1 jbp 1 2 ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 3 --------------------------------x 4 The Committee on Drugs and the Law 5 Public Hearings on a Report: 6 A WISER COURSE: 7 ENDING DRUG PROHIBITION 8 --------------------------------x 9 10 October 12, 1995 9:00 a.m. 11 42 West 44th Street 12 New York, N.Y. 13 Before: 14 KATHY H. ROCKLEN, Chair 15 JOHN H. DOYLE III 16 AGATHA M. MODUGNO STEPHEN L. KASS 17 DANIEL MARKEWICH ELEANOR JACKSON PIEL 18 19 20 21 22 23 PIROZZI & HILLMAN Computerized Reporting 24 274 Madison Avenue New York, N.Y. 10016 25 212-213-5858 PIROZZI & HILLMAN 212-213-5858 1 jbp 2 2 (Hearing Commenced) 3 MR. DOYLE: We are going to commence 4 our third day of hearings. 5 My name is John Doyle. With me up 6 here at the podium, on my right, is Agatha 7 Modugno, who is a member of our committee, and 8 she is corporate counsel at Minerals 9 Technologies, Inc. On my left is Stephen L. 10 Kass, who is a partner at Carter, Ledyard & 11 Milburn, and Steve is also a member of our 12 committee. 13 I would first like to acknowledge the 14 assistance and participation of Joseph Pirozzi of 15 Pirozzi & Hillman, which is a well-known court 16 reporting firm here in New York City. Joe and 17 his firm are participating on a pro bono basis in 18 reporting the proceedings and will provide us 19 with a transcript. We very much appreciate Joe's 20 contribution to our effort. 21 Our first witness this morning will be 22 Marianne Apostolides. Ms. Apostolides is a 23 graduate of Princeton University, she is a 24 research associate at the Lindesmith Center. 25 For those of you who have been working PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 3 2 in this field or who have been present at some of 3 our prior hearings, you will recognize that name 4 as being the name of a very active and productive 5 organization, funded in large part by George 6 Soros and the Soros Foundation, which has 7 assembled a group of outstanding experts in this 8 field, and they have an ongoing series of public 9 lectures that you, at the exit, can get copies 10 of. 11 They have three lectures coming up 12 within the next month, and it is something that 13 anyone who wants to keep up to date in this field 14 will find essential to be in touch with. 15 As to Ms. Apostolides, her areas of 16 concentration are needle availability, drug 17 policy in Western Europe and Australia, drug 18 testing and drug information, and she's written 19 in those and other fields as well. 20 Ms. Apostolides, would you like to 21 begin your presentation? 22 MS. APOSTOLIDES: Thanks very much. I 23 will be speaking mainly on Dutch drug policy. 24 MR. DOYLE: Would you speak right into 25 the microphone. PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 4 2 MS. APOSTOLIDES: Is that better? 3 MR. DOYLE: A little bit better but 4 put it as close as you possibly can. 5 MS. APOSTOLIDES: I will be speaking 6 mainly on Dutch drug policy. 7 MR. DOYLE: Can everybody hear okay? 8 It is very important that everybody hear. If you 9 can't, just raise your hand. I'm sorry. 10 MS. APOSTOLIDES: And the Dutch 11 philosophy on drug use is mainly a harm reduction 12 philosophy, and that's a philosophy that's been 13 taken up by other countries, although I don't 14 think as consistently as in the Netherlands. 15 Our perspective is basically a public 16 health perspective as opposed to a criminal 17 justice perspective on drug use. Drug use itself 18 is not viewed as an evil that can be somehow 19 eliminated by the criminal justice system or by 20 promoting abstinence. It is seen as inevitable 21 and problematic. Drug use is seen as a 22 manageable problem and there is also a 23 distinction between drug use and problematic drug 24 use. 25 Law enforcement is not seen as a PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 5 2 suitable means to regulate the demand side of 3 drugs, and it's mainly seen that law enforcement 4 can sort of exacerbate the problems associated 5 with drug use. 6 Although law enforcement is used in 7 terms of stopping international drug trafficking 8 and which the law is dealing with, and I think 9 the harm-reduction philosophy has been the most 10 consistent in the Netherlands than any other 11 country, and it was laid out in the late 1960s, 12 early 1970s. 13 I want to quote to you a government 14 white paper report to Parliament from 1975 which 15 basically lays out harm reduction before the term 16 was even sort of coined. 17 It says, "The aim of Dutch drug policy 18 is to contribute to the prevention of and to deal 19 with the risk that the use of mind-altering drugs 20 is to individuals themselves and their immediate 21 environment and society as a whole." 22 There is no sort of moralism. There 23 is no "we must end all drug use." Its kind of 24 seen as "Let's deal with a very pragmatic 25 approach. Let's deal with drug use in the best PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 6 2 way we can to reduce as many of the risks as we 3 can." 4 In 1972 there was a report of the bond 5 committee which was formed to evaluate government 6 drug policy, and this is where a lot of drug 7 policy was crystallized. The committee drew a 8 distinction between hard and soft drugs. 9 Soft drugs being hashish and marijuana 10 and hard drugs being pretty much everything else. 11 This distinction was between drugs that pose 12 unacceptable risks versus those that pose 13 acceptable risk. And soft drugs were considered 14 relatively harmless and, therefore, users and 15 small dealers should be left alone. 16 The bond committee also created a sort 17 of two-track philosophy, a medical approach to 18 addicts to try to get them medical attention. 19 Also social work type of stuff. And the criminal 20 justice approach to large-scale dealers and 21 international traffickers. 22 And with this, the bond committee 23 report was incorporated into the revised OB map 24 of 1976 which had two main provisions, again, 25 acceptable versus unacceptable risks and the PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 7 2 distinction between user and trafficker. 3 Now to the cannabis policy. Cannabis 4 is not explicitly legal in the Netherlands. 5 Under the law, 30 grams, possession of 6 30 grams of cannabis is considered a summary 7 offense rather than a criminal offense, and it is 8 pretty much never prosecuted. But that is the 9 only thing in the legal code in terms of the 10 legality or illegality of cannabis. 