and diplomatic leverage to press
for the prohibition and criminalization
approach to drugs that mirrors that in this
country.
The United States constrains the options
available to other countries, including their
ability to even consider alternative approaches
to drugs that might reduce the current levels
of violence and corruption that these countries
experience.
What I want to do today is simply alert
you quickly to some of the human rights
consequences of criminalization policies. We
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15
believe it imperative that these consequences
be acknowledged as the costs and benefits of
drug policies in the United States are weighed.
I'm going to focus primarily in the examples I
use on Latin America, both because it is the
source of the world's cocaine supply, and hence
has been a primary focus in the last decade of
U.S. counter-narcotic efforts.
I'm going to talk first on the impact on
judicial systems and processes. The
administration of justice in Latin America has
long been deeply troubled. Courts are
undermined by politization, inefficiency,
understaffing, antiquated procedures.
Corruption is endemic, but the effort to
prosecute drug traffickers has greatly
exacerbated existing problems and added new
ones.
I forgot to state the obvious, which is
that in all these countries, for example, the
cocaine producing countries of Bolivia, Peru
and Columbia, drug trafficking is illegal. The
consumption of drugs and the sale and
distribution of drugs is illegal. It's
basically the same legal framework, in terms of
what is criminalized, as exists in the United
States.
As I was just saying, the effort to
prosecute drug traffickers has exacerbated the
existing problems in judicial systems. Let me
give you a couple of examples.
In Columbia in the late 1980s the
government began to mount a serious frontal
assault on narco traffickers in response to the
failure of negotiation with the drug
traffickers, rising levels of violence from the
drug traffickers to counter-government
initiatives, and in the escalating battle, the
government began to change its legal systems.
It permitted police to hold suspects seven
days without charges and held them
incommunicado, including without access to
lawyers.
It permitted the military to conduct
warrantless searches of private homes.
Some of these various assaults on
traditional due process, guarantees and
liberties, including weakening of habeas
corpus, were subsequently modified. So I'm not
saying they all exist today. Some existed for
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16
a year or two. Some still exist today. I
wanted to give you a sense of the kinds of
steps that have been taken.
The government also responded to the
crucial problem they confronted in trying to
bring narco traffickers to trial. The drug
traffickers were quick to offer judges either
gold or lead, to use a Spanish expression.
They could either accept bribes or receive
bullets.
To protect the judges from bribery,
intimidation and reprisals, Columbia created
special courts with special procedures. Drug
trials to this day are presided over by judges
whose identity is kept secret; they are
faceless judges; and testimony can be received
from faceless, secret witnesses. Well, those
of you who are lawyers or who are familiar with
any notions of due process and civil liberty
probably find that rather astonishing.
Obviously, the anonymity of judges
undercuts the sense of personal responsibility
needed to ensure care and impartiality in the
delicate task of assessing guilt. Allowing
witnesses to remain secret obviously denies the
accused the ability to probe into a range of
matters affecting the credibility of the
testimony.
An even more dramatic case of distortions
in the judicial system is present in Bolivia.
Bolivia is the world's second largest producer
of coca leaf and a refined cocaine. Under
strong pressure from the United States Bolivia
passed a law called Le Mil Ocho, Law 1,008, in
1988 which established special courts and
procedures for drug cases.
Under this system drug defendants are
denied any possibility of pre-trial release no
matter how minor their role in an alleged drug
trafficking situation was.
A woman who is alleged to have been
carrying a small amount of drugs on a bus can
be put in jail without bail or any other form
of release until she's tried. Not only are
they held without release prior to trial, but
even if acquitted, even if found innocent by
the trial court, they must remain in jail until
the Supreme Court has reviewed that judgment,
following a series of mandatory appeals. In
other words, given the problem with the courts,
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innocent Bolivians can remain in jail for three
to five years, often as much time as if they
had been found guilty or more.
There have been other changes in the
judicial system for drug traffickers in Bolivia
which I won't go into here. There is a report,
which I have put outside, which we just
released on Bolivia, "The War on Drugs," if
anybody would like to learn more about that
situation.
But primarily the point I want to make
here is that there are repeated examples of
countries in which governments in the name of
upholding the law, that is drug trafficking
laws, construct legal systems and procedures
that violate principles of due process and
other fundamental rights just the same way as
these erosions have happened in the United
States.
In addition, many of the systems that have
been constructed also permit other kinds of
violations. For example, long periods of
detention incommunicado facilitate torture and
disappearances. In fact, we see that violence
by drug traffickers in Latin America, violence
by which the traffickers seek to ensure their
ability to continue their rather lucrative
business, is not only notorious, but it has
been matched in many cases by the violence of
the government responding to them.
The world has been appalled by, for
example, killings in Columbia. The narcos have
killed Attorney Generals, presidential
candidates, judges, journalists, policemen.
But the world has been far less appalled,
because it has been far more ignorant, of the
unlawful violence that has characterized some
of the efforts to bring to justice those same
narco traffickers.
In Columbia the brutality of the narcos
has been, if not matched one for one, certainly
matched nonetheless by torture and
extrajudicial executions by the police,
particularly in the late '80s and early '90s
before Pablo Escobar was killed.
In Bolivia, today, the rural
counter-narcotics police who are created,
trained and funded to this day by the U.S. are
notorious thieves and thugs. They run rough
shod over the residents of the coca producing
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18
region. They steal money, food and goods
either directly or through extortion. They
beat people at whim and they detain them
arbitrarily. Alleged drug traffickers also
claim they are tortured.
In recent months, as Bolivia has tried to
comply with a U.S. ultimatum to eradicate
hectares of coca this year, the violence has
increased. There have been at least four or
five deaths in unclear circumstances at the
hands of the narcotics police and scores of
injuries.
What you see in Bolivia is a police with
no tradition of investigative and detective
work, a police which has traditionally relied
on coerced confessions, a police which has
traditionally been corrupt, and if not brutal
on the dimension of the Columbian Police,
nonetheless not known for its respect of
courtesies, is suddenly confronted with the
enormous external pressure translated into
internal pressure to produce arrests and
convictions of drug traffickers. It's not
surprising in this context that due process and
respect for the rights of physical integrity,
among others, have been sacrificed.
I could go on. I could talk to you about
torture in Mexico by federal police, which is
endemic and notorious. I could tell you in
Brazil about Operation Rio last year, a joint
military police effort to drive drug gangs from
Rio's faveles (phonetic) which resulted in
multiple cases of torture and several cases of
apparent extrajudicial executions, not to
mention hundreds of arbitrary detentions and
unlawful searches.
I could also talk to you about the death
penalty and the growing use of the death
penalty to respond to drug trafficking, and I
urge those of you who are particularly
interested in the death penalty to get a hold
of the new report by Amnesty International on
this subject just published last week, released
last week.
I want to turn quickly to another topic,
which is corruption. Violence is something
which traffickers rely on in Latin America when
they can't neutralize law enforcement efforts
through corruption. There is no question that
drug trafficking corruption jeopardizes
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19
democratic institutions and the rule of law.
The United States Government has signaled
corruption as a major threat faced by many
Latin American countries. However, corruption
and the complicity of law enforcement agents
with the drug trade also has human rights
consequences. For a fee, police protect
traffickers by looking the other way. They
assist traffickers by serving as hired guns.
For a fee public officials make sure drug king
pins are not arrested or prosecuted.
In Mexico, for example, corrupt police
routinely extort money from suspects in
addition to using torture to extract false
confessions. They fabricate charges and frame
suspects and then enjoy immunity in exchange
for payoffs to their superiors.
In Brazil, Rio police in 1993 killed 21
people in a massacre. At the time Human Rights
Watch thought the massacre was motivated by
retaliation for the killing of four policemen
by drug traffickers they thought the week
before.
In fact, further investigations have
uncovered that the motive was quite different.
The police had expected to do a little
extortion racquet when a shipment of cocaine
was due to arrive. Instead -- well, there was
a foul-up. Four policemen were killed by other
policemen, and in retaliation, another group of
police came in because they lost the shipment.
Among the indirect consequences of
counter-narcotic policies on the harm to human
rights is not only the link between corruption
and brutality. The notorious complicity of
many Latin American police and military in drug
trafficking weakens the legitimacy and
development of these institutions.
It's hard to construct a rule of law when
everybody knows police are on the take.
Similarly, the effort to build strong civilian
constitutional democracies is hampered by
bringing military into the war on drugs.
The U.S. has pressed and continues to
press hard for Latin American military to join
the fight. We believe, however, that an army's
role should be limited to national defense
against foreign threats. Bringing the military
into counter-narcotic operations not only
invariably means corruption and human rights
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20
abuses. It also invariably seems to weaken
efforts of civilians to establish the primacy
of the civilian role and the control of
domestic law enforcement.
I have a couple of minutes, I believe, and
let me just touch on one other issue, which is
distortions in U.S. foreign policy. Drug
trafficking has been placed in the pantheon of
threats to U.S. national security. It is
described by state department officials in the
dire dramatic terms formally used for the evil
empire. There are many within the U.S. foreign
policy establishment willing to promote
counter-narcotic objectives almost at any cost
and to make it the primary touchstone of
foreign policy within certain countries.
The United States is also, in its
eagerness to promote counter-narcotic
objectives, willing to overlook the human
rights consequences or other unintended harms
that follow, and Bolivia would be a prime
example.
The U.S. has used its leverage to press
for counter-narcotic objectives, but it has
failed to use that same leverage to insist on
strict compliance with human rights norms in
the pursuit of those counter-narcotic goals.
Bolivia shows also another distortion. The
U.S. threatened this impoverished nation with a
cut-off of multilateral loans on which it
depends if it did not meet a U.S. unilaterally
imposed goal for coca eradication.
Acquiescing to this U.S. demand has meant
the government has had to rely on state of
siege powers and has severely strained the
political fabric of this relatively new
democracy. Massive arrests, demonstrations,
road blocks, armed confrontations, injury and
even death have all been the foreseeable
consequence of the government's effort to
satisfy the U.S.
Drug trafficking in Latin America as
elsewhere is accompanied by a host of social
ills including corruption and violence. Many
analyses of drug trafficking's effects,
however, and certainly most official statements
failed to assess the extent to which certain
adverse concomitants are inherent in the
business of producing, distributing and
consuming particular commodities such as
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21
cocaine, and those which arise from the fact
that such commercial activities have been made
unlawful.
There is little doubt, for example, that
the criminalization of certain drugs has had an
enormous impact on their price. The staggering
revenues of the drug business are then used to
corrupt public officials and law enforcement
agents. This would all be dramatically
different, we believe, in a different legal
regime for drugs.
Similarly, because the business is
criminalized, it carries certain risks which
participants try to reduce through a series of
protective mechanisms which include violence
and corruption.
It is reasonable to wonder that violence,
the loss of life, the death and the
destruction, would diminish under a different
legal regime.
Human Rights Watch does not take a
position on the appropriate legal system to
respond to the public health issues posed by
drugs. We think it critical, however, for U.S.
policy makers and the public and for this
committee to include in their deliberations
about drug policy an awareness of the human
rights consequences of the current
criminalization and prohibitionist approach.
As an organization whose mission is
promoting increased respect for human rights,
we think it legitimate and even imperative to
explore drug control mechanisms that might
reduce the harm to human rights that
accompanies the current system while protecting
ourselves and our children from those harms
that may, in fact, flow from drugs.
I'd be glad to answer any questions you
may have.
MR. DAVIS: Thank you very much,
Miss Fellner, for illuminating some of the
consequences of drug prohibition that the
committee has not previously considered in
great detail.
Are there any questions from the
committee? Mr. Affler.
MR. AFFLER: You briefly touched on the
specific sort of threat or sanction that I
believe was brought against Bolivia, a cut-off
of multilateral loans.
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22
Is there a systematic sort of policy of
particular sanctions that are threatened
against various countries if they don't engage
in these counter-drug activities or --
MS. FELLNER: There is a process known as
certification, and I don't know if somebody's
here from Drug Strategies. Mathea Falco was
going to be, and there's an article actually in
Foreign Affairs which she wrote on this. Under
law the State Department has to certify to
Congress whether drug-producing or trafficking
countries are cooperating satisfactorily with
the United States in curtailing drugs.
If the United States -- if they are not
certified as cooperating satisfactorily, then
the United States by law is obliged to cut off
all bilateral aid, except drug trafficking aid,
and it is obliged to vote against them in
multilateral foras such as the World Bank or
Inter American Development Bank. For countries
such as Bolivia, which are dependent
particularly on multilateral loans, this would
be catastrophic.
As a high ranking Bolivian official told
me, the U.S. ultimatum -- well, in Bolivia they
got a certification. It was called a national
interest certification, by which the United
States can say well, they're not cooperating,
but it would be against our national interest
to nonetheless cut the aid off. The day after
that decision was announced publicly the United
States sent a secret letter to the Bolivian
Government saying notwithstanding our national
interest certification, we are telling you that
if by June you do not comply with these three
objectives that we've set out, we will treat
you as though you had been decertified; so it
was in effect the threat of decertification.
Oh, I started to say one of the highest
ranking officials in Bolivia said look, we are
between a rock and a hard place. We can either
commit economic suicide by foregoing the loans,
which is trying to eradicate drugs, which for
reasons I haven't talked about yet, the
cultivation of coca is an enormously
politically difficult subject to deal with in
Bolivia.
MR. FROLICH: Could you speak a little bit
about the economic effects of the drug trade,
separate from the political pressures that the
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23
United States is putting on those countries?
MS. FELLNER: I'm afraid I don't
understand your question. The economic
effect -- the role drug trafficking has in the
economies of these countries? Is that what
you're asking?
MR. FROLICH: What is the effect, separate
from the United States' political arm twisting,
that is, the distortions that are occurring in
these countries because of the drug trafficking
itself?
MS. FELLNER: The economic distortions?
MR. FROLICH: The political --
MS. FELLNER: The political distortions.
I don't feel qualified to talk about the
economic distortions. I only sort of have a
general sense. The political distortions are
great, particularly in Columbia, less so for
various -- Columbia and Mexico, and I think
increasingly in Brazil and Venezuela.
Those distortions -- primarily, again,
it's interesting to think about them, if it
were not criminalized. What you have is a
business, the production of these commodities
which is enormously lucrative. In this
country, for example, when you want to
influence public policy, you spend a lot of
money to influence Congress. It's not called
bribery or corruption. It's called lobbying.
The drug traffickers also lobby. They lobby
through illegal bribes, and unquestionably
those monies have an effect. The additional
risk, however, is when their bribes or their
lobbying does not succeed. Violence is the
next step.
In Columbia you see a history of the
government trying to negotiate, and sort of
alternating with negotiations with the drug
traffickers; then a sort of resumption of war.
When the blood shed on both sides got
sufficiently high, they'd go back to secret
negotiations. When those broke down, mostly
because they would become public, then they'd
go back to battling.
Other than the sort of lobby/bribery
concerns, drug traffickers really haven't, I
think it's fair to say, played that much of a
politically distorting role except as provoking
U.S. or other international pressures on the
countries with one major exception, which is
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unique to Columbia: Which is that the drug
traffickers are very politically conservative,
and they have aligned themselves with right
wing paramilitary forces. They have right wing
paramilitary forces in Columbia which have
cooperated with the police and the armed forces
in horrendous human rights violations. They
have underwritten, in other words, a lot of the
killings, including massacres, which have
stained Columbia with thousands of deaths over
the last few years. That doesn't arise so much
from the drug trafficking nature of it as that
the traffickers are a source of great new
wealth who are traditionally violent, and
Columbia is a historically very violent country
and there's been this constellation of forces.
MR. DAVIS: Thank you. Any other
questions from the panel?
