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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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. Q & A REPORTING SERVICE (800) 675-EBTS 6 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 Q & A REPORTING SERVICE (800) 675-EBTS 7 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 11 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 Q & A REPORTING SERVICE (800) 675-EBTS 12 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. Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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, Q & A REPORTING SERVICE (800) 675-EBTS 17 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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. Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 24 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 27 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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, Q & A REPORTING SERVICE (800) 675-EBTS 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, Q & A REPORTING SERVICE (800) 675-EBTS 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, Q & A REPORTING SERVICE (800) 675-EBTS 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. Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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, Q & A REPORTING SERVICE (800) 675-EBTS 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. Q & A REPORTING SERVICE (800) 675-EBTS 38 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 40 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. Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 42 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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 Q & A REPORTING SERVICE (800) 675-EBTS 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, Q & A REPORTING SERVICE (800) 675-EBTS 47 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. Q & A REPORTING SERVICE (800) 675-EBTS 48 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 Q & A REPORTING SERVICE (800) 675-EBTS 49 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 Q & A REPORTING SERVICE (800) 675-EBTS 50 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 Q & A REPORTING SERVICE (800) 675-EBTS 51 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. Q & A REPORTING SERVICE (800) 675-EBTS 52 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 Q & A REPORTING SERVICE (800) 675-EBTS 53 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 Q & A REPORTING SERVICE (800) 675-EBTS 54 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? Q & A REPORTING SERVICE (800) 675-EBTS 55 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 Q & A REPORTING SERVICE (800) 675-EBTS 56 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 Q & A REPORTING SERVICE (800) 675-EBTS 57 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 Q & A REPORTING SERVICE (800) 675-EBTS 58 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. Q & A REPORTING SERVICE (800) 675-EBTS 59 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. Q & A REPORTING SERVICE (800) 675-EBTS 60 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 Q & A REPORTING SERVICE (800) 675-EBTS 61 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, Q & A REPORTING SERVICE (800) 675-EBTS 62 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 Q & A REPORTING SERVICE (800) 675-EBTS 63 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. Q & A REPORTING SERVICE (800) 675-EBTS 64 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 Q & A REPORTING SERVICE (800) 675-EBTS 65 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. Q & A REPORTING SERVICE (800) 675-EBTS 66 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 Q & A REPORTING SERVICE (800) 675-EBTS 67 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. Q & A REPORTING SERVICE (800) 675-EBTS 68 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 Q & A REPORTING SERVICE (800) 675-EBTS 69 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 Q & A REPORTING SERVICE (800) 675-EBTS 70 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. Q & A REPORTING SERVICE (800) 675-EBTS 71 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 Q & A REPORTING SERVICE (800) 675-EBTS 72 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 Q & A REPORTING SERVICE (800) 675-EBTS 73 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 Q & A REPORTING SERVICE (800) 675-EBTS 74 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 Q & A REPORTING SERVICE (800) 675-EBTS 75 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 Q & A REPORTING SERVICE (800) 675-EBTS 76 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 Q & A REPORTING SERVICE (800) 675-EBTS 77 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 Q & A REPORTING SERVICE (800) 675-EBTS 78 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 Q & A REPORTING SERVICE (800) 675-EBTS 79 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 Q & A REPORTING SERVICE (800) 675-EBTS 80 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 Q & A REPORTING SERVICE (800) 675-EBTS 81 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 Q & A REPORTING SERVICE (800) 675-EBTS 82 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 Q & A REPORTING SERVICE (800) 675-EBTS 83 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 Q & A REPORTING SERVICE (800) 675-EBTS 84 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. Q & A REPORTING SERVICE (800) 675-EBTS 85 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 Q & A REPORTING SERVICE (800) 675-EBTS 86 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 Q & A REPORTING SERVICE (800) 675-EBTS 87 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. Q & A REPORTING SERVICE (800) 675-EBTS 88 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 Q & A REPORTING SERVICE (800) 675-EBTS 89 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.) Q & A REPORTING SERVICE (800) 675-EBTS