11 So basically the way cannabis is 12 regulated is through the expediency principle, 13 which is laid down in the code of criminal 14 procedure. 15 And the expediency principle states 16 that the public prosecutor has the right not to 17 prosecute a certain crime on the grounds deriving 18 from the public good. The expediency principle 19 is a basis part of Dutch law and not specifically 20 geared to drug policy. And basically the way 21 that works is the general prosecutor creates 22 guidelines for other prosecutors as to how to 23 apply this expediency principle for different 24 crimes. 25 And it basically provides another way PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 8 2 to prosecute or to establish priorities as to 3 what crimes are most important to prosecute and 4 which can be sort of, in a way, turned aside, or 5 turn the other way. 6 On the guidelines for coffee shops, 7 there are five. 8 One, no sale to minors, and that's 9 considered people under the age of 16. No sale 10 of any other drugs. No advertisements. No 11 encouragement of use. And no sale of anything 12 over five grams. And until last month with the 13 new Dutch drug law, it is called the Drugnota, 14 that was up to 30 grams. That has been reduced 15 greatly and in part that's because of pressure 16 from the European community since the borders are 17 -- it is much more laxed. France especially, 18 there has been a lot of pressure on the Dutch to 19 sort of tighten their policy. 20 Also there were high-level discussions 21 about the legalization of the production and sale 22 of cannabis, as opposed to decriminalization. 23 They were putting quotes on the books. This was 24 sort of stalled by the Drugnota of last month, 25 which stated, and I am quoting, "the legalization PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 9 2 of either hard or soft drugs is not an objective 3 ... the Dutch government would not expect any 4 decrease in the criminal trade in drugs if the 5 Netherlands were to legalize drugs (soft drugs) 6 unilaterally. Moreover, legalization would lead 7 to even lower prices on the Dutch market, and 8 thus to a further increase in drugs tourism, a 9 development the government deems unacceptable." 10 There, again, you have this sense of 11 feeling pressured from the European community. 12 One other thing about cannabis. The 13 coffee shops are really sort of integrated in the 14 life of Dutch cities. It is like going into a 15 cafe or a bar here in the United States. You see 16 people drinking their capuccino or having a beer 17 or smoking a joint. It is very integrated. It 18 is not anything that's sort of shocking to 19 anyone, I think, except tourists. So it is 20 important to note that. 21 Also there were approximately 1,200 to 22 1,500 coffee shops in 1991, which was the latest 23 figure I could get. The turnover of cannabis 24 products in coffee shops is about two billion 25 Dutch guilders per year. PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 10 2 Dutch treatment policy is somewhat 3 different from the United States. About 75 4 percent of current addicts come in contact with 5 some sort of treatment agency. And these can 6 include low threshold methadone maintenance, 7 social work and there is now going to be a heroin 8 prescription program, which I will talk about in 9 a minute. 10 Let me first talk about methadone 11 maintenance. The philosophy of methadone 12 maintenance is different from the philosophy in 13 the United States. Methadone maintenance is not 14 seen as something -- the objective is not to get 15 all users to stop using heroin. The objective is 16 to work with the user to find out how he or she 17 can stabilize his lifestyle, find a job, find a 18 home, and sort of regulate his drug use. 19 So in the United States the doses are 20 often times very high and there can be, it often 21 times with urine tests there could be punitive 22 measures taken if you are found to be using other 23 drugs. 24 In the Netherlands people are sort of 25 asked, "Are you still going to be using heroin?" PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 11 2 Okay, if people are going to be using heroin, 3 still, the dose is lower. Perhaps they will use 4 methadone in the morning and go to the job and 5 take their heroin at night. But the objective, 6 again, is to reduce the harm of using drugs and 7 increase the well-being of the people who are 8 using the drugs that often includes, having a 9 job, earning an income and stabilizing or 10 regulating use. 11 So with this kind of approach you can 12 use your heroin, even if you are on methadone, if 13 its in consistently with the Dutch philosophy 14 where it doesn't with the American philosophy. 15 95 percent of clients use heroin as 16 well but only 37 percent use it on a daily basis. 17 And programs are generally, as I said, widely 18 accessible and the rules are less strict and, 19 therefore, have a broader reach. That's a quote 20 from the Dutch sort of Administrative Health 21 Welfare and Sports. 22 Also 25 percent of methadone clients 23 are integrated into society, in other words, they 24 are in school or have jobs. 33 percent are in 25 control of their addiction, in other words, they PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 12 2 use very little heroin and 25 percent suffer from 3 serious physical and social problems. 4 There is also going to be, starting in 5 1996, an experimental heroin prescription program 6 based in part on the program that's now being 7 done in Switzerland. 8 The objectives of this program are 9 fourfold. First it is to determine whether 10 addicts can be stabilized in terms of getting a 11 job. To determine whether their well-being can 12 be improved, their physical as well as social 13 well-being. To determine whether additional use 14 can be reduced, mainly cocaine, and to determine 15 whether they can be encouraged to end their 16 addiction. 17 I am quoting from the committee which 18 proposed to the government that this program be 19 started. They said "Experiments of this kind may 20 be found to have a positive effect upon the state 21 of health in the broadest sense of the term, that 22 is to say, the biopsychosocial well-being of 23 certain categories of addicts without there being 24 unacceptable psychological damage." 