MR. KNAPP: Just very briefly, if you
could comment on the amount of, I guess, what
United States would call drug addiction in
South America? In which countries is that an
issue that's being dealt with and how is it
being dealt with?
MS. FELLNER: Drug addiction has
historically not been a major problem in any of
the drug producing or drug transiting
countries, although there have been drugs.
Coca chewing, of course, has been a practice in
Bolivia for time immemorial. Most people do
not consider coca chewing a drug addiction. So
let's leave that aside.
In many of the countries the primary
substance abuse would either be alcohol or
glue. There is an increasing problem with glue
sniffing, particularly among street children.
It is difficult to get good data on how much
consumption of cocaine or cocaine derivatives
or Marijuana is increasing in part because it
is being so politically manipulated. It would
seem that it is increasing somewhat.
Cocaine use is increasing in Brazil, for
example. The reason, when I say it's
politically manipulated, the United States, I
believe, made a decision that one of the ways
in which they could get more cooperation from
producing and transit countries in the war on
drugs was to say -- well, those countries have
traditionally said look, drugs are your
problem. You've got the demand. You take care
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25
of the demand, and the supply will dry up; that
it's a demand driven business in the best
capitalist system. The United States is trying
to say, no, no, no; it's all of our problem,
and you have a consumption problem too. So
they are funding efforts for drug education and
drug prevention and trying to stimulate a lot
of concern in these countries.
When I was in Bolivia in July I was struck
by all the TV ads that was the equivalent of
"do you know where your children are tonight."
This is in a country where the poverty rates
are astonishing, but as best one can see, it is
nowhere near the problem it is in this country.
The demand issue, most of the drugs
produced there are shipped either to the United
States or to Europe.
MR. DAVIS: Thank you. I think we have
time for a couple of questions from the
audience.
If you'd take the microphone please.
UNIDENTIFIED SPEAKER: I wonder if you
could apply your knowledge of international
human rights law and standards to the U.S.
domestic war on drugs. There was a report
issued earlier this year by the American
Association of Advancement of Science that was
given to the U.N. reviewing U.S. violations of
human rights law. In the criminal law section
they talked about mandatory sentencing,
forfeiture of property, the presumption against
bail, the racially disproportionate impact of
the drug laws, the lack of treatment
availability in prisons and the erosion of
civil liberties, particularly the Fourth
Amendment as examples of U.S. violation of
human rights law.
In the European context there was a report
issued a couple of years ago which looked at it
more from a health and safety perspective:
Lack of treatment, lack of health services,
denial of medicine to the seriously ill, and
finally the example that hasn't been talked
about in any of these reports is the denial of
the syringes, and we have evidence that that
will prevent the spread of H.I.V., AIDS,
dramatic declines in the spread of that
disease. We still prohibit syringes. Do these
raise human rights issues in the United States?
MS. FELLNER: All of the issues that you
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26
have mentioned raise tremendous issues,
constitutional issues. They raise moral and
ethical issues. The problem is that
international human rights in many instances,
and in particular, dealing with the kinds of
issues you've raised, is not as developed as we
might like to see applied to these problems,
and let me give you -- and Human Rights Watch,
as an organization, derives its legitimacy and
clout from taking consensus concerns and
applying them to situations and holding
governments up to public stigmatization by
saying, for example, nobody condones torture;
you deny that you torture, yet you are.
In the areas that you have mentioned there
is much less consensus as to the relationship
of international human rights treaties and
standards to these. And it's tough, and we are
trying to figure out ways that we can apply it
in ways that don't cheapen international
standards by applying them beyond where they,
in fact, are.
Take syringes. There is various
international standards, not only the right to
life, but the right to health. There does not
seem to be yet a clear sense as to how those
rights could be applied to say that one has the
right to those standards -- to the syringes;
that it makes good policy sense. I personally
believe there's little doubt.
Take mandatory sentencing. There is
little international standards which say that a
country cannot determine what prison regimes or
systems work best for its national objectives
subject to due process, and due process does
not traditionally mean that you can't limit in
certain ways the discretion of judges in
sentencing. So you're stuck there. You're
stuck on a cruel and unusual punishment. I
could believe say that the -- the death penalty
we've already conked out, which we opposed,
which is also in the U.S. law, but to say that
somebody could be sentenced to 15 or 20 years
for possession of a small amount of cocaine, I
think personally is cruel and unusual, among
anything else, but there's nothing really in
international law that would support that,
unfortunately.
Search and seizure, the U.S. Fourth
Amendment, before it was severely cut back by
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decisions that mostly followed efforts to
enforce drug laws in this country, was always
far more advanced in international law.
International law really hasn't addressed
search and seizure very much, and fruit of the
poisonous tree and all of that just doesn't
have a place yet in international standards.
Lack of treatment again, racial impact.
There is clearly adverse -- and this is
something which we have actually looked into
somewhat. Human Rights Watch submitted a
letter to the United States Government asking
it in its submission to the Committee on the
Elimination of Racial Discrimination to whom we
have to submit a report now that the United
States has ratified the Convention on the
elimination of all forms of racial
discrimination otherwise known as CERD. We
have urged the government to look at the
question of the racial disparate impacts of the
enforcement of drug laws.
The problem is going to be, for example,
in issues like the difference between powder
cocaine and crack cocaine and enforcement, is
that the government can come up with plausible,
rational sounding reasons to justify the
disparate impact, which I doubt any sort of
international fora would overturn.
That it's bad policy, again, I think the
weight of the argument is that it's very bad
policy. It's difficult to say that it is
unjustified racial discrimination as those
norms are construed. It's even hard under
domestic United States law.
As you may know, every single case which
is brought under U.S. race discrimination laws
that tried to challenge those have failed.
MR. DAVIS: Thank you. I think we have
time for one more question.
MS. FELLNER: Let me just say I am
somewhat frustrated as I try and do this with
the problem of getting a handle on the problem
of how we can apply international law to some
of the problems that we see in this country and
we are continuing to look into it.
For example, we're looking into the
relationship between police -- corruption
follows drug trafficking laws. I mean one goes
with the other. Corruption also, as the
Mullen Commission Report in New York City
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28
pointed out, seems to be very tightly linked to
brutality. Police brutality is a human rights
problem.
UNIDENTIFIED SPEAKER: I just wanted to
ask you about our culture and cultural
attitudes towards drug and drug use and the
Latin American countries, for instance. Are we
also trying to sort of impose a whole way of
looking at drugs on them which is inconsistent
with their own culture, which I imagine would
make enforcement and everything else more
difficult? I mean I don't know.
MS. FELLNER: I don't feel comfortable
answering that. I just don't know.
With the exception of Bolivia, and I'll
give you one example referring to the coca
chewing.
Coca leaves, which contain the alkaloids
from which cocaine is derived, which are in
cocaine, coca leaves have been chewed for a
long time, thousands of years some believe,
certainly increasing dramatically after the
Spanish Conquest and the deliberate use of
feeding of workers with coca leaves so they
could survive the brutal conditions to which
they were subjected.
The U.S. Government has been pushing very
hard to have coca chewing itself stigmatized
and, in fact, in the U.N. Convention of 1961
coca itself is listed as one of the drugs which
should be proscribed and which governments
should commit themselves to opposing.
So in the area of coca leaf and whether or
not there are beneficial uses of coca, as many
believe, the United States is clearly pushing
Andean countries, mostly Bolivia, and to some
extent Peru, to not only not pursue the
possibility of those uses, but to try and start
treating coca chewing as drug addiction.
But as to the broader questions you asked,
I really couldn't say.
MR. DAVIS: Thank you. I'm afraid we're
going to have to cut off questioning.
MS. FELLNER: Thank you very much.
MR. DAVIS: Thank you, Miss Fellner. It's
been very helpful to the committee.
Our next speaker will be Kevin Zeese.
Mr. Zeese is an attorney and advocate, and the
President of Common Sense For Drug Policy,
which is a non-profit educational organization
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29
that's working to expand the discussions of
alternatives to current drug policy. Mr. Zeese
has represented many individuals and advocated
for reform of United States drug policy for
more than ten years.
MR. ZEESE: Thank you. Last Thursday the
Sentencing Project announced in a report that
one in three African American men in their 20s
was either incarcerated or in some other way
under the supervision of the criminal justice
system. Two days before that the Wall Street
Journal reported on numerous instances of
apparent jury nullification because black
jurors were refraining from adding to the
already large numbers of African Americans
behind bars.
A decade of enforcement of our inherently
cruel and unthinking drug policy is bringing
about the rending of the bonds that hold our
society together. The criminal law is losing
respect, and it's not just the criminal law.
Last week in Santa Clara County, California the
Chief Judge announced they won't have time on
their civil case docket until December of '96
to hear a civil case. So both our Civil Court
system and our Criminal Court system is losing
its ability to function.
Our drug laws fail to recognize that both
legal and illegal drugs can be measured along a
continuum of addictiveness and intoxication.
Instead we pursue a mindless permissiveness
regarding highly addictive drugs like tobacco
and very intoxicating legal drugs like alcohol,
hard alcohol, and cruelly persecute users of
far less addictive drugs like Marijuana.
The inherent hypocrisy of our drug laws
combined with the extreme enforcement of the
war on drugs is developing into a loss of
respect for our system of laws and jury
nullification is just one example of that.
No one is pleased with the way current
drug policy is working. After spending over
$100 billion in the last 12 years we have very
little to show for our efforts.
Adolescent drug use is increasing for the
last three years. AIDS among people who use
drugs is increasing, now accounting for 44% of
new AIDS cases. More people than ever are
incarcerated and the largest building binge of
prisons in our history can't keep up with the
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30
demand. Violent crime continues at
unacceptably high rates. Corruption of public
officials from police to judges is too common.
Organized crimes, gangs have flourished even
after the leaders are arrested. Drugs remain
easily available throughout the United States.
Over $100 billion didn't buy a better and
safer society. No one is happy with the way
things are.
As a parent, I'm concerned that my
children are introduced to drugs at school.
People who use drugs, they fear arrest. They
fear catching a disease. People living in
cities are increasingly afraid to use the
cities. They fear of becoming victims of
crime. Only criminals proffer from our current
system.
If drug policy was working, there would be
no need for change, no need for these hearings
but, in fact, drug policy is broken. It needs
to be fixed.
What I want to try to do with my comments
today is build on where you left off with your
excellent report that you sent to all of us and
try to talk about alternatives that we can
start to consider for the 21st century.
When I'm talking about drug policy, I'm
not only talking about illegal drugs such as
Marijuana, cocaine and heroin, but legal ones
as well. Alcohol and tobacco are needed to be
considered when we re-think drug policy today.
Neither total prohibition of the former or
virtual unregulated legalization of the latter
has worked.
At the turn of the century we began to
develop a regulatory approach to medical drugs.
As laws and regulations have evolved, we have
put in place purity controls, potency controls,
labeling requirements, restrictions on
advertising, restrictions on availability to
prescription, access with over-the-counter
availability. In order to get a medical drug
to the market there are now strict requirements
for testing for safety and effectiveness.
As a result of these tests we've gotten
much more control over medical drugs. We have
not applied any regulatory structure at all to
non-medical use of drugs. I'm not saying that
the identical standards that we use for medical
drugs are appropriate for non-medical drugs,
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31
but there are things that we can develop that
would be appropriate, regulatory strategies to
regulate non-medical use of drugs.
My purpose is not to put forth the
regulatory model; rather my goal is to present
some new ideas to encourage others to begin
thinking about new ways to control non-medical
use of drugs. My hope is to begin to bridge
the gap between the polar extremes of
unregulated legalization and total prohibition.
The goal of the drug policy would be
three-fold. First, minimize the harm to the
individual and to society from drug use.
Second, minimize the harm to society from the
marketing of drugs, and third, allow
individuals maximum individual choice in drug
consumption.
Let me address each of these briefly.
First, minimizing the harm to the individual
and society from drug use. When it comes to
drug use, there are a variety of ways the
individual and society can be harmed.
Let me review some of the major areas of
concern to give you an idea how a regulatory
approach could work to minimize harm.
The individual can be harmed by using a
drug of unknown potency or unknown purity. The
individual can be harmed by the spread of
disease, H.I.V., through shared needles or
other injecting equipment. The individual can
also be harmed by the addictive nature of a
drug. Finally, the individual can be harmed by
the drug that intoxicates so quickly or so
strongly that he or she loses control over the
effects of the drug.
Each of these individual harms can also
have an indirect or direct negative effect on
society. These harms can all be minimized by
regulatory structure that addresses the harms
individually rather than a blanket prohibition
or a blanket legalization approach.
Regarding potency and purity, these are
issues that the regulatory structure is
particularly good at addressing. We've seen
this with medical drugs as well with, to a
lesser extent, alcohol. Regarding the
addictive nature of a drug, we've seen the
capability of identifying the substance in
various drugs which increases the chances of
addiction. For example with tobacco products,
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32
we know nicotine is the addicting substance.
If we address the issue of addiction
specifically, we can design policies that
reduce addiction.
With regard to tobacco products, for
example, with lower levels of nicotine being
made more available we can perhaps reduce
addiction rates with tobacco. We can make
higher nicotine and tobacco products more
restricted or tax them more heavily to make
their use more discouraged.
Perhaps when the Federal Government moves
forward on its plans to begin to treat tobacco
products as drugs, we'll begin to develop a
regulatory structure that could be applied to
other non-medical drugs as well. There is no
reason why these same approaches cannot be
applied to illegal drugs. Regulatory controls
can vary the levels of potency and addicting
ingredients. Policy can also be made to allow
raw forms of drugs to be more available; for
example, coca leaves instead of cocaine. Just
as an addiction can be regulated, so can any
intoxicating effect be regulated: By varying
the degree of active ingredient. I'm not
saying that addiction is solely based on the
ingredients in the drug. It's a much more
complicated phenomenon. I'd say the drug is
one part of a three-part grouping of drugs set
in a setting: The personality set of the
individual using the drug, the setting the drug
is used in, and one of the things we have to
deal with as well as we move toward regulation
is developing a culture whereby we understand
the use of drugs. We're doing that more and
more with tobacco. For example, all of us in
this room could be sitting here drunk today
legally right now, but none of us are. And we
don't do that because of law; we do that
because of culture, and that also has to be
built into the process of learning how to
handle these drugs in our society.
Unfortunately, prohibition prevents the
development of that culture. We're not allowed
to talk about how to use certain illegal drugs
safely. That's a taboo topic. We would need
to be able to talk about that openly so we can
develop those kinds of cultures.
With regard to the less dangerous forms of
drugs, the low addiction, low intoxication,
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33
lower health risks, they can be made available
even more easily while the more dangerous drugs
can be more expensive, more difficult to
acquire. This can range from over-the-counter
sales to adults, restrictive access to even
more restrictive access through licensing
schemes or higher tax rates.
Prohibition may still be appropriate for
some substances. I'm not saying we should
legalize blanketly. Some substances we may
basically not be able to deal with in society
and we may find that by legalizing or
regulating the lesser forms of drugs there is
no need to go any further and regulate the more
dangerous forms of drugs.
Rather than thinking of drugs in black and
white terms, all forms of currently legal drugs
are good and all forms of currently illegal
drugs are bad, we should begin to look at each
drug by its effects on the individual and on
the society. Not only should we look at the
drug, but also how the drug is being used.
For example, the greatest health threat,
as I mentioned earlier, is the spread of H.I.V.
Indeed, this is a health emergency. We cannot
wait. We have to deal with this immediately.
Drug use accounts for over 40 percent of new
AIDS cases, not because of the drugs, but
because of the laws surrounding how people can
use the drugs.
The prohibition of equipment, particularly
sterile syringes, is causing the spread of
H.I.V. There were more than twice as many new
AIDS cases among drug users in 1994 compared to
deaths from the pharmacological effects of the
drug, and that includes suicide related deaths
and still twice as many more H.I.V. cases --
new AIDS cases.
Among African Americans that ratio is
seven to one. Seven times as many African
Americans developed AIDS in the last year
compared to those who died from the
pharmacological effects of the drug. We need
to act immediately to deal with this issue.
The current policy, unfortunately, maximizes
harm rather than minimizes harm by denying
people the tools they need to avoid H.I.V.
People who use drugs are not able to make
choices. If they were permitted to, they would
make choices that made their life healthier.
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34
Government should not stand in the way of
people making those choices, as is being done
with syringe exchange.
Let me talk now about the harm from the
marketing of drugs. The greatest harm from the
marketing of drugs comes from their illegality.
This results in vast, untaxed profits.
An illegal weed, Marijuana, which can be
grown readily and inexpensively throughout the
country, indoors and outdoors, sells for
hundreds of dollars an ounce. Illegal cocaine
is many times more costly than pharmaceutical
cocaine. The black market prices result in
huge underground profits which fuel the
development of gangs and organized criminal
enterprises at home and abroad, criminal
markets which control their markets through
violence and intimidation. Even though we have
succeeded in arresting many leaders of cartels,
they continue to flourish with new leadership
waiting in the wings.
By allowing the less dangerous forms of
drugs to be made available in a regulated and
controlled manner, by allowing more dangerous
drugs to be made available through more
restrictive access, for example, prescriptions
or licensing schemes, and by prohibiting only
the most dangerous forms of drugs, we undercut
the potential profits from illegal drug sales.
Just as the violence associated with the
alcohol market abated when alcohol prohibition
was repealed in 1933; in fact, it was followed
by the most dramatic drop in homicides in U.S.
history, the violence associated with the
illegal drug trade will dissipate when the
regulatory moral is put in place.
We do not have significant problems with
violence and crime associated with alcohol and
tobacco. There are other issues to be dealt
with there, and there may be good reasons to
enact some additional regulations of these
substances.
The most highly dangerous forms of tobacco
may be too easily available. The current
policy has allowed Madison Avenue advertising
techniques to glamorize these substances.
When we move toward regulatory approach,
all drugs must be addressed, currently legal as
well as illegal.
Finally, we talk about allowing maximum
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35
choice in drug consumption. American Liberty
requires us to allow maximum individual choice
in all areas of our life with minimum
government intrusion. This does not mean
unlimited choice, but it does mean government
should intrude as little as possible.
One area where choice can be limited is
based on age. We don't treat minors the same
as we treat adults in many areas: Voting,
driving automobiles, owning a gun. This should
be true for drug use as well. Rapidly growing
bodies, quickly developing minds, tremendous
social pressures of the teenage years,
immaturity of adolescents are all good reasons
to limit the choice for minors when it comes to
drugs.
For adults we can allow choice by
regulating various forms of drugs differently,
depending on their potential for addiction,
speed and strength of intoxication and other
health effects. This limits government
intrusion into the real harms that affect
society. The more dangerous the form of the
drug, the more difficult and expensive it
should be to acquire. With relatively few of
the most potent and fast acting drugs being
prohibited, people would begin to be given more
freedom of choice and society's interests would
be protected.
In conclusion, the goal of drug policy
should be a safer and healthier society which
minimizes the harms caused by drug use but
still allows the maximum choice to individuals.
Society has a legitimate interest in
controlling drugs. The current approach to
illegal drugs, prohibition, gives a false sense
of control. In reality, illegal drugs are out
of control. They are controlled by criminals
and gangs, not by laws, not by consumers and
not by markets. My hope is that we will begin
to approach drug use with all the tools we have
available to regulate substances. We no longer
need to limit our choices to outright
legalization or total prohibition. That's like
the 17th century, not the 21st century. There
are a wide range of choices available. We need
to consider them all. I hope these hearings
are a step toward developing a sensible, humane
and just drug policy for the 21st century,
policies which will protect our nation's
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36
health, empty our jails of people ensnared by
decades of bad public policy, and help build
respect among all segments of our population
for law enforcement and judicial systems.
Thank you.
MR. DAVIS: Thank you, Mr. Zeese. I'd
like to open up the session for questions. Any
questions from the committee? Mr. Affler.
MR. AFFLER: In terms of your view that
certain drugs should be I guess I'll use the
term open to regulation rather than
prohibition, would you envision the people
involved in the distribution now, including
some of the gangs that are violent, would you
envision the idea of trying to bring them into
a legal market on the theory that that would
change their behavior, or would you envision
having these drugs marketed say through the
government or through some sort of third
private entity?
MR. ZEESE: My preference is to give
maximum flexibility to state and local
jurisdictions. Throughout the history of the
United States, one of the things that makes a
policy successful is we allow experimentation
at the lower levels of government so we can see
what works and what doesn't work.
So I think, just as we have with alcohol,
after alcohol prohibition some states remained
dry. So I think first Federal involvement, to
some degree, and allow states some maximum
involvement as far as those kinds of things
we're talking about: Are they going to be
state regulated stores; are they going to be
private enterprises; how are you going to deal
with people who are currently in the business;
maybe it depends on their violent behavior or
whatever other characteristics of their life
are relevant. But I would focus on maximum
flexibility to allow experimentation, and then
tie that along with research to see what works
best.
MR. FROLICH: That seems in some ways
contradictory to your third point, which was
giving the individual the choices as opposed to
the state government. After all, I mean that's
still the government. Although you were, I
think, the first witness to be explicit about
feeling that an individual had a right to
choose whether or not to do drugs, and if so,
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37
which drugs to choose; that's sort of an
unstated assumption from a lot of the
witnesses.
But could you speak a little bit about how
giving the states flexibility to regulate would
impact on this idea that individuals have some
kind of choice, and also what's the basis of
that idea? Why should we believe that
individuals have this choice to take or not
take dangerous substances?
MR. ZEESE: First you have to recognize
people are making that choice today and the law
has not stopped that choice from being made,
and so in some part that question is a
practical question in that you want to give
people choice in the safest possible way to
reduce the harm from the marketing and the use
of the drug. So that's part of the answer.
But the other answer really is if you look at
the basis of the founding of this country, on
the federal constitution level, regarding
individuals, maximum individual choice with
limited government power. Government powers
were specifically given, specifically
enunciated, and what was not given was left to
the individual or to the states.
When you get to the states, you're talking
about a different issue. There you have state
constitutions that vary, but on the national
level, it was maximum individual choice and
minimum government involvement. So I think
that's the most consistent choice with our
constitutional history. Unfortunately, I think
as we've developed as a society over the last
200 plus years, we've come to accept big
government as controlling many of our choices,
and we don't have -- that philosophy has kind
of been lost. Particularly in the drug field,
you could almost call the drug warriors the
counterrevolutionaries to the Thomas Jefferson
and James Madison philosophy of government.
Because they really came across with the ideas
of much bigger government: government intruding
in your life; searches without search warrants;
now you can test people's urine, for example;
that's a very invasive search. According to
the recent Supreme Court decisions, if the
government has a special need to conduct the
search, there is no need for a search warrant
or even individualized suspicion.
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So we've gone through a kind of
counterrevolution in the last 15 years
particularly, but even over the last half of
this century, where big government has become
the key, where I think that's inconsistent with
what this country really stands for and
inconsistent with what makes this country a
great experiment in human history.
MR. FROLICH: You're not making an
argument that there's a constitutional right to
do that?
MR. ZEESE: No, not specifically on drugs,
but just generally that we have a limited
government. There is nothing in the
constitution that says that government has the
right to control what you put into your body.
So it's not necessarily just drugs. It's just
saying we have individuals with maximum choice
in this society and limited government.
MR. FROLICH: Well, the constitution
actually makes a distinction between Federal
Government and State Government.
MR. ZEESE: That's right. I'm talking
Federal Government. I think the Federal
Government does have, under the health and
safety clause of the constitution, some ability
to control choice, but I think that that choice
needs to be limited. And the way we limit it,
by regulating purity and potency, I think that
would be the appropriate limit for that kind of
activity.
MR. DAVIS: Thank you.
Any questions from anyone else on the
panel?
MR. KNAPP: Several speakers have referred
to public opinion polls as one of the bases for
distinguishing what happened with the end of
the prohibition in the '30s with the current
drug situation; the point being that the
population as a whole was in favor of drinking
and therefore prohibition was doomed to fail,
and the public opinion polls today show that,
depending on who you speak to, sometimes the
world overwhelming, but certainly the point
they're making, is that a majority of Americans
are against drug use and therefore there is a
specific national mood distinction, so to
speak, between prohibition and the current
debate that's going on now.
I'd just ask for you to comment on, first
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39
of all, if you've looked into it, the validity
of the polls, the types of questions that are
being propounded, which of course is relevant
to the answers that are given, and whether you
have any better information as to whether there
is a public mood one way or the other on the
issue.
MR. ZEESE: I've been involved in doing a
number of polls nationally, and I've tried to
explore that question, and I've asked the
question about decriminalization or
legalization in various ways, and generally you
find about a third of the population supports
some kind of reform towards
legalization/decriminalization. So it's still
a significant majority that favors the drug
war/prohibition approach.
I think one of the things to be careful of
in our society is a tyranny of the majority.
Just because the majority says that's their
opinion does not mean they have the right to
persecute people who use a different substance.
Just because people who use alcohol say that
it's okay for them to do that, but we're going
to persecute the Marijuana user doesn't make it
right. So public opinion polls should not
necessarily be the determining factor.
Of course, we are a democracy, so we have
to educate the public more. But I think in
particular in the last 15 years there has not
been really significant debate on this issue.
There's been some discussion of legalization,
but it's been minimal. There's been some
people who have come out in favor of reform,
but it's been stifled, and I think it's really
unfair to judge it at this stage without a real
debate happening, and I appreciate the fact
that you are holding these hearings to try to
open debate because I think that's what's
needed. I think once people start to
understand these drugs better, we'll develop
better policies.
MR. DAVIS: Thank you. I think we have
time for one or two questions from the floor.
Yes. Would you grab a microphone, please?
UNIDENTIFIED SPEAKER: Are you aware that
the U.S. Controlled Substances Act allows
states and localities to license practitioners
to dispense controlled substances and puts no
limit on the type of practice; that is it does
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not limit it to medical practice and leaves up
to the locality the definition of the practice
involved?
MR. ZEESE: I think a lot of people
disagree with that interpretation. I imagine
if the local practitioner began to prescribe
cocaine, heroin, and Marijuana for more than
the -- even for some medical purposes, you'd
start to see the Federal Government
interpreting the law differently than you do.
UNIDENTIFIED SPEAKER: That's not what I
mean. What I mean is not interpretation of
medical practice, but that the Controlled
Substances Act says a practitioner is a: And
they list various professional types: Or such
other person as licensed such as under the
Gallagher Bill, for instance, by the state or
locality to dispense controlled substances and
apparently gives that state or locality the
right to define that type of practice. It
doesn't limit it to medical practice.
MR. ZEESE: I'd be interested in seeing
how a test like that would work. I know when
Alaska had its Marijuana decriminalization law
that allowed the right to grow, the Federal
Government still was attempting to enforce
cultivation laws. So that was a state law that
allowed one thing and federal law allowed
another, and the Federal Government still
enforced their laws.
MR. DAVIS: Thank you, Mr. Zeese. Thank
you very much. I'd like to take a ten-minute
break right now so that our court reporter can
rest her fingers, and see you all back, I hope,
at 3:17 or so.
(Whereupon, there was a brief
recess was taken.)
MR. DAVIS: Our next speaker is
Mr. Jeffrey Merrill, the Vice-President and
Director of the Division of Policy Research and
Analysis of the Center on Addiction and
Substance Abuse. He's also a Visiting
Professor at the Columbia University School of
Public Health. Mr. Merrill has had a long
career advising policy makers on substance
abuse and other public health issues,
particularly from his vantage point at Robert
Wood Johnson Foundation and other nonprofit
organizations.
Thank you for being here, Mr. Merrill.
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41
MR. MERRILL: Thank you. After having
listened to the previous couple of speakers, I
feel a little bit like Thomas Paine swimming
upstream, but I'm very happy that you invited
me to talk. Let me just try to be very brief
in my comments and just raise a few issues that
I think are relevant to the deliberations.
One of these issues is that we are talking
about drugs and the legalization or other
actions or regulation or different regulations
dealing with drugs, and I think that sometimes
we attribute a lot of the evils in our society
to drugs and sometimes ignore other problems
that may be equally as important and may
actually already have been deregulated or
legalized in some way, and I speak specifically
about alcohol, and I just wanted to mention a
couple of things related to that.
I raise this not because I'm going to
argue that we ought to go back to prohibition,
far from it, but just to point out that it may
be a little simplistic or naive to assume that
the legalization of drugs or some drugs would
necessarily stop a series of problems in
society per se, and I think we all know that
and I think at times we don't point this out
enough, that problems like birth defects, the
adverse outcomes of pregnancy are, in fact,
much more attributable to the use of alcohol
than the use of drugs among pregnant women.
The question of Welfare, the debate that's
going on right now in Washington over Welfare
reform, there's this picture of a group of drug
abusing women when, in fact, CASA's own
research would indicate that alcohol appears to
be a much more serious problem among this
population than are drugs. And in the whole
area of crime, just in preparation for this, I
just looked up a couple of statistics relating
to people who are under the influence of
alcohol or drugs at the time of committing a
crime, and this is based upon a survey of
inmates in state correctional facilities
nationwide.
About 21 percent of all violent crimes are
committed under the influence of alcohol while
only about 12 percent of all violent crimes are
committed under the influence of drugs. As a
causal factor a prisoner is six times more
likely to have had a parent or guardian who
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abused alcohol than a parent or guardian who
abused drugs. Again, this is not arguing for
any radical action with respect to alcohol;
rather, it's simply saying that as we start to
attribute a great deal of the problems of crime
let's say to the illegal nature of drugs, we
ought to be aware that just by making something
legal is not necessarily going to correct that
problem. I was interested and encouraged, by
the way, and I want to come back to this later,
that Mr. Zeese also pointed out some of the
problems related to alcohol.
Let me just focus one more second on the
issue of crime and the assumption that crime is
related to the illegality of drugs.
I think we all probably know the
statistics that about only 20 percent of crime
is actually related to the possession or
trafficking in drugs, and by the way, just to
make them legal would not necessarily eliminate
that 20 percent.
Probably many of you are aware of the
Swedish experience where actually after in this
case medicalizing heroin, actually the crime
rate went up in the country and it had a lot to
do with the distribution of these drugs which
were now available to certain people, and other
people to whom they were not available to.
You know, clearly some might argue, and
Mr. Zeese argued this, that the price which is
so high leads to crime. I'm not quite sure
that that's an empirical fact. I think it's
clearly a legitimate theory, but what it does
create in my mind is a dilemma between the
issue of if you legalize a given substance, do
you make it affordable? Because if you lower
the price considerably, then the potential for
abuse, and I think most people would agree with
this, would go up, and the potential for
children to get their hands on a substance
that's lower cost would increase, or do you
make it legal and keep the price high because
in that case you don't necessarily address the
issues of crime and the need to commit crimes
to afford these substances.
Probably the most critical issue in the
debate over legalization to me and really at
the heart of this is what happens if you
legalize drugs; does prevalence go up? Does
prevalence go down? My opinion personally is
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43
that certainly prevalence of use would not go
down, and, in fact, I think it would go up, but
that's my opinion and, again, there's no
empirical basis one way or the other to say
that it would not go up and it would not go up
considerably.
And the question is are we ready to take
that chance because I think we would all
consider that to be a serious possibility.