25 Dutch philosophy on drug education is, PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 13 2 again, very different from the American 3 philosophy. Kids are taught about drugs within a 4 broader social -- within a broader context. So 5 the context is basically promotion of healthy 6 behavior and developing social skills to be able 7 to cope with life, basically, as opposed to 8 dealing with this sort of "Just say no," police 9 officers coming into schools, which we have with 10 the program. 11 I have a lengthy quote, which I think 12 sums up the Dutch philosophy toward education, 13 which I would like to read to you. It is written 14 up by the Ministry of Welfare, Health and 15 Cultural Affairs. It says: 16 "A large number of people experiment 17 with drugs without actually becoming addicted. 18 There are many types of users with many types of 19 lifestyles. Measures to prevent occasional users 20 from becoming addicted are therefore extremely 21 important and preventing problems accordingly 22 given at least equal emphasis as preventing use 23 of drugs." 24 That's very different from the 25 American philosophy. PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 14 2 "In view of the above, the Dutch 3 government believes that drug use should be shorn 4 of its taboo image and its sensational the 5 emotional overtones. The image of the user and 6 addict should be demythologized and reduced 7 reduced to its real proportions, for it is 8 precisely the stigma paradoxically enough, that 9 exercises such a strong attraction on some young 10 people." 11 This is very striking and very 12 different from the American approach. 13 I have some statistics that drug use 14 among youth in the Netherlands for every drug 15 including cannabis is lower than drug use in the 16 United States. Obviously, this approach is a 17 positive one. 18 Needle exchange, perhaps, I will go 19 over quickly. They were established in 1984 by 20 the emphasis of the junkie unions which is 21 basically organizations of users who were urging 22 the establishment of syringe programs actually to 23 prevent the spread of hepatitis as opposed to 24 HIV. And 93 percent of the syringes distributed 25 in Amsterdam were returned. That's the latest PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 15 2 figure. We have had enough talk on that in the 3 U.S. 4 Also, there is an interesting program 5 now that's run by the National Institute on 6 Alcohol and Drugs, why they will actually test 7 drugs that people -- for a small fee -- they will 8 test drugs that people bring to them. 9 Mainly Ecstasy pills, MDMA, MDEA and 10 the goal of this is, again, harm reduction. They 11 often set up at large raves, which are large 12 parties, and you will have police officers around 13 who are in support of this and kids, mainly 14 teenagers will come, bring their pills to be 15 tested by people who are working for an 16 organization that's, in part, supported by the 17 government. 18 And basically what it does is allow 19 kids to know what they are putting in their 20 bodies. It allows people to realize, yes, this 21 is Ecstasy, it is 120 milligrams, so they know 22 exactly what they are taking. That is a 23 harm-reduction philosophy. It seems kind of 24 strange to Americans to know that the government 25 -- even though the drugs are illegal -- the PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 16 2 government is saying give us your drugs, and we 3 will tell you what is it in. We are not going to 4 arrest you for it. It is kind of a strange 5 thing, with a practical lesson the U.S. can adopt 6 from the Dutch drug policy. 7 Basically, I think it is true that we 8 can't sort of translate everything from the Dutch 9 experience to the American experience because the 10 health care system is different, the poverty 11 level is different, there is much more of a 12 pragmatic versus moralistic undertone to the 13 culture in a lot of different areas. But I think 14 there are certain lessons that we can derive. 15 First, harm reduction as the goal of a 16 drug policy, taking drug use and drug policy out 17 of the realm of the criminal justice system and 18 into the realm of public health. 19 Second, a realization that zero 20 tolerance of drug use is unworkable and causes 21 more harm than it does benefit. 22 Third, decriminalization of the 23 possession of drugs for personal use. 24 Fourth, widespread establishment of 25 needle exchanges and low threshhold methadone PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 17 2 maintenance clinics. 3 Finally, the encouragement of 4 small-scale experiment programs such as the 5 heroin prescription trial. Basically, most 6 important is this change in thinking, this turn 7 away from moralism and toward dealing with users 8 as people with problems and dealing on their 9 level and finding out what they need to best 10 stabilize their lives. 11 MR. DOYLE: Thank you very much. Let 12 me introduce Dan Markewich on my far left, who is 13 a member of our committee and will be 14 participating on the panel this morning. 15 Why don't we start off with questions, 16 if there are some, from the panel members here 17 and then we'll go to the members of the audience. 18 There will be a microphone available to you for 19 your questions. 20 Agatha, do you do you have a question? 21 MS. MODUGNO: Yes. 22 You had mentioned having statistics 23 that the instance of drug use among minors in the 24 Netherlands was lower than it is in the States. 25 I was wondering if you do have general statistics PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 18 2 about the pervasiveness of drug use, what 3 percentage of the population in the Netherlands 4 is active in the use of drugs? 5 MS. APOSTOLIDES: I do in fact. An 6 ever used of cannabis is 25 percent of the Dutch 7 population age 12 and over. So I think probably 8 I couldn't get statistics for age 18 and over. 9 So it would probably be higher. 10 For cocaine ever used it is 5.5. For 11 amphetamines, 4.1. For hallucinogens, also 4.1. 12 For opiates, it is 7.3. But that's, if you were 13 to look at for heroin only, it is much lower. 14 That includes, I think, as well people who not 15 only use methadone but people who also have been 16 prescribed opiates by a doctor. 17 That's ever used. 18 If you look at used in the past year 19 or used in the past month, it is much, much 20 lower. You have cannabis 9.9 percent, 21 hallucinogens, 0.3. So it is not very high. 22 MR. DOYLE: Let me go now to the left. 23 Steve, do you have any questions. 