The problem is and this is something that
I was thinking about on the way over here.
It's sort of like letting -- I'm not sure I
know the correct metaphor for letting the tiger
out of the bag. Once you have legalized the
substance, brought it into the mainstream
economy, once you have made business not
dependent, but certainly benefiting from that,
it would be very hard to put I guess the
toothpaste back in the tube I guess is the
correct one. It would be very hard to put that
toothpaste back in the tube. Politically,
economically, it would become difficult. So
that, yes, I may be wrong, but if I'm right,
it's going to be hard to reverse that.
CASA did a study of college students
looking at substance abuse and when we started
the study we were sure that the problem we
would find is an increase in the use of
Marijuana and hallucinogens among college
students and that that would be what college
administrators and others would tell us is the
problem. What we found out from that study
from everybody we spoke to, and I mean
everybody, said yeah, well, drugs is a little
bit of a problem on our campus, but alcohol is
the major concern we have.
Now, alcohol is actually illegal for most
college students because most college students
are under the age of 21, and by the way,
younger college students tend to abuse alcohol
more than older college students. Does that
argue that we should then legalize alcohol or
make alcohol legal down to the age of 18? I
don't think that's a solution, and by the way,
in talking to people, that's not what we found
out.
Really, what this indicated to us was that
even if you limit the availability of a
substance legally to groups above a certain
age, the sheer availability in society of that
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44
substance gets much greater, and also there's a
culture that surrounds that, and that the
drinking among college students that were
younger than the age of 21 was very much a
function of that availability and, again, I can
say that with some empirical evidence in that
case.
I don't think any of us in this room would
argue that we should legalize drugs for
children, but let's just take that example and
I'd be interested in discussing this further.
Let's just take the example I just gave of
college students and extend that to Marijuana.
Let's assume we make Marijuana available, as
Mr. Zeese said, based upon what states want to
do and based upon what individuals feel is in
their best interests, but certainly not make it
legal for people under the age of 21 or 18, my
feeling is, and this is a debatable point, but
judging from the experience with alcohol in
colleges that what you would see is a marked
increase in the use of Marijuana among young
kids.
And I'd just like to conclude with a
couple of little facts pertaining to that
because I think of all these issues, that's the
one that really concerns me the most.
CASA did a study about a year ago looking
at the relationship of use of various
substances among children and their later use
of other drugs, and we found a clear
relationship between kids who smoked and drank
earlier, but I'm not going to focus on that.
What I'm going to focus on is the use of
Marijuana among children. We found that a
child who had used Marijuana in general was
85 -- used Marijuana regularly was 85 times
more likely to go on to use cocaine than
someone who had never tried a drug.
Now, some of the people who have
criticized the study have, I think,
misinterpreted that. We're not looking at
people who used cocaine and saying most of them
used Marijuana. We're looking at people who
use Marijuana, whether or not they use cocaine.
This is not like saying so what; everybody who
uses Marijuana drank milk. We are saying if
you look at children who use Marijuana
regularly, if you look at children who use
Marijuana less regularly and so on, what you
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45
find is a direct correlation between going on
to other drugs, and that correlation is
frighteningly it's 85 times more likely for a
regular user. We also found that the younger a
child used Marijuana, the more likely they were
to go on to use other drugs like cocaine. A
child less than 15 who had used Marijuana by
the age of 15 was six times more likely to use
other drugs than a child who was over the age
of 17 before they use Marijuana, and
physiologically there's a lot of evidence that
between 12 and 18 as, your brain grows probably
more significantly than at any other period in
your life, the effect of it, the earlier in
that cycle, the more it might be in terms of
other behavior characteristics. As I said
also, regular Marijuana users were nine times
more likely, not only than people who didn't
use it at all, but that experimented with
Marijuana.
The point is that some people -- I'm not
one of them -- but some people might make
legitimate arguments why Marijuana is not
particularly harmful for adults and maybe we
ought to consider legalizing it. That's true,
but I'm very concerned about the impact of such
a move on the availability of that substance
and therefore what occurs among children.
Let me just conclude by saying that one of
the things that concerns me about this whole
discussion, and I appreciate this hearing
because I think it goes a long way to
addressing this, is that we tend to divide into
camps dichotomously and that in listening to
Mr. Zeese's comments, I found probably more
areas of agreement than conflict in what he
said.
For example, I just want to point out a
couple of things. I think few people just want
to simply decriminalize or legalize all
substances. I don't think there's much
question about that. I think in addition that
all of us would agree that most of these
substances have some serious and very harmful
effects. Most of us would agree that some
forms of harm minimization are important in
terms of other diseases like, for instance,
AIDS, and I think most of us would also agree
that mandatory sentencing and some of the more
punitive things that are done today probably
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46
are not the most appropriate solution to these
problems.
So, therefore, there is an awful lot of
agreement here and I just sort of ask this
group as one of its recommendations really to
try to find issues on which we really do agree.
This is a serious problem, and as I said, I
think there's lot of issues we agree on rather
than try to polarize and dichotomize this issue
by accentuating the differences, and I think in
doing that we would go a long way in solving a
serious problem. Thank you.
MR. DAVIS: Thank you, Mr. Merrill.
Let's start with Mr. Affler.
MR. AFFLER: Do you have any comparative
statistics in terms of now in terms of the age
in which teenagers who start Marijuana use
start as opposed to the age that they start
drinking?
MR. MERRILL: Yes. There is. Again, this
is based on a theory, but empirically this is
true, whether you think this is causation or
not. There is a clear progression usually
starting with cigarettes and alcohol first and
then moving on 18 months later, 18 to 3 years
later to Marijuana for those people who do move
on, and I'm not saying everybody does.
MR. AFFLER: Is it your theory that were
Marijuana decriminalized for adults that this
progression would be different, that people
would start off with Marijuana?
MR. MERRILL: No, I'm not saying people
would start off with Marijuana necessarily.
I'm saying that the proportion of people who
moved on from alcohol or cigarettes to
Marijuana would rise significantly, and I think
that's based simply upon the availability and
also the fact that it's -- possibly that
there's the culture surrounding it, that it's
not as verboten for some people.
MR. AFFLER: How unavailable is it now?
In other words, at the age that people
generally progress, is there an availability
problem currently?
MR. MERRILL: There's clearly not a
tremendous availability problem in the sense
that can you get it if you go out and look for
it, yes, you can get it. Sure. But the point
is it's different from having to sort of go to
a neighborhood you might not want to go to,
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having to associate with a group of kids you
don't want to associate with as opposed to
getting something which is just generally
available in the population, and I think
there's a very marked use of a people's use of
a substance based upon that. You know, it's
like saying sure, you can get any drug you
want, but I'm not sure I want to go to the
south Bronx in the middle of the night to buy
that drug.
MR. DAVIS: Thank you. Miss Breslow.
MS. BRESLOW: I'd like to invite you down
to my neighborhood in the East Village where
outside of my daughter's pre-school we have to
dodge the drug dealers standing on the corner
to pick her up and hopefully, not dodge bullets
one of these days.
MR. MERRILL: Can I just comment on that
because I'm certainly sympathetic and know that
in some areas that the problem is clearly much
worse than in others, but please don't
necessarily generalize and make public policy
based simply upon what happens in yours
compared to where I live and where my children
go to school, for example.
MS. BRESLOW: Of course not, but this is
what brought me to the realization that the
drug war was not working and it was causing
more harm. That was one of the things.
MR. MERRILL: Let me just ask you
something. There is a conclusion that you're
reaching and I'm not sure it necessarily is
logical from that, that if suddenly Marijuana
were legal for adults -- and I assume you don't
advocate making it available to children. Is
that correct?
MS. BRESLOW: No. That's correct.
MR. MERRILL: -- would that necessarily
stop the problems that you see in your
neighborhood?
MS. BRESLOW: No, but I think legalizing,
as Mr. Zeese suggested, which I thought was
excellent, on a continuum basis which also
addresses your issue of the price of less
potent drugs costing less and being more
available and more potent drugs costing more
and being less available, so, yes, I don't
think that suddenly children who want to find
Marijuana will not -- I think that they can get
it now. That's the crux of my comment to you.
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MR. MERRILL: And I'm not denying that.
That was also Mr. Affler's comment. I'm saying
there are both implicit and explicit barriers
that may be intangible, but in my opinion, and
you may disagree, have an impact on the
availability to children right now.
I think as with alcohol, once you have
made it legal, that availability goes up
tremendously.
Why is it alcohol is illegal among
children, but I can tell you alcohol is a much
larger problem in this country among children
than Marijuana is.
MS. BRESLOW: I think that's because it's
a much more dangerous drug, it seems to me.
MR. MERRILL: It's more of a problem
because it's more dangerous and more children
use it because it's more dangerous?
MS. BRESLOW: No. I think it's more of a
problem because it's more dangerous.
MR. MERRILL: I'm saying the prevalence of
use of alcohol among children is considerably
higher than the use of Marijuana. Are you
saying that's because it's a more dangerous
drug?
MS. BRESLOW: No, of course not. But the
thing I wanted to point out with respect to
your focus on availability was that now it's
available without any sort of control or
regulation or -- all drugs are, and no quality
control and no real credible drug use
education. I mean "this is your brain on
drugs," it made a laughing stock of drug
education. No kids believed that, and if there
was government regulation, then there could be
credible drug education which might create
respect for drugs and how they should be used,
which is impossible in the current scheme where
drugs have to be demonized. Could you address
that?
MR. MERRILL: I have. I about 9/10 agree
with you. Where I think we part company is
that, as Mr. Zeese said and you're concurring,
and I would concur, is that drugs are out of
control in this country right now, but getting
from that point to saying that legalizing them
is the answer, I can't make that jump, No. 1.
No. 2 is I absolutely agree with you that
we do a very bad job of educating and we are
about to do an even worse job of educating
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because we're about to basically cut off a lot
of the funds that were there for even
successful programs, but again that doesn't
necessarily mean that if you suddenly start
regulating it, that the money is going to flow
for education. I don't believe that.
MS. BRESLOW: No, but I'm saying it would
be credible education as opposed to the
propaganda that's being propounded now.
MR. MERRILL: Let's take alcohol again as
an example, and this is why I keep coming back
to it. Alcohol is a legal substance in
America. It's regulated in America, but we do
just as lousy a job, by the way. In fact, we
do a worse job educating our children with
respect to alcohol than we do with drugs.
MS. BRESLOW: I think that's a problem I
think we should address and I hope our
committee will address.
MR. MERRILL: I said we are in agreement.
The difference is that doesn't necessarily lead
me to believe that, ergo, we have to legalize
drugs in order to reach a better point. There
are a lot of things that we could do in between
I think that would be a lot more desirable that
we could both agree on. That's what I mean
about why polarize the issue. Let's decide on
the things we agree on. We probably agree on
more than we disagree.
MS. BRESLOW: So you're saying drugs now
are out of control, but we shouldn't regulate
them. So how do we get them under control if
we're not going to regulate?
MR. MERRILL: The fact is they are out of
control. The fact that you legalize them in
some shape or form doesn't necessarily mean you
bring them into control. Those don't follow.
So I'm saying let's take steps that are
necessary to get a better handle on the drug
situation, but that doesn't necessarily mean
that legalizing them is an obvious conclusion
of that. I can't buy that. I'm sorry.
MS. BRESLOW: Compared to what we have now
where there's no quality control whatsoever,
and there's no government or anyone telling
kids that they can't buy it, that they're
freely made available to kids by dealers, where
as if they were regulated, we could at least
attempt to not get them into kids' hands and
have credible education. I just don't see how
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you can say we should continue the current
policy.
MR. MERRILL: Because again, we agree we
shouldn't continue the current policy. The
question is whether -- your notion of
regulating includes some form of availability
that mine wouldn't, and again, I come back to
the alcohol example. We have. They are
illegal. We could do a better job of educating
kids, and one of the things when I mentioned
letting the tiger out of the bag was that once
you make these economically profitable to
main-stream business in America, it would be
very hard -- I can tell you frankly that when
we did our report on alcohol in college
campuses, we became just the monster to the
alcohol industry, and I was shocked at the
power they had to deal with us, and I think
once you do this for any other drug, you're
going to run into that same set of economic
interests which will make it even harder to
regulate it, make it harder to do the kinds of
things you want to do than it is now, as an
illegal substance, where at least you don't
have that lobby there sitting there telling you
that "know when to say when." Is that what you
call drug education?
MS. BRESLOW: I think that would be a
better choice than the anarchy in the streets
that are controlled by dealers who are carrying
automatic weapons. I think I would prefer
dealing with business people who aren't armed,
but anyway I feel like I should let it go so
other people can speak.
MR. DAVIS: One more question from the
panel. Then we'll open up to the floor.
Mr. Frolich.
MR. FROLICH: It's hard to know where to
begin because I find so many of your
assumptions to be assumptions that I don't
agree with as well as your definitions. We had
a witness yesterday who was talking about
exactly sort of this type of thing that you
just said: Drugs are out of control; that
doesn't mean to legalize them. From where I
stand drugs are legal in the United States.
MR. MERRILL: They are?
MR. FROLICH: Of course they are. There
are drugs everywhere.
What this committee is looking at is what
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to do about those drugs that are currently
illegal and how to deal with the harms that are
created by the criminalization of those
particular drugs.
The United States is awash in drugs. I
agree that drugs are out of control and most of
that lack of control has to do with legal
drugs, not with illegal drugs.
MR. MERRILL: I don't think that's what
Miss Breslow meant, though.
MR. FROLICH: I think that's one of the
assumptions. The availability thing. The idea
that you could, I guess with a straight face,
say that in order to obtain drugs, you have to
go to the south Bronx in the middle of the
night and deal with some shady character under
the overpasses just flies in the face of the
everyday reality that every New Yorker knows is
going on in the streets, but what the committee
is looking at, I think, is to try and get some
sense of what the trade-offs are between the
dangers and harms that are created by the drugs
and the use of drugs and those dangers and
harms that are created by the criminalization
of the particular drugs that are now
criminalized, but that people insist on
continuing to use, and so I just want to see if
I can follow your logic.
You're saying that adults should not be
allowed to use these particular drugs that are
now illegal because if we legalize the drugs,
the price will drop, the availability will
increase, and that increased availability will
automatically lead to increased use by kids,
and that that end result is what we wish to
avoid. Is that a fair --
MR. MERRILL: No, that's not correct.
That's not what I said.
MR. FROLICH: I'm sorry.
MR. MERRILL: Let me respond to some of
your comments, but let me just deal with that
first. First of all, I used the example of
children as an example. My whole logic wasn't
simply based upon children. I have
considerable concern about many other
individuals in our society who are over the age
of 21 and the potential of having these drugs
decriminalized. So that I used that only as an
example and I don't want it to be considered as
my prima facie truth that this is the case.
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MR. FROLICH: I am sorry. So what are the
harms? Use what I've said up here. We are
examining the harms. We have to balance the
harms. So what are the harms on the one side
versus the harms on the other side? We've had
a series of speakers come in and testify as to
the harms created by the criminalization of
these drugs, prohibition, what people refer to
as prohibition. What you're talking about is
the harms on the other side. So, fill in that
scale for me.
MR. MERRILL: Wait a minute. First of
all, and I wasn't here so I can't vouch for
what people have said. What I have heard said
today about the harms, in other words, the
increased crime, I don't buy. I don't believe
that. I think that is a false statement and I
think facts would support my perspective on
that, No. 1. So, if that's the harm on this
side, I don't feel I even have to balance that
because that's not a legitimate problem as far
as I'm concerned.
But let me ask you something: Do you,
personally, think that heroin is not a harmful
substance?
You're asking what the harms are. I think
the harms -- let's just deal with physical harm
for a minute. Do you think heroin is a
dangerous substance?
UNIDENTIFIED SPEAKER: What dosage? How
often do you use it?
MR. MERRILL: You can't say how often it's
used.
MR. FROLICH: Excuse me. I don't want to
keep going like first you have a discussion
over there. Now you're having a discussion
over here.
MR. MERRILL: He asked me a question.
MR. FROLICH: Now, you're asking me a
question. If you can't or don't want to answer
the question, that's fine, but I don't want to
debate you as to whether or not I have a
personal opinion of whether heroin is harmful.
I'm just asking you what your opinion is as to
what the harms are.
MR. MERRILL: I said yes, I think it is a
tremendous physical harm and I don't think the
answer to that is to say well, gee, if you
really don't take much heroin, you'll be fine.
That's not an answer because heroin is a habit
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forming drug. Some people, and a very small
group of people, yes, can regulate their use of
heroin and take it recreationally for very
limited periods, and by the way, it can be
harmful even under those circumstances, but
it's very hard to control use of a habit
forming drug; so, yes, I think it is very
harmful, very harmful.
If you ask me a question, you're looking
at a balance. I'm looking at this side. Yes,
I think it's physically a very harmful
substance.
MR. DAVIS: I'd like to sneak in a
question using my prerogative as the chair.
Mr. Merrill, you mentioned that you expected
increased use. If currently illegal drug use
were decriminalized, you would expect some
increased use and presumably exacerbation of
problems of drug abuse and drug addiction, and
I'm wondering if you could tell us whether you
have any confidence in the techniques of drug
treatment and programs of drug abuse prevention
that might alleviate some of the additional
harm that you would expect to come from
decriminalization.
MR. MERRILL: First of all, I said I,
personally, would expect increased use, but I
think that's debatable, increased use. I can't
prove that. There's no empirical basis for
that.
My answer to that is I think that drug
treatment can be enormously effective. I think
that we, as a nation, have not devoted enough
resources to the issue of drug treatment. I am
very frightened right now because I think with
changes that are going to occur in Medicaid,
with changes in the substance abuse block
grant, with changes in the health care system
much more toward managed care, that the
potential for substance abuse treatment in our
society is going to decline at a time when the
problem seems to be increasing.
I can give you an example of something I
was just looking at recently, that every year
in the United States about 3 million people go
into either alcohol or drug treatment programs.
Every year about 450,000 successfully complete
that treatment, and by that I mean they go
through the whole cycle, and they're clean for
at least a year. Substance abuse is a chronic
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disease, and I don't expect, as with diabetes
or any other chronic disease, everybody to be
better and asymptomatic for the rest of their
life, but I think that treatment can go a long
way in addressing the issue and repeated
treatment go an even longer way.
But I think we do a lousy job in terms of
funding it and we do a lousy job in terms of
assessing people's needs and we do a lousy job
in matching appropriate treatment to a person's
needs.
MR. DAVIS: Thank you. Let's go to the
floor. Yes, here.
UNIDENTIFIED SPEAKER: Yes, I have a
question, but first I'd like to illustrate it a
little bit.
When I was in junior high, I wanted to get
high. Well, when I went to the grocery
store -- and I think a lot of kids in junior
high wanted to try to do that too. When I went
to the grocery to buy beer, I couldn't get it;
they just wouldn't sell it to me. It was
impossible.
Now, the second thing that happened is I
found out that a number of people I knew knew
people who sold pot, and they weren't dealers
in overtown Miami. They were my peers, my
contemporaries, in the same grade I was in, and
that's happening today. You don't have to go
buy it on the street. You can buy it from
friends.
So, I smoked pot for quite a while. I
really was never much of a drinker, and I tried
other drugs because you want to try them. I
mean it's just nature, this idea that, you
know, kids don't want to try different
substances or that they're going to abstain
from sex, if they say no, it's just sort of
crazy, but the point I'm trying to make is I
know friends who live in Holland, not
Amsterdam, just in a little town, and their
feeling is that the younger kids look at them,
adults, and they smoke hash, as those old farts
that, you know, those squares that still smoke
hash.
The thing is I think there's this
forbidden fruit that really fuels what
adolescents do which seems to be a big concern
of yours.
MR. DAVIS: Do you have a question?
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UNIDENTIFIED SPEAKER: Yes. I'm wondering
what you think about the whole forbidden fruit,
if these things weren't so forbidden, do you
think people, rebellious kids would be trying
them?
MR. MERRILL: I have a whole bunch of
things to respond, but let me just answer your
specific question. I think yes, I think there
is some segment of society that takes these
substances because they're forbidden, because
they're illegal, and I think that to some
extent and, again, this is empirical -- I mean
this is conjecture; I can't prove this and you
can't prove it either, by the way, is that my
conjecture would be that, yes, as a result of
that there might be a certain segment of the
population, which I don't think would be very
big, that would not take these or might even
stop taking them if they became more available,
but I think in the long run what you'd see is
the opposite occurring. I think that the
availability would increase and that as a
result of that the use would increase overall.
Let me just make a comment to you because
one of the things that concerns me, and this
gets back to an earlier comment too, is that
there is an old saying that "two anecdotes are
not data," and there's also a danger in trying
to extrapolate from what goes on in communities
in New York, and I agree with the notion that
to some extent our policies have to be based
upon sort of local issues too; I'm not saying
that necessarily leads me to agree to
legalization, but there are some differences
among communities, and your experience in
New York may be totally different from what the
experience is in Westchester or upstate New
York, I mean, or where I live in New Jersey.
So, I don't want us to make policy by
anecdote or by regional -- very regional facts
which may be exactly what occurs in your
neighborhood or your area, but it may not be
the general situation.
MR. DAVIS: Thank you. We have another
question here.
UNIDENTIFIED SPEAKER: Thank you. I want
to thank you for the opportunity to see you
face-to-face rather than reading what you have
to say in the Times. However, it is to the
Times and certain more general information
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since you're wanting not to extrapolate from
the particular to the general.
A few months ago there was an issue which
was primarily devoted to Marijuana in the New
York Times Sunday Magazine section. In that
section it said that the Marijuana business was
a $32 billion a year business and the tobacco
industry was $45 billion. So while there is a
certain order of magnitude difference, it's
about a third. There are a number of things
that feed into this.
The question is going to be don't you
think that given what has happened to nicotine
very recently in terms of being declared a drug
and given that the DARE program, which is
pretty much a failure at $700 million a year --
don't you think that there is an opportunity at
this particular time to do something that's a
lot more current and a lot more rational
connected with the tobacco and Marijuana
industry which are, give or take a few billion
dollars, comparable industries, and if we're
going to approach -- I mean I'm asking you how,
from your perspective, this might be
accomplished.
If we're going to reeducate children about
tobacco, if possible; we're going to limit
their access; we're going to limit advertising,
couldn't something more intelligent and more
successful and more cost effective be done with
regard to Marijuana, which is a comparable
industry but doesn't kill as many people by a
tremendous order of magnitude: 400-450,000
deaths a year attributable to tobacco and no
deaths attributable to Marijuana per se.
The question is what are we going to do
about educating the young people toward both
those products?
MR. MERRILL: First of all, I agree
entirely with you that the DARE program has
been a failure, but that doesn't mean that all
drug education programs have been failures, and
I don't know how many of you read the article
in the Journal of the American Medical
Association a few months ago by Bill Botfin
(phonetic) at Cornell, which really sort of
demonstrated looking at 12,000 students that
there are a variety of good drug education
programs out there, and this is one of the
things I would answer to your question, is that
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one of the problems -- I see this with my own
children -- is we provide them with a lot of
scare tactics about drugs up to the 6th grade
and then suddenly at the very point at which
they're starting to be most vulnerable to drugs
and other things we stop educating them. To
they and one of Botfin's findings was we need
booster shots. We need every year to reinforce
this and I'm not talking about reinforcing
scare messages. I'm talking about reinforcing
messages that kids believe as kids go through
high school and the temptations increase.
So one thing I feel very strongly about is
that we do a lousy job both on many of the
education programs and now we're spending even
less on that.
You know, one fact on that which people
tend to forget, and I can't prove this, but if
you look at Marijuana use between 1980 and
1991, you see an unbelievable decrease in the
amount of Marijuana use among kids. And my
argument would be that that was a period in
which there were a variety of mechanisms, and I
can't point to which one, drug education
mechanisms, and even some of the partnership
ads -- I agree the one about "this is what
drugs do to your brain" was not one of their
best jobs, but some of their ads did have --
and there is evidence on this; they have done
research on this in certain communities, not in
New York City, but in other communities, that
this has had an effect. What happened is we
got somewhat complacent and we stopped these.
We cut back the funds.
The second thing I would say to what you
said is that you and I and David Kesler all
agree that nicotine is a drug, but there is a
guy named Thomas Blyley (phonetic) of Virginia
who happens to be the chairman of the Health
and Environment Group or whatever it's called
now, Committee, in the House that controls this
that doesn't agree with us and I'll tell you
there is a lot of bucks riding on this not
being declared a drug.
UNIDENTIFIED SPEAKER: Could you try to
address the question a little more directly?
MR. MERRILL: I thought I did. You asked
me what I would do. I would expand drug
education programs. I would do a better job.
I would declare nicotine a drug, but that's not
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going to be what's going to happen.
MR. DAVIS: We have time for only a couple
more questions. Over here.
UNIDENTIFIED SPEAKER: Thank you.
You spoke earlier at length about young
Marijuana users and the effects of Marijuana as
a gateway drug. Do you think Marijuana's
illegality, therefore forcing young people to
go to dealers who often do deal other drugs
could actually be the reason why many young
smokers go on to drugs like cocaine?
MR. MERRILL: The answer to that is yes, I
think that is a possibility, but again that
doesn't necessarily lead me to the conclusion
that I think you want me to be led to by that,
but I think yes, that is certainly a
possibility. There is certainly a culture of
drugs that surrounds that, yes.
MR. DAVIS: Yes.
UNIDENTIFIED SPEAKER: I should explain
that I'm a bench scientist, and I have tried to
keep close to the data and I thought it was
very interesting that although you suggested to
Miss Breslow that she should not expand from
her views and her incidents and so forth into
drug policy, but when you were asked the
question by Mr. Affler, your statement was you
don't have the statistics he requested, but you
have a theory. And I --
MR. MERRILL: That's not what I said.
MR. DAVIS: Could we have a question?
UNIDENTIFIED SPEAKER: The point I'm
trying to make is that there is a theory about
gateway drugs. The theory is based, and every
epidemiologist will tell you, you can't do
correlations and talk about causes, and the
question I have is how is it that one can talk
about both addiction and gateway with
Marijuana. There's no clear understanding in
anything I've read, and especially from CASA,
about what gateway means, and the correlation,
when I asked Dr. Kleber yesterday, the question
came back to me oh, but cancer, what's the
statistics, but the point is that you don't do
those kinds of statistics and draw causal
relationships.
MR. MERRILL: I'm only smiling because the
first part of the answer I was going to give
you was the same that Dr. Kleber gave you, so
clearly I can't use that.
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UNIDENTIFIED SPEAKER: That's why I gave
it as a comment.
MR. MERRILL: Let me just clarify that I
know where he was leading. Maybe he didn't
make it clear. If you have read the CASA
report on gateway drugs, and I'd be happy to
share the technical paper with you; there is a
technical paper, we make it very clear in that
paper that we draw no causality, that we can't
do that.
UNIDENTIFIED SEPAKER: Then what does
gateway mean?
MR. MERRILL: Let me finish. It's just as
you said. A statistical correlation does not
imply causality. The point that Dr. Kleber was
making yesterday and that I would emphasize too
is that back in the 1950s when we first started
looking at the issue of substance abuse,
cigarette smoking and lung cancer, all we had
then was the same epidemiologic evidence. We
had a four-fold, not a 322-fold as we have for
looking at cigarettes, alcohol and Marijuana
and other drugs. We had a four-fold
difference, and only for men.
Based upon that, because the statistical
evidence suggested the possibility of
causality, not that it suggested causality, we
spent literally billions looking into that
issue. It's the same if we look at asbestos
and lung cancer or we look at high cholesterol
and heart disease.
The point is all we're saying about that
is that there is a very strong correlation.
It's worth us investing some money to find out
whether there's some causal relationship, or
people who believe in the common syndrome
theory are correct in that they're just part of
some other underlying problem, but whether you
believe in the gateway theory or not, I think
what you have to admit is that if you see a
child who smokes, maybe not causally, but
statistically, that child is at greater risk.
If you see a child using Marijuana, that child
is at greater risk statistically of going on to
use other drugs, and maybe we can target some
of our interventions to those children; that's
all I'm saying, whether there's a causal
relationship or not.
MR. DAVIS: Thank you. We have to move to
another question. Yes, sir.
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UNIDENTIFIED SPEAKER: Well, by the way, I
have to say there is at least one person in the
room who would repeal without reference to age
restriction. That's me. But you are not the
first person to make reference to
irreversibility of repeal or decriminalization
or whatever. What I'd like to know is if you
couldn't legalize X and then recriminalize it,
how are these materials criminalized in the
first place?
MR. MERRILL: Well, first of all, I'm
blocking the name of the act, if I'm not
mistaken a lot of the issues of the illegality
of controlled substances goes back to what,
1914.
UNIDENTIFIED SPEAKER: The Harrison Act.
MR. MERRILL: The Harrison Act, that's
right. In a very different era in American
society than exists today, and by the way,
there was no real industry surrounding drugs at
the time the way there is surrounding say
cigarettes today or the way there would be
around drugs if you legalized them.
As I said, and again, we can debate this,
but once you sort of let this tiger out, once
you get major economic interests involved, it's
not going to be possible.
If it turns out what I'm saying is right
and what you're saying is wrong, it's not going
to be possible to pass another Harrison act.
MR. DAVIS: Mr. Knapp, do you have a
question?
MR. KNAPP: It might seem like a long time
ago, but at the beginning of your presentation
you had described the incidence of alcoholism
on campuses where the legal drinking age is 21,
and underage students were drinking presumably
to excess. There was, of course, a time when
the legal drinking age, at least in New York
State, was 18. Are you aware of any studies
that compare the two, and if you could comment
on those?
MR. MERRILL: One of the problems with
this is that you can use statistics to sort of
prove either point of view, that if you look at
when it was 18 to 21, if you look at overall
drinking, you actually find that there was a
decrease in overall drinking.
MR. KNAPP: When?
MR. MERRILL: When you move the age up to
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21. If you look longitudinally, there was an
overall decrease in the prevalence. In other
words, the number of people who drank, in fact,
went down.
What happened though was two things. One
is that among those, and this is still a
sizable amount, it's about half the population
who drank, the frequency of drinking went up
dramatically in that population. So you can
argue that yes, it had the effect of decreasing
drinking. You can argue that it had the effect
of increasing the intensity of drinking. It
also, by the way, for reasons that probably
have to do with other factors in society,
during that same period there was a very marked
increase in the intensity of drinking among
women. I don't know if that had anything to do
with that, but again the data would include
that.
MR. FROLICH: And CASA has those studies
available?
MR. MERRILL: Yes. Absolutely.
MR. DAVIS: I'm afraid we have to cut off
the questions.
Our next speaker is a career prosecutor in
the Manhattan District Attorney's Office who is
currently the Special Narcotics Prosecutor who
with responsibility for significant narcotics
prosecutions throughout the county of
New York -- the City of New York, I'm sorry, a
broader jurisdiction by many millions. Thank
you, Mr. Silberling.