24 MR. KASS: I do. I have THREE 25 questions. First, is a follow-up of the last PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 19 2 question. 3 Many of the people who are receiving 4 methadone or other forms of maintenance have 5 stabilized lives, and that, I assume, means they 6 are living with, many of them, living with their 7 families. 8 One of the concerns here is that if 9 the Bar Association recommendation of 10 decriminalization is adopted, there would be 11 widespread use by people who are not currently 12 using drugs because it would be seen as a 13 validation of that use. 14 I wonder whether you have any 15 statistics as to the degree of which family 16 members of people who are on maintenance, or 17 themselves, become users and how that frequency 18 would compare with the population generally? 19 MS. APOSTOLIDES: I don't know that 20 statistically, no. 21 MR. KASS: Do you hav any thoughts on 22 whether that immediate audience would be more 23 likely affected by the fact that a parent, for 24 example, or a sibling was presently using drugs? 25 MS. APOSTOLIDES: I don't think so. I PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 20 2 think it is kind of an odd set up, I think, 3 because there is no -- I don't know how to term 4 this. Unlike, I think, alcohol, there is -- it 5 is harder to use heroin. 6 In other words, there are more costs 7 using heroin than there are, say, using alcohol. 8 I think most people would not be attracted to 9 using this kind of drug. So I think if you 10 created a decriminalized system where possession 11 of personal use is not -- you are not arrested 12 for it and small-type dealing, you would not be 13 arrested, you still wouldn't have hordes of 14 people going out saying "I want to try it, I want 15 to use heroin." 16 One thing there is in the Netherlands, 17 there is, sort of, almost a respect for the 18 substance and the potency of the substances, and 19 you can't be using, you have to realize what you 20 are putting in your body. 21 And so I think if we had that kind of 22 education where we let people know what the risks 23 of using certain drugs are without making 24 moralism out of it, but saying, "If you use 25 heroin, this is what's going to happen to you. PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 21 2 Be careful, be warned." And this is not 3 something that people can build up and sort of 4 experiment with or might want to experiment with. 5 Then, I think you will have, you know, 6 again, that's the proper approach. 7 I don't know if I am answering your 8 question. 9 MR. KASS: You are leading me to my 10 second question, which is, the feasibility of 11 experimenting with a more, a different kind of 12 policy in one jurisdiction among many. 13 You reported that the Dutch seem to 14 have moved backward, at least in the area of 15 marijuana. It is not clear whether that would 16 also apply to cocaine and heroin and other kinds 17 of substances, but the pressures of the European 18 community and the threat of tourist drug use seem 19 to call into question the ability to maintain the 20 practice or philosophy that they developed. 21 Do you think we would have that same 22 problem here? Or just talk about that a little 23 in the context of hard drugs. I don't think they 24 are taking a step back in the cannabis policy. 25 They are reducing enough that it can be sold in PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 22 2 coffee shops, but possession of up to 30 grams is 3 still, you can possess up to 30 grams. 4 So it is not really, I think it is 5 more sort a nod to the European community than a 6 reversal of policy. 7 I think that a lot of international 8 pressure on the countries to have more 9 restrictive policies as coming from the United 10 States. So I think that if we were to sort of 11 start to alter our philosophy and our thinking 12 and our policy, it would give a lot of other 13 countries in Western Europe, I think, a little 14 more breathing space to begin to examine their 15 own drug policy. I don't think it is so much the 16 WEC would be putting pressure on us, but we're 17 putting pressure on the WEC. 18 MR. KASS: I was speaking of the New 19 York versus other states as an analogue to Europe 20 and the Netherlands. 21 MS. APOSTOLIDES: If you look at the 22 experience of Germany why you have different 23 cities, certainly in Hamburg and Frankfurt, who 24 have more progressive policies than other cities, 25 that experience has worked very well, and I think PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 23 2 this sort of, the tenor of the American political 3 world right now is really toward federalism, 4 loosen the ties of central government and let the 5 states sort of be the experimental lab, 6 laboratories, whatever. 7 I think that fits right into what the 8 New York Bar Association is interested in. 9 MR. KASS: That there be no influx of 10 people seeking access to hard drugs into the 11 Netherlands, for example, France, Germany. 12 MS. APOSTOLIDES: Definitely for 13 cannabis. For hard drugs on the borders of the 14 cities, people are worried, but it is mainly, the 15 debate is mainly around cannabis and not around 16 hard drugs. 17 MR. KASS: Two other questions if I 18 may, John. 19 MR. DOYLE: Sure. 20 MR. KASS: Is there any practice 21 lawful or unlawful of discrimination by employers 22 or landlords, for example, in the Netherlands 23 against people who are on these programs? 24 MS. APOSTOLIDES: Not that I have 25 noticed. And I spoke to a lot of people who are PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 24 2 on methadone and who are running methadone 3 clinics. There is also a much sort of more, I 4 don't want to say better, but in some sense it is 5 a better system of getting people public housing. 6 So often times people who are on 7 methadone maintenance -- as I read these 8 statistics to you before, 25 percent have jobs. 9 That means 75 percent don't. They are probably 10 on some form of public housing. There is no 11 discrimination. 12 MR. KASS: Do you know whether it is 13 lawful or would be lawful for a landlord or 14 employer that wants to refuse to rent or refuse 15 to hire on the grounds that the person was 16 admittedly an addict? 