MR. SILBERLING: When I looked over the
list of speakers, I noticed that there are very
few people in law enforcement. So I guess I
bring a different perspective to the table not
being a scientist or involved in the study of
how drugs affect communities and people, but I
think I bring a different perspective which is
over 20 years as a prosecutor, over ten years
dealing with the drug issue and crime in the
city on a daily basis, experiencing the drug
situation in New York and throughout the
country, speaking to people who are involved in
the enforcement field, not only in New York on
the local level, but on the national level and
in the international level.
I have a statement which I'll be happy to
give if you think that's the best way to go or
I could just give you some observations,
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because based upon what I've seen I'm sure
there's going to be plenty of questions for me
and I see you're also running a little late.
So I'll be more than happy to read the
statement, but I'll leave that up to you.
MR. DAVIS: The committee has your
statement, and I believe copies have been left
outside the door; so we'd be very glad to hear
your observations.
MR. SILBERLING: Okay. Let me give you
some observations which I guess for a
prosecutor may sound strange or different, but
I think most people in the field of law
enforcement agree that law enforcement alone
cannot solve the drug problem in this country
let alone this city. I obviously, as a
prosecutor, disagree with the committee's
conclusion that we should decriminalize drugs,
and I feel very strongly about that, and I'm
much more optimistic about the drug situation
now than I was two years ago, and I'll be glad
to go into that in a minute.
One of my observations is that we could be
doing a lot more in this terrible situation
that this country faces today, but we cannot do
it on the local level. The cities and states
of this country do not have adequate resources
to deal with the drug problem, and the only
way, in my estimation, that we can make
significant headway in this fight against
drugs, and I don't use the term "War on Drugs"
because in my estimation this country has never
had a war on drugs. My feeling is that when
Nancy Reagan said "just say no," that was a
hell of a lot better than "just say nothing,"
which is what we've seen from the Clinton
administration. The present administration has
taken no leadership on the drug issue. The
President has not addressed it.
There is inadequate resources provided to
localities not only on law enforcement but on
treatment, education and prevention, and my
feeling is that the only way we can make
headway in this country is to make drugs a
national priority because it impacts us in so
many ways. Not only does it affect crime and
the ability of people to walk the streets and
for kids to go to school, but it affects
business productivity, the birth of crack
babies, spousal abuse, child abuse. It affects
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us in so many different ways that we have to
make this a national priority.
When I think of what this country could do
by galvanizing its resources such as what we
did when we had the war in the Middle East a
few years ago against Iraq. When this country
gets together, it can do amazing things, but
the only way we can gain headway in this
supposed effort against drugs is by galvanizing
our resources, bringing everyone together and
finding out what works. What are the best
methods that law enforcement can use to combat
drugs. What treatment programs work. We don't
know if there's a successful treatment program
in Oregon that would work in New York because
there are no conferences; there are no
meetings; Washington hasn't taken any
leadership. We don't know what education or
prevention programs really work because again
there's nothing being disseminated to
localities that will help us deal with this
situation.
So, in my estimation we really need
leadership coming from Washington to deal with
this problem, but I also feel that throwing up
our hands and saying well, there's no
leadership from Washington. We have an
attractable problem that we've dealt with for
decades upon decades, and we might as well now
legalize drugs. I don't think that's the
answer.
And I've debated people on drug
legalization. I've heard Judge Sweet speak
about drug legalization, and the one thing I've
noticed when anyone talks about legalization is
no one can present an adequate plan, at least
in my estimation, of how they would implement
drug legalization, and the theory that you're
going to decrease usage and put less people in
prison and there will be less crime, I disagree
with it. Because if you think about
legalization, do you make all drugs legal:
Marijuana, crack, cocaine, heroin? Do you make
age restraints? Do you say anyone under the
age of 18 can't obtain drugs legally?
Because the bottom line is that once you
put restrictions on age or drugs or dosage, you
have created the very thing that people who
want legalization tried to prevent, which is a
black market.
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Restrictions on drugs lead to black
markets because those kids are going to get
their drugs someplace, and if they can't get it
legally, they're going to get it illegally.
I've also heard a great many people say
well, look what's happened overseas, and they
point to Holland and England and Amsterdam and
Switzerland. Well, those programs, if you look
at them long range, have all failed. I mean
there are over 150,000 heroin addicts in
England. I have spoken to people from
Scotland Yard who have told me that the drug
problem there is getting worse.
In Holland since the coffee shops have
been allowed to proliferate there has been a
250% increase in use of Marijuana. We know the
experiments with the park in Switzerland has
failed. So I don't see looking overseas, that
that provides any guidance for us in terms of
the effects that legalization would have here.
Now, in terms of law enforcement, what
gains or what losses have we made? Well, I
spoke a few minutes ago about being pessimistic
about the drug situation until the last year or
two, but all the data that I've seen, which has
shown me at least that casual drug use,
especially cocaine, is down considerably in the
last decade. Marijuana use is down
considerably. Surveys from New Jersey and
California show that adolescents won't use
Marijuana because of the fear; 60, 70% of the
adolescents fear the legal system and that is a
deterrent against them using Marijuana.
So, I think that the fear of law
enforcement does act as a deterrent against
people experimenting with drugs, and I think
law enforcement has gotten smarter in terms of
dealing with people who use drugs.
We have realized the value of education
and treatment and prevention, and the
District Attorneys in this city have gotten
involved with instituting what we call DETAP
programs where we have taken individuals who
have committed crimes because of the fact that
they have used drugs, and for that reason
alone, and have put them into treatment
programs, and we have used the deterrence of
the criminal justice system to get them
treatment where in other instances they would
not seek treatment. In fact, it has been law
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enforcement that has forced these people to go
into treatment programs and to stay there 12 to
18 months and get off the use of cocaine.
In my office not only have we put
second-time offenders, taken them out of state
prison and put them in these treatment
programs, we have a program for teenagers in
which they get education, in which they are
getting drug counseling. We have a program for
pregnant, addicted mothers which has been very
gratifying and very successful in which we have
taken mothers who have small children or are
pregnant and have used cocaine and have sold
cocaine because of the fact that they are
addicted to drugs and we've put them into
treatment rather than putting them into prison
and, in fact, they have graduated from this
program. They have custody of their children,
and they are working and they're productive,
and there are programs going on like
that throughout the city and through other
states. So I think law enforcement has become
much more intelligent and knowledgeable about
the drug problem. We are aware of the need to
put violent people in prisons, and we are
trying to take those people who are drug
addicts and committing crimes because of their
drug use, taking them out of the prison system
and trying to get them rehabilitated, and I
think in that effort we have been fairly
successful.
Looking long range in terms of the Cali
Cartel and drugs coming into this city and this
country, we have become more knowledgeable and
insightful about the way they operate than we
ever have. You've seen the arrests of the
leaders of the cartel in Columbia. The price
of cocaine as a result of that has gone up 50%
here in New York in the last six months. Large
shipments of cocaine are harder to come by. It
is somewhat harder to get the drug on the
street, but there are other, I think, positive
things. The use of crack, which led to a
tremendous rise in crime in the mid-1980s and
'90s, has stabilized. We are seeing less turf
wars. We're seeing less violence, and I think
the fact that the crime rate in New York is
down is due in part to the fact that crack has
stabilized and many of these drug gangs have
been taken out of business.
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Yes, the streets of New York are still, in
my estimation, unsafe, but I think the
situation is a lot better than it was a few
years ago, and I think it will continue to get
better; and I think the fact that there is an
acknowledgement about the need for treatment,
for rehabilitation and education really says
something about law enforcement, but I think
it's also unfortunate that law enforcement had
to take the lead in these programs. The
leadership to do this shouldn't come from
prosecutors. It shouldn't come from New York
City or New York State. It should come from
Washington, and until Washington takes the lead
in this area, we are not going to make
significant and substantial strides against
fighting drugs in this country. Thank you.
MR. DAVIS: Thank you, Mr. Silberling. I
would like to exercise the prerogative of the
chair again and start with some questions.
The committee has considered the DETAP
program and it raises an interesting and
potentially troubling question for us, and I
wonder if you're aware if there are any studies
assessing whether the success rate of
Defendants in the DETAP program is
significantly different from the success rate
of in-treatment of addicts who voluntarily
enter drug treatment.
MR. SILBERLING: It's hard to answer that
question only because the DETAP programs are so
new. They've been in effect -- we, I think,
started ours in 1992 or 1993. I believe 70% of
the people that have gone into our DETAP
programs are still there. So in that respect I
think it is more successful than people who
voluntarily go into programs, because my
understanding is only about 25 percent of those
people actually graduate from those programs
and stay drug free for more than one year. So
I think it's been successful.
But I think we've gone into other areas,
and I've mentioned those, about pregnant women,
which I think has been just very successful,
and that's the best I can answer your question
on that.
MR. DAVIS: Thanks. I have one other
quick question. You mentioned that you would
expect that any restrictions placed on
generally legalized drugs would create a black
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market. For instance, age limits world create
a black market, and I wonder, in your
experience as a prosecutor, have you seen that
there's a significant black market in alcohol
for people who are under age, and what level of
arrests or prosecutions have you seen?
MR. SILBERLING: I don't see levels of
arrests because that's not my jurisdiction, but
I could tell you from my own personal
experience, having two children, one age 12 and
one age 17. My daughter has told me she goes
to parties and she says Dad, there are parents
there. There are kegs of beer there. She says
if you want to get a drink, there's no
restriction. You can get a drink, and kids
have keg parties in which they sell alcohol.
So, alcohol, it's available and the age
restriction has not stopped them from getting
it, and I think that clearly would be the case
with drugs.
MR. DAVIS: Mr. Frolich has a question.
MR. FROLICH: I would like to follow-up on
that. In your paper, the statement you gave
us, what you said about the black market was
that any restrictions at all would lead to a
new black market and that that new black market
would not significantly impact the congestion
in the criminal justice system.
So, following up on the previous question,
if that would be true for the drugs that are
currently illegal, why isn't that true for
alcohol and tobacco or is it true? Is it true
that the black market in alcohol and tobacco
for those under 21 is jamming up our courts in
the same way that the black market in the
currently illegallized drugs is because that's
what you're saying here?
MR. SILBERLING: I think it's different.
There's no attempt by law enforcement to go
after kids who drink or use alcohol. I mean
the resources of the criminal justice system
are so limited. I'll be quite honest with you.
We don't really go out of our way to prosecute
Marijuana cases. We go after heroin and
cocaine cases. Contrary to popular belief, we
rarely prosecute users. Of course if someone
is caught with possession of drugs, they're
going to be prosecuted, but the main attempt is
to go after those people who sell drugs.
I tried to answer that as best as I can.
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MR. DAVIS: Mr. Affler.
MR. AFFLER: Just to follow-up on what you
were saying, that there's statistical evidence
that drug use has gone down considerably I
guess in the last decade.
MR. SILBERLING: Yes.
MR. AFFLER: Have you followed statistics
which would indicate other types of legal
substances, including tobacco and alcohol use,
seems to have gone down, and also even other
types of consumption. It's been a health
conscious decade, consumption even of red meat,
switches from red wine to white wine.
MR. SILBERLING: I've switched from white
to red. My cholesterol is high.
MR. AFFLER: Not to make light of it, and
I don't know the statistical correlation, when
you're saying that sort of Marijuana or hard
drug use has gone down, is that to a greater
extent than let's just use as a trail sign,
tobacco and alcohol, over the same period.
MR. SILBERLING: To be honest, I haven't
looked at statistics or spoken to people about
alcohol or tobacco, but when I read the CASA
study I have to tell you, I was stunned to see
the decrease in the casual use of cocaine. Of
course, Marijuana usage is supposedly increased
and the number of students using it, but I was
shocked by the reduction in casual use, casual
users of cocaine, and marijuana. Hard-core use
we know is pretty stable, and that's the target
I think we really have to try to reach. Those
are the people, the hard-core users, who are
committing most of the crimes in the city, and
they're the hardest people to reach. If we do
something, if we could reach those people, I
think we could make a dramatic effect on the
quality of life in the city, and it seems to me
the best way to get those people is actually
through the criminal justice system.
But I just want to say one thing, and,
again, this may sound strange as a prosecutor,
but I've also been a teacher, and that is, to
me the most important thing is education. Law
enforcement alone can do part of this job, but
if we could reach these kids at an early stage,
I mean from kindergarten on, and get the
message into their heads about the dangers of
drugs, we would make such a substantial stride
with the drug problem in this country I think
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it would be remarkable, but I think to do that,
again, and I have to go back to this, we need
leadership from Washington, and I just don't
see it.
MR. AFFLER: One more clarifying question.
Just as someone who works in the criminal
justice system and knows that, for example in
New York County, prosecutions can be brought by
either the Special Prosecutor's Office or the
Manhattan D.A., when you're saying we go after
primarily users, are you referring to
prosecutors in general --
MR. MERRILL: Yes.
MR. AFFLER: -- or just in the Special
Prosecutor's Office?
MR. MERRILL: No.
Most of the cases that come in, the low
level street crime cases that come into the
criminal justice system are done as a result of
undercover buys by the narcotics division of
the New York City Police Department, and I
remember a few years ago when they started this
TNT after, you may recall, Officer Byrne was
shot, and they tripled the size of the
narcotics department, and they sent cops out in
the street with premarked buy money to make
buys of drugs, and I remember one officer came
in and he said I was supposed to go out and buy
drugs six or seven blocks from the precinct.
He said, but I never got further than two
blocks away because there were people hawking
drugs. He says, buying drugs in this city was
as easy as taking an apple off a tree. You
could get it wherever you want it, and those
are basically the people that come into the
system.
Those who are arrested by uniformed police
during the stop of a car or on a search,
they're not going to be arrested for sale.
They are going to be arrested for possession,
but most of the people who come in and the
people who go to state prison in this state are
those people who sell drugs.
And if I could add just one other point,
because I think that the public really doesn't
understand this either, we talk about the
streets and I get this little statement from
the heart I guess. We talk about the streets
in the city and the fact that we put all these
drug dealers in jail in state prison. Most of
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these people who go to state prison finally
have been arrested time and time again for the
sale of drugs because the first time they're
convicted for the sale of small quantities of
cocaine or heroin, in 99% of those cases,
they're given probation. They may get a taste
of city jail, but no one goes to state prison.
It is only after time and time again of being
arrested and indicted and convicted as
predicate felons are they going to state
prison, and those people who live in this city
who call and write letters, and we get them all
the time, saying can't you do anything? I see
the same guy; he is arrested and two hours
later he's back on that street corner selling
drugs, and in my estimation that is one of the
main reasons why the quality of life in this
city has declined and why people are leaving
this city. Because they are so frustrated by
the fact that they can't get into their
building because there are drug dealers sitting
there, and the fact that they can't walk their
kids to school or take them to a park because
people are selling cocaine, and unless these
people are taken off the streets and either put
in jail or put in rehab, we're not going to
improve the quality of life in this city.
MR. AFFLER: Would your office then favor
the repeal of the felony possession in the 5th
Degree Statute, which --
MR. SILBERLING: The crack statute you
mean?
MR. AFFLER: Yes. I guess it would be
called the so-called crack statute, which if
someone has possession of 500 milligrams or
more they become a felon, and generally, if
this happens a second time, a second felon,
which unless the D.A. consents, which is not
always done, they would be subject to a
mandatory state prison sentence.
MR. SILBERLING: No, I wouldn't, and
seeing that there are no criminals in this
room, I can tell you that most of the people
who are arrested on the crack statute, most of
those cases are reduced to misdemeanors. They
are prosecuted as misdemeanors. Those
individuals who have large quantities, well
over 500 milligrams, they, in fact, depending
on their record, may be indicted and prosecuted
and sent to state prison.
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So, no, and I think the other thing we
have to realize is that there's such extensive
plea bargaining when it comes to drug cases,
and that's the main reason why so many people
don't go to state prison until they've been
convicted a number of times.