17 MS. APOSTOLIDES: I can almost 99 18 percent sure say that would be illegal, but I 19 don't know that for certain. But that, to me, 20 would be completely opposite of the Dutch sort of 21 approach to drug use. But I certainly can find 22 that out for you for sure. 23 MR. KASS: Finally, are there any 24 restrictions on access to drugs by pregnant 25 women, and if not, do you think there should be a PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 25 2 distinction in a policy with respect to women? 3 MS. APOSTOLIDES: That's an 4 interesting question and that's not something 5 that I'm sure of. But, again, I can very easily 6 find that out. 7 I sort of -- that's an issue I haven't 8 really focused on. There are people who 9 concentrate more on this issue who would be 10 better to answer this question. 11 MR. DOYLE: Dan. 12 MR. MARKEWICH: I have one question 13 and since I came in in the middle, if it is 14 something you dealt with before I got here, 15 please let me know. 16 I think most of us in this country, 17 and I guess my own views on it are reinforced by 18 what my daughter who spent some time in the 19 Netherlands reported to me upon her return, and 20 now she's off in Belgium. I think most of us 21 think of the Dutch as more or less an ethnically 22 and religious homogenous society with a widely 23 common world view. That may be an exaggeration, 24 but I think we think that way. 25 You gave us certain statistics on drug PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 26 2 use and abuse. Are there statistics as to drug 3 use and abuse in the Netherlands by ethnic and 4 religious groups that are outside the Dutch 5 mainstream? And if so, are those statistics 6 markedly different from those inside the Dutch 7 mainstream ethnically and religiously? 8 MS. APOSTOLIDES: I don't know about 9 religiously. In terms of immigrants -- 10 MR. MARKEWICH: Well, all right. 11 MS. APOSTOLIDES: Immigrants both 12 legal and illegal, there is more use than among 13 the native Dutch population. I don't have those 14 statistics with me, but I do have them. They are 15 very easy for me to get access to them. 16 There is greater use. 17 MR. MARKEWICH: Does that tell you -- 18 and I don't wanted to oversimplify either -- but 19 does that tell you that just maybe because of the 20 difference between American society and Dutch 21 society in terms of our being such a diverse 22 country with so many diverse ethnic, religious, 23 et cetera, groups, that the Dutch experience in 24 many respects is itself outside of the confines 25 of what would be likely to occur in American PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 27 2 culture if drugs were decriminalized? 3 MS. APOSTOLIDES: No. What it tells 4 me is that poverty and drug use are very linked. 5 MR. MARKEWICH: Maybe that's a similar 6 answer, actually. 7 MS. APOSTOLIDES: But I think that's 8 sort of separate from the harm-reduction approach 9 to drug use. In other words, it may be that in 10 pockets of poverty in this country there is 11 greater drug use, as it is in the Netherlands, 12 but that doesn't mean that approaching those 13 pockets with a sort of public health as opposed 14 to criminal justice instead of building more 15 prisons, having these mandatory minimum 16 sentences, saying to people, okay, let's deal 17 with this on a medical level as well as a social 18 level. 19 I mean I don't see where that could be 20 precluded by, you know, the fact that certain 21 minorities in the Netherlands use more than the 22 natives. 23 Do you see what I am saying? 24 MR. MARKEWICH: I certainly do. But I 25 see no necessary major contradiction between harm PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 28 2 reduction on the one hand and continued law 3 enforcement on the other hand. 4 I think they can be concomitants to 5 each other, although I don't see that one has to 6 decriminalize drugs in order to emphasize harm 7 reduction rather than law enforcement. That's as 8 much of a social policy as a legal policy, and I 9 recognize it may also have a certain amount of, 10 one could say, hypocrisy about it. 11 But one could also say it is not 12 dissimilar if American society or the states or 13 the cities decide to do it that way to the same 14 kind of discretion as the Dutch prosecutors have 15 in treating things even if they are technically 16 illegal. At least as far as personal drug use is 17 concerned. 18 MS. APOSTOLIDES: The only comment I 19 would have on that is that there is certainly a 20 role for law enforcement in the drug issue, but 21 that if you deal with larger scale dealers and 22 with trafficking as opposed to with the users and 23 with smaller scale dealers, I think that's a much 24 healthier approach for the people who are using 25 it and also for society. PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 29 2 MR. MARKEWICH: Okay. I have no 3 problem with that at all. 4 MR. DOYLE: Let's ask if any members 5 of the audience have any questions for Ms. 6 Apostolides. Why don't you come up and grab the 7 Mike, and I would appreciate it because we don't 8 have anyone to bring it to you. 9 A QUESTIONER: I'm asking this: Do 10 the Dutch have any particular policies with 11 regard to cocaine? What do they do about cocaine 12 since that's one of the hottest problems here? 13 MS. APOSTOLIDES: Cocaine is not as 14 much of a problem in the Netherlands as it is 15 here. Often times it is people who -- it is 16 co-drug users. People who use heroin as well as 17 cocaine, so they often come to the realm of the 18 methadone maintenance treatment systems. 19 So there the Dutch experience isn't 20 exactly parallel to the American one. Although I 21 think the person to speak to on this would be 22 Peter Cohen of the University of Amsterdam. He 23 would be much more conversant than I would. 24 MR. DOYLE: Any further questions? 25 Yes, sir. PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 30 2 A QUESTIONER: Just one of the many 3 things I was thinking about asking is, what do 4 you think about the principle of expediency? 5 First of all, have you had any thoughts about its 6 compatibility with the law in any of the United 7 States? And second, whether anybody there has 8 ever used this principle of expediency for 9 personal gain, to gain leverage over some people? 10 MS. APOSTOLIDES: The second half of 11 the question, I really wouldn't know, although I 12 would like to think not. This has been a part of 13 the Dutch sort of legal code for centuries. So I 14 wouldn't think so. 15 I don't think there is an exact 16 parallel to the U.S. legal code. But, again, I'm 17 not a lawyer. So I don't know that I would be 18 able to answer that question. 19 MR. DOYLE: We have some time for one 20 more question. Yes, sir. 21 A QUESTIONER: Hello. It was my 22 impression that in some ways the coffee shop 23 system in the Netherlands was based on a 24 reinterpretation of the Gateway theory of regular 25 drug use, i.e., drug users progressed through PIROZZI & HILLMAN 212-213-5858 1 jbp Apostolides 31 2 initiation to rely on two dependents. 3 I was wondering whether you have any 4 information on the philosophy what role the 5 Gateway progression is deemed to have any 6 legitimacy in Dutch drug policy? 7 MS. APOSTOLIDES: The Gateway theory 8 is something that's been debated, I think, more 9 in America recently than in the Netherlands. 10 But there is definitely a separation 11 between soft and hard drugs, and that would sort 12 of in a way -- it is kind of like the Dutch do in 13 some ways, buy into the Gateway theory, although 14 that's been pretty much disproved by Lindsay 15 Marie and John Marie. 16 Basically, the the Gateway approach 17 stipulates the hard drugs and soft drugs. So 18 drugs which pose an acceptable risk can be more 19 accessible and people won't have this need to go 20 on to other drugs. And there is also very strict 21 policy on no sale of other drugs in coffee shops 22 and that's pretty much it. But they don't 23 actually have the term the Gateway theory. 24 MR. DOYLE: All right, thank you very 25 much. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 32 2 (Applause) 3 MR. DOYLE: Our next witness is Judge 4 Robert Sweet. 5 Judge Sweet is a member of the United 6 States District Court for the Southern District 7 of New York, where he has served for a number of 8 years with great distinction. He has devoted a 9 significant amount of his time to work here at 10 the Association on drug policy. For a number of 11 years, he chaired our committee on drugs and the 12 law before Kathy Rocklen, our present chair, took 13 over. 14 In that capacity he worked very, very 15 closely with members of the committee and with 16 the public in dealing with drug policy issues, 17 and he is well known throughout the country as a 18 very leading expert and spokesman in this area. 19 He has been a Deputy Mayor of the City of New 20 York. 21 And we very much appreciate your 22 joining us this morning, Judge Sweet. Thank you. 23 JUDGE SWEET: John, a delight. What 24 fun it is to be back with all of you, even the 25 court reporter, who is a good friend, and to be PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 33 2 in this glorious room. 3 You know, I wish Stimsom were here 4 today because I have a profound belief and 5 conviction that if he were here he would be 6 somewhere within the confines of the position 7 which I take. 8 I think this committee and the 9 Association really should be proud of the 10 position which they have taken. It is probably 11 one of the best thought-out positions, and this 12 is certainly one of the most prestigious 13 associations that have swung into this issue and 14 dealt with it on a rational, coherent basis. 15 I am delighted to see you all again. 16 I think all of you know by one way or another my 17 views on this subject, and I guess they are not 18 too startling today. Though, at the time when I 19 first took the position it was a little bit more 20 exciting perhaps than it is now. 21 I think that this Association and this 22 committee are doing exactly the right thing, 23 because the root problem which we have is public 24 apathy and ignorance and the acceptance of a 25 mythology on this subject, which is not grounded PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 34 2 in fact. 3 I hope that these proceedings will be 4 honestly discussed, well-reported and that way 5 we'll illuminate and shape public opinion, both 6 here in the city and throughout the country and 7 give us an opportunity to reevaluate our public 8 policy toward drugs and toward each other. 9 Hopefully, these hearings are going to 10 reaffirm President Kennedy's statement that 11 "Change is the law of life." 12 Now, I have a prepared statement which 13 I will submit to the committee, both to save you 14 time and also to spare you the agony of having 15 heard what I have said in an earlier point. I 16 will just try to shorthand some of those 17 statements. 18 I re-examined my position on this 19 issue, having been an Assistant United States 20 Attorney, a Deputy Mayor of the city, a sitting 21 district court judge, as well as a practicing 22 lawyer every now and then, and I had accepted 23 conventional wisdom on drugs and did not 24 challenge the criminal prohibition until in 1988, 25 faced with a mandatory minimum sentence of a PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 35 2 young fellow, a young Puerto Rican who had no 3 prior record, I was -- because of the 4 circumstances of that arrest and that plea -- I 5 was forced to impose the 10-year mandatory 6 sentence. 7 It seemed so unjust to me at the time 8 that it challenged, made me challenge the 9 proposition of the drug laws and the criminal 10 prohibition against drug use. 11 I spoke to people, some of whom have 12 testified before you, Dr. Nadelmann, and tried to 13 figure out what was wrong with our present 14 policy, and then expressed my views on the 15 subject. That was sort of an exciting period and 16 it included a petition for my removal and 17 censure, and a few other things. 18 Also, I had my five minutes of fame -- 19 Warhol had 15 -- but I had only five minutes and 20 appeared on national television and did things 21 like that. 22 Over the last five years it has been 23 an interesting journey on this issue and today, 24 of course, is one of the high points, because of 25 the nature of this Association and this PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 36 2 committee. 3 Obviously, our present policy has 4 failed. I'm sure you know the statistics, and 5 they are in my prepared remarks. 6 The bottom line is that despite the 7 fact in the last 10 years the number of drug 8 offenders in jail have increased nine times. It 9 is quite clear that the problem has not 10 diminished nine times. In fact, the problem 11 being the use of drugs remains relatively 12 constant. 