MR. AFFLER: There was a Court of Appeals
decision, People V Ryan, about two years ago in
which they created a nullage of the weight
defense, which would have meant in borderline
cases, close to 500 milligrams, they probably
would have gotten off. I'm not sure if your
office opposed to it. I believe most of the
prosecutor opposed it, and it was repealed.
MR. SILBERLING: Yes, we did.
MR. AFFLER: Could you just explain the
reasoning behind that?
MR. SILBERLING: Between the court's
decision?
MR. AFFLER: No, why your office and other
prosecutors' offices opposed amending the law
to repeal the so-called Ryan defense?
MR. SILBERLING: The Ryan defense was
hurting us in many cases. What was happening,
we had cases, for example, where if you sell
more than 2 ounces of cocaine, it's an
A felony. We had judges, for example, where a
Defendant was found with 8, 10, 12 ounces, who
said how did the Defendant know that what he
had was more than 2 ounces. It was impossible
to prove those cases, and as a result, hundreds
of cases were being dismissed from the system,
and in many cases the defendants who were large
scale sellers of drugs were walking out of
court laughing because they knew exactly what
they sell. When somebody sells drugs they know
the quantity of drugs.
We thought it was a terrible decision.
The legislature agreed with us and repealed it,
and that's the best answer I can give you on
that.
MR. DAVIS: Mr. Knapp.
MR. KNAPP: Just one question. Does your
office have a policy, because this committee
has heard testimony and has reviewed some of
the research with respect to the sterile
hypodermic needle policy or issue I should say,
does your office have a particular policy on
the sterile needle issue?
MR. SILBERLING: At first we were against
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it, but now we're more enlightened. I have
read where it has worked, and I think that if
it can be done under the appropriate setting
where it's properly monitored and if, in fact,
as the studies show, it will have a significant
impact on the reduction of AIDS, then I am not
opposed to it, and that's the best I can answer
that question.
MR. DAVIS: Thank you. Miss Breslow.
MS. BRESLOW: I'll try not to make a
speech, but I just have a few things to
mention. I, personally, think the committee
wholeheartedly agrees that we need much better
drug education and we need research on
treatment. I guess we don't agree that the
drug war is preventing a lot of research into
drugs because they're so demonized. We heard
testimony yesterday about medical Marijuana
research that has been approved by the F.D.A.
that can't go forward because the D.E.A. won't
allow the researchers to import legal Marijuana
from Holland or get it elsewhere. Anyway, so I
think there's a lot of things we agree on and
there's some things we disagree on.
MR. SILBERLING: Actually, I think we
disagreed on a lot more initially than we've
agreed to, but okay.
MS. BRESLOW: Some things that you said
really struck me. One, that your office
doesn't really go after Marijuana, and
presumably law enforcement as a whole, really
is focusing on the more --
MR. SILBERLING: It's not the focus.
Obviously, if there is a Marijuana case, it
will be treated, but it will not be treated to
the same extent obviously that cocaine or
heroin would be.
MS. BRESLOW: But the fact that maybe law
enforcement isn't going after Marijuana drug
crime as much, that, and also your remark that
drugs are available everywhere, that, plus your
remark which I think I could quote, those kids
if they can't get their drugs legally, they'll
get them illegally, taking all those things
together, it seems to me that keeping at least
Marijuana illegal is making kids get it
illegally and making them come into contact
with a criminal element that they probably
wouldn't otherwise be involved in in any way,
and I don't see the logic of that from a law
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enforcement or any other perspective. Can you
comment on that?
MR. SILBERLING: Let me address the first
part where you say about Marijuana. Resources
in criminal justice are so limited we all have
to make choices. It's the same choice as
deciding should A go to prison or should B go
to prison. The problems caused by crack in
particular, cocaine and heroin have sort of
told us in which direction we have to go, and
the impact of crack especially, which is so
harmful, has at least indicated not only to
myself but I think to the D.E.A., to other
prosecutors, to the police department that
we're going to center in on cocaine and heroin,
but we have done Marijuana cases. We've done
some very big Marijuana cases. So I think that
part of the question with limited resources is
that's where the road has taken us, and that's
I guess the choice we had to make is to channel
our resources in that direction.
I'm opposed to legalization of Marijuana,
and I think one of the reasons is that, and I'm
sure many people will disagree with me, I think
it is a gateway drug. I think that based on
that CASA study which shows that kids who use
Marijuana are much more likely to use cocaine
and other substances is another reason not to
legalize it. Can it be obtained? Sure, any
drug in the city can be obtained if you go to
the right places to buy it, but I've also said
that, and to me it was a sad statement to make,
that with two kids of my own, and I heard your
statement before that you have a young child,
that unfortunately, we're not going to rid
drugs or this country of drugs or this city of
drugs during our generation or the generation
of our kids. Hopefully, we can make a
significant dent so that the generation of our
grandchildren will live in a city that is drug
free and mostly crime free, but to start on
this road to reduce drugs, we have to do
something now, and we have to do something with
leadership coming from Washington, and I don't
think that opening the doors and saying "well,
we failed so far, let's legalize this" is the
answer. I just don't see it, and I haven't
seen anyone come up with a plan which makes any
logical sense which would allow drugs to be
legalized and implemented. I just haven't seen
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it. I mean I've heard a lot of discussions
about it, but I haven't heard anyone, including
Judge Sweet, come up with any plan that will
work.
MR. DAVIS: We'd like to take some
questions from the audience. Thank you.
UNIDENTIFIED SPEAKER: I'd like to
acknowledge the immense difficulty of your job
and thank you for your testimony today.
MR. SILBERLING: Thank you.
UNIDENTIFIED SEPAKER: Did I understand
under age drinking, for example, that it is not
an enforcement or prosecution priority of your
department or --
MR. SILBERLING: I don't have jurisdiction
over alcohol or drinking. My jurisdiction is
narcotics.
UNIDENTIFIED SPEAKER: I was just
wondering at what point in the criminal justice
system attention, if there is much, is put on
under age drinking and how that priority is
mixed in with the other priorities that you
have in drug enforcement matters like why is
alcohol different.
MR. SILBERLING: First of all, alcohol is
different for most people because it's legal.
UNIDENTIFIED SPEAKER: But not under age.
MR. SILBERLING: But not for under age.
How do you get someone for drinking under age?
Yes, if someone drinks a bottle of beer in the
street, that's one thing, but most drinking
occurs in houses. How do you get someone for
drinking? Well, they are caught in the car.
They get into an accident; they're drunk.
That's how most people are really prosecuted
for drinking. I mean it's one thing to observe
a sale of drugs on the street. I mean it's
another thing -- I don't remember the last time
I saw a 14-year old kid drinking a can of beer
in the street or a bottle of Chivas Regal.
It's very tough to enforce because it's not
open.
Drugs, we know we can go to some streets
in the City of New York and we can see drugs
taking place. I mean an undercover police
officer can go down the street and buy cocaine,
but he sure enough is going to have a problem
buying a can of beer from an 18-year old.
There is a statute which is basically useless
in this city, for example, which dealt with
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sale of drugs in schools about where the person
who sold the drugs sold it to someone who was
under 17 years of age. Well, that statute was
useless because every cop in the city is over
17 years old. Are you going to get a kid who
bought Marijuana or cocaine in a school to say
"I just bought these drugs from this 8th grade
student. I want you to prosecute him." It's
just not going to happen. It's much harder to
go after alcohol and tobacco than it is to go
after drugs. It's just so prevalent in the
streets. It's so easy to obtain.
MR. DAVIS: More generally, could you
describe how it is that your office prioritizes
prosecutions given limited resources?
MR. SILBERLING: Well, most of the cases
we get -- I mean we don't generate the cases.
The police department generates them. We
basically take what they bring in or we respond
to problems.
The big problem in the city right now is
still cocaine and heroin. Now also there's a
burgeoning heroin problem, but for many years
and still is, crack is a real problem because
we have drug gangs that were organized to sell
drugs and crack in many areas of the city, and
there was a hell of a lot of violence that was
associated with it, and that's where most of
the complaints came in.
As law enforcement officials we have to
respond to the will of the people. If you go
to a community meeting, and Mrs. Jones says,
"they're selling crack on my block and these
people are using it and they're committing
violent acts," well, that's where we have to
put our resources. They are limited, and, you
know, you go to the city council; you go to the
Mayor, and you ask for money and they basically
say if we had it, we'd give it to you, but
there's a $5 billion deficit; where are we
going to get these funds from. They're just
not available.
MR. DAVIS: Thank you. I think we have
time for just one more question.
UNIDENTIFIED SPEAKER: Likewise, I want to
acknowledge that it is a real tough job. I
want to say one thing briefly, and that is that
I don't think that we can afford to raise the
level of the campaign against drugs, the war
against drugs, for two reasons. One, the money
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is not there. You would say that the
leadership or the will is not there, and on the
other hand, I don't think that the American
public is willing to sustain the assault on
some of the civil liberties, some of the abuses
that are being perpetrated, with the forfeiture
and so forth.
I would like to give you the opportunity
as a law enforcement official and an honorable
man trying to do an honorable job, if you had
the opportunity to devise some more enforceable
laws that could be enforced with a vigor that
you would like to see laws enforced with, what
would that be?
MR. SILBERLING: That's a great question.
It may take me a minute or so to think about
that, but I think one of the real problems we
have now is we have a real problem in dealing
with immigration in this country and drugs.
For example, we know that there is a small
percentage of immigrants who come into this
country who deal with drugs, sell drugs. Most
people who come in want to come in because this
country offers a chance, but many times we get
somebody who comes in here with the idea of
bringing in drugs or dealing with drugs, and
the first thing they do is they claim political
asylum, and the I.N.S. is so understaffed and
has no resources that they give this person a
desk appearance ticket and let them out on the
street with the idea being we're going to have
a hearing to determine whether or not you
deserve political asylum in two weeks or four
weeks. Well, over 92% of those people never
return.
And what happens is some of these people,
a small percentage, get involved with the drug
trade, and we're letting these people in, and
our prisons are packed with illegal aliens who
should not be taking up the space in the
prisons, and if we could get these people out
of here -- now I don't mean the people who are
major distributors of drugs. I mean those
people who we catch who get a sentence of one
to three years, two to four years. Now the law
has been changed giving the state the right to,
rather than put these people in prison, give
them to Immigration and send them overseas.
A few years ago my office offered to
Immigration, we said we will take -- we will
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have a Defendant take a plea -- this was our
plan. We said we'll let you take a plea. This
is an illegal alien from Columbia. He pleads
guilty. He's a second time offender. He can
get two to four years in jail. We'll tell you
what. We won't put him in jail. We'll agree
to defer his sentence. We will turn him over
to Immigration. You put him on a plane and
send him out of this country, and if he
returns, he goes to jail; he serves the maximum
sentence, and Immigration said to us no, we
won't do it. We can't do it.
We thought it was a great idea. We don't
have the resources to do it. That's a major
problem. It is a major problem, but I'll tell
you, I think to me the greatest thing that
could happen would be one day when we see
President Clinton getting on TV and saying, you
know something; we have a problem in this
country, and we have to do something about it,
and I want to mobilize this country, and I want
to get these commercials on TV. I want to
devise education programs. I want to bring the
best minds in this country on education,
treatment, prevention and law enforcement and
let's see what works and let's come up with
some theories and some programs and let's put
some money towards this and take it out of the
defense budget and do something here and then
maybe, maybe, maybe we'll make a dent in this
problem.
MR. DAVIS: Thank you very much,
Mr. Silberling, for taking the time to speak to
us this evening.
Our next speaker today is Mr. David Leven,
who is the Executive Director of Prisoners
Legal Services of New York, a position he's
held for more than 15 years. Prisoners Legal
Services represents inmates in civil matters
throughout the prison system of this state and
has been responsible for many significant
correctional reforms under Mr. Leven's
leadership.
MR. LEVEN: Thank you.
I appreciate the opportunity to address
the committee and the public this afternoon. I
also want to congratulate the committee for its
excellent report. I would like to start
initially by responding to some of the things
said by Mr. Silberling. One of the things that
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he mentioned was that he -- that I believe none
of the people in this room are criminals. In
fact, I would suspect that many of the people
in this room are criminals because anyone who
has used illicit drugs is a criminal, and in
this country 75 million people have used
illegal drugs. 40 million people use them
occasionally, according to your report, and
some 12 million people use them regularly.
There are lots of criminals -- too many
criminals in this country who need not be
criminals.
Secondly, Mr. Silberling said people who
use or sell drugs are arrested time and time
again before they go to prison. What does that
tell you? It tells you very simply that our
drug laws are not a deterrent to the sale and
use of drugs. They simply are not. For people
who are drug addicts, drugs are one of the most
important things in their lives, and they will
not be deterred by our drug laws no matter how
harsh they are. Mr. Silberling mentioned that
the Cali Drug Cartel has been somewhat
dismantled. The Cali Drug Cartel is one of
hundreds. They are all over the world.
They're not going to be stopped, for the most
part. They haven't been stopped in the past 15
years despite the fact that we have poured $150
billion into the law enforcement effort to
reduce drug distribution and use.
Drug distribution and drug use continues
fairly evenly despite the effort that's been
made during the past 15 years.
Again, Mr. Silberling mentions that
cocaine use is down, but heroin use is going
up. It's going up substantially and Marijuana
use among teenagers, although it may be, and
I'm not sure where he gets his statistics from,
that 60 or 70 percent of high school seniors
won't use drugs because of their fear of them
or at least Marijuana. In 1992 21% of high
school seniors used Marijuana. In 1993 that
percentage increased to 26. In 1994 I believe
it was just under 30%. A whole lot of high
school seniors all over the country are not
afraid of our drug laws, nor have been
75 million people. Over one-third of those
over 12 years old have used illegal drugs at
one time or another.
Last year the New York State Court of
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Appeals in People against Thompson noted the
following: "The harsh mandatory treatment of
drug offenders embodied in the 1973 legislation
has failed to deter drug trafficking or control
the epidemic of drug abuse in society and has
resulted in the incarceration of many offenders
whose crimes arose out of their own addiction
and for whom the cost of imprisonment would
have been better spent on treatment and
rehabilitation. The experience of the last two
decades has clearly vindicated the doubts Chief
Judge Brytell expressed in People against Brody
on the wisdom of the Draconian drug sentencing
laws". That is the highest court in the state
which is saying our drug laws have failed.
They upheld the drug laws as not being totally
irrational, but they also invited the
legislature to change them, indicating that
reform of the penalogical policy choices in
combatting the drug scourge lies with the
legislative, not the judicial branch.
It is unquestionably time not only to
amend our drug laws and our drug policies, but
it is also time to stop fighting the so-called
War on Drugs whose casualties, largely due to
prohibition laws, are children, young adults,
mostly poor minorities and primarily low level
drug sellers and users, mostly non-dangerous
young men and women.
We are punishing people instead of
treating people. That's what our drug laws are
supposed to do when they're enforced. That's
what our criminal laws are all about. They're
about punishment. They are not about helping
people, and that is the problem with them when
it comes to dealing with people who have a drug
problem. The DETAP program may have been
relatively successful, but how many people has
it impacted. Probably less than 150. There
are 25,000 people in New York State prisons now
having been convicted of drug crimes, 7,000
having been convicted of drug possession alone.
And many of them are serving lengthy sentences
including thousands of women who are not
dangerous to anyone, and to the extent that
they need help, they don't get it for the most
part while they're in prison. They could get
it in much less costly but much more effective
drug treatment programs.
We have had a major interdiction effort in
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this country which has completely failed to
stop the entering into this country of drugs
through all kinds of ways. The United States
Department of Justice Bureau of Justice
Statistics report "Drugs, Crime and the Justice
System" states regarding drug smuggling into
the United States, the length of its borders
and the volume of international traffic makes
the detection of contraband very difficult, and
it supports that conclusion by noting that we
have 88,000 miles of coastline and more than
7500 miles of borders with Mexico and Canada.
We have 300 ports of entry into the United
States, and according to the report, more than
400 million people entered or re-entered this
country in 1991, more than 128 million
vehicles, 157,000 vessels, 586,000 aircraft and
3.5 million containers. How can we possibly
stop drugs from entering into the United
States? We cannot do so.
The former executive editor of the New
York Times, Max Frankel, in an article in the
spring edition of the Drug Policy Letter
maintains that for the 5 million seriously drug
addicted Americans "a year's supply of heroin
for all could be made from opium poppies grown
in only 20 square miles of land, not quite the
area of Manhattan." It doesn't take much land
to grow opium poppies. A year's supply of coke
can be stashed in 13 truck trailers. That's
all we need. He correctly contends that
eradicating the supply abroad is impossible,
interdicting drugs at the border is a joke.
It is time to stop kidding ourselves. The
law enforcement war has failed.
Criminalizing the use and sale of drugs
has made a mockery of our justice system and
has created terrible disrespect for our laws
amongst the old and the young alike, but it is
not only the general population which uses
drugs. A survey several years ago revealed
that 9% of law students, those who will be
using our laws and protecting their integrity,
have used an illegal drug during the past
month. About the same percentage of medical
students, those who should know the dangers and
potential uses of drugs, also used illegal
drugs. If the same percentage of doctors and
lawyers used illegal drugs we could, in
New York, replace the current 25,000 or so
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prison inmates who are convicted of drug crimes
with the same number of doctors, medical
students, lawyers and law students.
Let's just briefly examine what might
happen if the Rockefeller Drug Laws were even
enforced more than they are today. And by the
way, before we talk about that, let's look at
the statistics, because Mr. Silberling says we
haven't made enough of an effort. Let's look
at the effort that has been made and what's
happened to our prison population.
Your report notes that prison population
doubled over a 12-year period. In fact, it
tripled between 1980 and 1993 from 21,000 to
over 65,000. It's now almost 69,000. It's
mostly due to drug convictions. The number of
people incarcerated for drug crimes rose from
886 in 1980 to 11,000 in 1994. Over a 1200%
increase, a 1200% increase in the number of
people convicted and sent to prison for drug
crimes, and it has had no impact on drug sales
or usage in this state.
Today some 45 percent of those entering
our prison system today are convicted of drug
problems. So what would happen if we tried to
escalate law enforcement to an even greater
extent. What if we were to incarcerate
250,000, a ten-fold increase over the
approximately 25,000 people now incarcerated.
Well, first of all, it would probably be
impossible to do, but even if we could, we
would still have some 3/4 of a million drug
users in New York State and it would have cost
$50 billion or more for prison construction,
for law enforcement, to build more courthouses,
et cetera. We would have very little impact as
a result of increasing our prison population to
250,000.
California is going in that direction.
They have over 130,000 people incarcerated in
California largely for drug crimes. Texas is
moving in the same direction. We must stop the
law enforcement effort because it has failed,
and it cannot succeed.
Several recommendations. Obviously, we
need to make treatment available to all who are
in need. We cannot continue the hypocrisy of
condemning people to prison for a problem for
which we failed to provide needed help. Recent
studies have shown that drug treatment is cost
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effective. It's far less expensive, and it's a
lot more humane than imprisonment. If we can
find enough prison space for people who aren't
dangerous, who are simply drug possessers or
low level drug sellers, and find enough prison
space for people who are dangerous, certainly
we must be able to find the money to put into
treatment, spaces for those who are addicted
and who need help.
The Rockefeller Drug Laws must be
repealed. The Draconian sentences cannot be
justified under any rational sentencing policy.
These laws fail to distinguish between minor
and major participants in the drug trade and
are thus extraordinarily unjust. This is
highlighted by the fact that those possessing
just 4 ounces of a narcotic drug face the same
sentence as murderers, arsonists and kidnappers
while inmates convicted of rape, sexual assault
of a child and armed robbery carry lesser
sentences. In this regard I think there is
really a critical need, as Mr. Silberling said,
to start getting people to meet together, to
put people's heads together from law
enforcement to experts in the field of drug
abuse and drug use; to begin to work together
on the same level playing fields, to create a
better understanding of how our drug laws have
failed and cannot succeed in order to hopefully
change their attitudes, because if we can't
change and we don't change the attitudes of law
enforcement, police officers,
district attorneys, it's going to be extremely
difficult to change the attitudes of
legislators and policy makers and City Hall.
It's understandable that their attitudes are
difficult to change because they've seen the
damage which is caused by drugs, and clearly
damage is caused by drugs. What they don't
realize is that there is substantially more
damage caused by our drug laws and the
enforcement of those laws.
Mr. Silberling said there are dealers on
every street corner. Of course there are.
That's because drugs are illegal. We wouldn't
have those drug dealers on every street corner
if drugs were legalized.
Maybe we don't have a plan as yet, but we
don't have a law enforcement plan that works
either. It simply doesn't work. It's
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completely failed despite all of the efforts
that have been made over decades to enforce our
laws against drugs.
We can develop a plan. Maybe it will
work. Maybe it won't. But let's give it a
chance. Let's experiment. That's all we're
suggesting be done here, and there are plans
which seem to have some credibility, including
the legislation which has been proposed by
Senator Gallagher. It has a lot of good
aspects to it. I would like to see
Mr. Silberling respond to each one of the
aspects he criticized, and if there's a better
way of doing it, let's try the other way. But
at least let's experiment. We can have sunset
laws. We don't have to have this as a profit
making business. There don't have to be
profits just because we have drugs legalized.
It could be government regulated, government
controlled and it could be a not-for-profit
making business.
We have seen what happens when we give
control of our drug laws to law enforcement.
Even in this past legislative session when
there was some effort to change our drug laws,
it really didn't succeed. We gave enforcement
to law enforcement, to District Attorneys to
allow people in prison who had been convicted
of D felons to be released upon their approval,
providing that the Department of Correctional
Services and Parole agreed that those people
either had completed a drug treatment program
or were no longer in need of treatment, and
what happened; only a small percentage of those
people were approved by D.A.s for release.
District Attorneys should not control what
happens to people who are drug users or drug
sellers.
To the extent that we still are going to
continue to have drug laws, it should be judges
who have complete discretion to sentence people
depending upon the circumstances of the crime
and the life history of the individuals
involved.
The work of this Bar Association is
significant, but I think it may take more and I
would recommend at least that consideration be
given to the creation of a New York bipartisan
study commission convened by Chief Judge Judith
Kaye to provide a non-political forum to
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discuss and debate meaningful and constructive
drug policy reform in New York. A national
commission should also be established.
Polls in recent years are instructive.
They reveal that a large majority of citizens
support drug treatment and counseling, not
punishment, particularly for drug users, and a
majority of our citizens feel that our drug
enforcement laws have completely failed.
The drug laws in New York have been an
inevitable catastrophe. Prohibition did not
work with alcohol, and with respect to that,
after prohibition ended, the murder rate
dropped for eleven consecutive years. After
alcohol prohibition ended, assaults with
weapons dropped for ten consecutive years. We
don't know what will happen if drugs are
legalized. We don't know whether or not there
will be an increase in drug usage among
children, but we will certainly make an effort
to ensure that there's not a black market that
gets to children. That effort hopefully might
be successful because obviously the focus at
that point will be to sell drugs to children
and hopefully we can prevent that from
happening.
We have failed to learn the lesson of
alcohol or drug prohibition until now, but as
Franklin P. Adams stated in 1931 "prohibition
is an awful flop. We like it. It can't stop
what it is meant to stop. We like it. It's
left a trail of graft and slime that don't
prohibit worth a dime. It's filled the land
with vice and crime. Nevertheless we're for
it."
It's time to stop being for drug
prohibition and to start employing reasonable
and realistic means to address a difficult
problem.
In conclusion, we can no longer afford
drug laws which are destroying young lives
rather than helping people and protecting
society. We can no longer afford drug laws
which drain this state of billions of dollars,
tens of billions of dollars, hundreds of
billions of dollars, which are needed to help
make it survive. A new direction is urgently
needed and policy makers must summon the
courage to proceed in that direction to develop
sensible, workable and humane drug policies.
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Thank you.
MR. DAVIS: Thank you, Mr. Leven. Do we
have questions from the panel? Any questions
from the audience? Well, that's a seamless
presentation.
MR. LEVEN: It must mean that everyone has
disagreed with what I've said.
MR. DAVIS: Or agreed. Oh, we have a
question.
UNIDENTIFIED SPEAKER: I would just like
you to comment on what you think would happen
if you legalize drugs and decriminalize drugs
in terms of state corruption, in terms of
corruption in drugs if it's legalized and how
would that affect the issues?
MR. LEVEN: I honestly have no idea
because we haven't tried it. Although we
haven't had corruption, I don't think, with
respect to legalizing alcohol. So, I honestly
don't know.
We have a lot of corruption now in law
enforcement, in police forces, because of
drugs. There are a lot of police officers on
the take. There are lots of police officers
who turn their back, and understandably. Many
police officers recognize the futility of the
drug war.
There are other aspects to the drug war
which I'd like to point out, and which I'm
reminded of by your question. That is that the
drug war has really had an incredibly
disproportionate impact on minorities and
women. Minorities constitute over 90% of those
people in New York State prisons who have been
convicted of a drug crime, over 90 percent, and
yet studies show that at least with respect to
African Americans they constitute only 12
percent of drug users in this country. Clearly
a large majority of drug users are white. Now
many of them are not in poor neighborhoods.
There are poor white neighborhoods and people
who are selling drugs in those neighborhoods
are being caught, but a disproportionate number
of people are being caught as street sellers
and users in minority neighborhoods because
it's easy to catch them on the street. You
don't catch them in Wall Street offices where
still drug dealing takes place, or all over
this country in schools and other public places
where drug dealing takes place. So we have a
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disproportionate number of minorities who are
incarcerated for drug crimes.
The same is true of women. 70 percent of
those women who are incarcerated now in New
York State prisons are incarcerated for drug
crimes compared to approximately 40 percent of
men, and most of these women again are not
dangerous to themselves or others. They are
not violent people. Some of them may need
help. Some of them may be dangerous to
themselves or children in some ways, but they
don't get the help they need for the most part
while they're in prison. They would get the
help they need if they were in drug treatment
programs.
MR. DAVIS: Another question.
UNIDENTIFIED SPEAKER: I was wondering if
you see any connection between the growth of
prison labor and the privatization of prisons
and even the chain gangs with maybe the
government's or whomever's unwillingness to
repeal acts like the Rockefeller Law and keep
incarcerating more and more people in order to
do the work? Does that make sense?
MR. LEVEN: Yes, if I understand the
question. I don't see the connection between
prison labor and our drug laws. There is a
good deal of prison labor. In New York it's
mostly used for things which are at least
relatively constructive, at least while people
are in prison; although I must say that there
are not very many programs which would be
useful for people once they leave the prison
system.
So again, one of the problems with our
current drug laws is you take a lot of people
away from their jobs, because there are a lot
of drug sellers and users who have jobs. You
put them in the prison system, and when they
get out, they're not going to be able to get
those jobs back or any other job because
they're now a convicted felon.
With respect to the chain gangs, they're
being used mostly in the south, Florida,
Arkansas. It started actually in Arizona. I
think New York will resist them. It's a kind
of labor which will just create a great deal of
hostility and resentment in those people who
are forced to do hard labor for 10, 12 hours a
day chained to four or five other people
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working in the hot sun in a situation which is
probably dangerous to themselves as well as to
people who are driving by in their cars who
slow down to gawk and yell at them. It's a
humiliating experience which is not going to
have any kind of a positive impact, but I don't
see the relationship between any of those chain
gangs and our drug laws and law enforcement.
UNIDENTIFIED SPEAKER: Thank you.
MR. DAVIS: Thank you.
UNIDENTIFIED SPEAKER: I wonder if you
would agree that it's not enough to say that
you're going to legalize drugs. It seems to me
that what has to be done is that the
legalization of this has to be coupled with all
of the money that you'd save on police, judges,
prisons, courts should be spent on education,
treatment, unleashing Hollywood, let's say, for
a war against drugs, making it unchic, if you
will, getting Madison Avenue involved, if you
will, and perhaps even putting a skull and
cross bone on these legalized drugs, whatever
the container has in it, and I just wonder if
you'd comment on that approach.
MR. LEVEN: Everything you said I
completely agree with. In fact, one of the
things that I think our Board of Regions and
Education Departments ought to be doing is
developing a much more comprehensive statewide
drug and alcohol abuse curriculum, and if it
means extending the school day in order to have
that happen from kindergarten through the
senior year, then I think that that ought to
happen.
In fact, extending the school day will
probably decrease the amount of drug usage by
students for whatever reason we extend it;
whether it's for those kinds of classes which
could be integrated into other courses or done
separately, but other kinds of programs,
because most crime which is committed by
juveniles is committed between 3:00 o'clock and
6:00 o'clock of the day, right after school and
before kids go home for dinner, by kids who
often have parents who are working and don't
know what their kids are doing between 3:00 and
6:00. If you keep those kids occupied with
constructive activities, they are a whole lot
less likely to be abusing drugs, what are now
considered elicit drugs, as well as alcohol.
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So I completely agree with you, and get
Hollywood involved. I think Mr. Silberling was
right. I think President Clinton has neglected
the drug issue for whatever reasons, if it's
because of his embarrassment because of his own
drug use and not inhaling Marijuana, but
whatever the reason, he has not done anything
with this issue and ought to be taking a
leadership role.
UNIDENTIFIED SPEAKER: The point being, of
course, we need a joint approach.
MR. LEVEN: It has to be an integrated,
joint approach. There's no question about it.
Drug education has to be a key element of it.
I also agree you have to be labeling drugs,
whatever is being sold, and you have to
educate, not just children, but adults, about
the potential dangers of elicit drugs.
Absolutely.
MR. DAVIS: Thank you. Dr. Cleveland.
DR. CLEVELAND: I wanted to ask a little
bit about what the Prisoners Legal Services
does and how that is affected by the drug war.
MR. LEVEN: Prisoners Legal Services of
New York is a program which is funded by the
state to provide civil legal services to
convicted felons in our 69 state prisons. We
provide a comprehensive range of civil legal
services from representing inmates in
disciplinary hearing appeals to guard brutality
cases to immigration cases.
There is only a minor connection, I think,
between those who are incarcerated for drug
crimes and the services that we provide;
although again, there is really a serious
dichotomy, I think, to a large extent in the
inmate population between people who are
nonviolent drug offenders and people who are
convicted of violent crimes, some of whom also
don't belong in prison, but some of whom do,
and clearly are dangerous, and you see that
constantly.
We also see the same kind of thing
sometimes with women who have sometimes been
forced into the drug trade by men, women who
have been victims of domestic violence, some of
whom have killed their abusers, but many of
whom simply don't belong in prison, and if they
belong at all, they don't belong for the
lengthy sentences they're serving because they
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are really not dangerous people. They are only
dangerous to the person they killed who was
their abuser.
MR. DAVIS: Mr. Levin, thank you for
staying with us so late into the day.
I'm going to adjourn the hearings now and
we will reconvene tomorrow at 9:00.
Some of the speakers tomorrow will be
Federal Judge Sweet and State Supreme Court
Justice Alvin Schlesinger. I hope many of you
will be able to join us. And thank you again
to Q & A Reporting for providing the court
reporter for today's hearings.
(Time noted 5:15.)
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