13 One can get into an argument with 14 respect to a particular drug at a particular 15 moment, but consistently I think there are 16 roughly 6 million Americans who are involved with 17 drug prohibition -- I mean the use of drugs and 18 maybe 2 million of those have serious problems. 19 And at the same time we have spent over $500 20 billion in the last 20 years to deal with this 21 problem. And we have not solved it. 22 There is episodic violence on the 23 streets. Much of the statistics in New York 24 indicate over 80 percent of the drug-related 25 crimes are turf related, systemic, and I think PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 37 2 that's a by-product that indicates the failure of 3 the system. 4 Why? Why hasn't all of this worked? 5 I think it is relatively simple. To crib from 6 George Stephanopoulous, "It's the money, stupid." 7 There is so much money involved in this traffic, 8 because of the illegality, that it cannot be 9 stopped. And when I say it cannot be stopped, I 10 think that's a statement of fact. 11 I was on the West Coast recently and 12 was told about that warehouse in Los Angeles 13 where the amount of cocaine was staggering. It 14 was reported in the press, and I have forgotten 15 how many millions, I think $20 million worth of 16 cocaine. But that fact simply indicates that the 17 money is such that people will go to any length 18 to be sure that there is distribution. 19 The economists tell us that the rate 20 of increase is about 200 times. By that I mean 21 the cost of the drug in Columbia and the cost of 22 the drug retail on the streets in New York, and I 23 have had cases where those numbers have been 24 verified. 25 This is, as the New York Times in 1990 PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 38 2 said, one of America's major industries and it is 3 the money that is driving it. 4 So, obviously, let me just also say 5 that the fact that we have almost a million 6 people in jail in this country, higher than any, 7 proportionately higher, than any of the western 8 nations by a substantial degree, three, four, 9 five times as many proportionately, indicates 10 that this punitive policy just doesn't work. 11 Well, what to do? A proposal for 12 change? I think the first thing to do is to 13 recognize that this problem in its entirety is a 14 health problem. That mind-altering substances 15 are a part of modern life. They have to be 16 understood and ameliorated, and not prosecuted 17 and prohibited. 18 If we can change American habits with 19 respect to smoking, which of course deals with 20 tobacco which is a much more addicting drug than 21 any of the drugs that are illegal, and that 22 tobacco which kills 400,000 people a year in this 23 country, if we can cut that usage, as we have by 24 about 50 percent, through education, there is 25 absolutely no reason why we cannot, in my view, PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 39 2 accomplish very much the same thing, the same 3 approach with respect to the presently 4 prohibitive drugs. 5 Marijuana has beneficial medical uses. 6 There is really no dispute about it. Glaucoma, 7 multiple sclerosis, cancer, those things are 8 clear. Also it is obvious that needle exchange 9 is the appropriate way to handle addicts, with 10 the idea, obviously, of trying to assist in the 11 reduction of AIDS. 12 So I think what we should do is to 13 educate and treat it as a medical problem. The 14 National Academy of Sciences, I'm sure, has been 15 reported to you. You observed it yourself in 16 September and approved the use of needle 17 exchanges. That's moving toward the 18 harm-reduction policy that Marianne just 19 discussed with you. 20 So, I think drugs should be treated 21 the same as alcohol, barred from use by minors, 22 from advertising, should be taxed, should be 23 legal, should not be underground, and as with 24 alcohol, anybody who harms others or is a threat 25 to others as a result of the influence of drugs PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 40 2 should face criminal sanctions. 3 We should recognize the responsibility 4 for conduct is an individual matter. That 5 societal decrees can be effected only if they 6 accord with the mores of society. 7 I remember hearing Whitney Seymour, 8 one of the -- I don't know whether he would like 9 to be referred to as a pillar or not -- but 10 certainly one of the rocks upon which this 11 Association was based, always quoting Lord 12 Mouton. I never could locate where he found Lord 13 Mouton's quote, although I did track down 14 something, so that I think I can say that his 15 view, that is, Mouton's and Seymour's both, is 16 that "The test of a civilized society is its 17 compliance with the unenforceable." 18 What we have to do is change people's 19 minds on this. 20 Now, I also think that beside the 21 practical elements that I have tried to discuss, 22 I think also that there is a basis in the law, in 23 our constitutional thinking on this subject for a 24 change in policy. 25 The framers of the Constitution were PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 41 2 obviously committed to a theory of natural law 3 and natural rights stemming from John Locke, and 4 they developed this in their own writings and 5 explicitly acknowledge that individuals possess 6 certain inalienable rights, not enumerated in the 7 text of the Constitution and not contingent upon 8 the relationship between the individual and the 9 federal government. 10 What you have to do to determine what 11 those rights are is to determine the 12 fundamentality of the rights. In Griswold, 13 speaking of the right of privacy, Justice 14 Goldberg required the court, in his language, to 15 "Look to the traditions and collective conscience 16 of our people and to the emanations of specific 17 constitutional guarantees and experience with 18 requirements of a free society." 19 When a particular right has been 20 narrowly defined as, for example, right to 21 possess and spoke marijuana or cocaine, the 22 courts have consistently refused to recognize it 23 as one which is fundamental. But if you cast it 24 as a right to ingest substances, or even in more 25 general terms, as a right to self-determination, PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 42 2 a right logically and practically related to the 3 right to privacy, a right to self-ownership, if 4 you will, a right to recreation, perhaps a more 5 coherent argument can be made for the proposition 6 that the right to ingest consciousness-altering 7 substances has a constitutional foundation. 8 Of course, there is a historical 9 basis. The right to be free from government 10 interference with respect to the manufacture, 11 possession and use of drugs, which was the case 12 in this country since its founding and up until 13 the early part of this century. So I think there 14 is a sharp line that can be drawn between 15 government and the individual, and I quoted Izia 16 Berlin's views on that subject. 17 Now, what's the argument or what's the 18 antithesis? What's wrong with what I have just 19 tried to briefly advance? 20 Of course, one of the propositions for 21 change has to be bottomed on our history with 22 prohibition. Our failure to regulate through 23 criminal prohibition of a mind-altering 24 substance, namely, alcohol. All of us are 25 familiar with that. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 43 2 The statement is frequently made that 3 we're sending the wrong message by talking the 4 kind of -- excuse the expression -- talking the 5 talk that I have just enunciated. I don't think 6 wrong messages is the correct analogy. What 7 we're doing is to say that everybody has to 8 determine their own individual code of behavior, 9 and I think the true message of our present laws 10 is that the drug laws are ineffective and that 11 they are discriminatory and the facts of the 12 discrimination are set forth in the statement. 13 Also, it is frequently said, drugs 14 made legal, no longer are subject to criminal 15 prohibition, will expand the use of drugs. Of 16 course, nobody knows the facts. Parenthetically, 17 it would be good if we could in some fashion in 18 this country define, delineate an experiment 19 which might in some fashion test that thesis. 20 In fact, the best studies on alcohol 21 use before, immediately after, during and then 22 finally after Prohibition was eliminated would 23 indicate that this is not necessarily true. 24 There was a drop after the initiation 25 of Prohibition in 1917. Parenthetically, PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 44 2 obviously by definition, it is very hard to get 3 meaningful statistics on this sort of thing. The 4 students, the best study I have seen on it by 5 Mersky and somebody else, I forget who the other 6 person is, were really based on hospital 7 admissions and liver problems, that sort of 8 thing, not annecdotal, and, of course, no surveys 9 at the time. 10 In any case, their conclusion was that 11 the best evidence was there was a drop in usage 12 shortly after the adoption of Prohibition, then 13 came back to about the same level that alcohol 14 consumption was before Prohibition, remained at 15 that level after Prohibition was terminated, 16 after the country finally realized that the 17 system didn't work as it hoped they will with 18 respect to drugs, and only sometime thereafter 19 did it increase not to a substantial degree but 20 an increase. 21 So I think also 10 states 22 decriminalized small amounts of marijuana in the 23 70's and there is no evidence of an increase of 24 use during that time. And you have just heard, 25 very ably presented about what the situation in PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 45 2 the Netherlands is. So what can we expect? I 3 think there may be change in the air. One would 4 hope so. 5 There is good writing on the subject. 6 Steven Dukes, America's Longest War, your own 7 report, which I think is solid and constructive 8 and the Rochester Bar Association has taken a 9 position and, of course, the writings of Ethan 10 Nadelmann. 11 A Baltimore grand jury has concluded 12 that our present policy is not effective and that 13 a treatment program should be adopted by this 14 society. 15 So I think there is a possibility of 16 change. 17 Now, that's briefly stated what I have 18 submitted to you. I would like to sort of share 19 with you some of the thinking that has evolved in 20 my mind ever since 1989 when I first got into 21 this controversy, if you will. 22 In those days it was a drug war. It's 23 useful to note that Lee Brown who is obviously 24 the administration's point man on this issue 25 today no longer refers to it as a drug war. And PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 46 2 I think that's a very useful step, because the 3 war analogy is "us against them," where the 4 reality is, as we all know in Pogo's terms, "We 5 have met the enemy and they is us." It isn't a 6 war in any accurate sense. 7 I think also we are beginning to learn 8 perhaps that the demonology involved is unsound. 9 The crack baby demonology. Everybody, when I 10 first took this position and found myself on 11 national television, I was asked if I had visited 12 the crack babies in Bellevue? Well, I hadn't. 13 And I didn't know then of the studies which would 14 now permit me to say -- and it wouldn't have been 15 a useful experience anyhow, because there is no 16 clinical, solid evidence -- that crack, the 17 condition of crack babies results from the 18 ingestion of crack by the mother when compared to 19 all of the other constellations which are 20 present. Obviously diet, alcohol, the whole 21 series of things. The crack baby is really part 22 of the demonology. 23 I think when the National Academy of 24 Sciences begins to move into this field and takes 25 the position that they have with respect to PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 47 2 needle exchange, of course, they are just going 3 back to a 1982 position which the National 4 Academy took with respect to the ending of the 5 criminal prohibition of marijuana. So I think 6 that there is something happening. 7 I think also there is a possibility 8 that this new attitude in Washington, the 9 dominance of elimination of waste and so on, 10 sooner or later the wandering spotlight of public 11 attention may focus on the costs of the drug war 12 and the expedience of what we're doing. If that 13 happens, I think we could expect change. 14 Also it is interesting in the '94 15 crime bill there was a provision for a commission 16 to study violence and the use of drugs in this 17 country. In Congress there was delineation of 18 how the members of the commission would be 19 selected, et cetera, et cetera. 20 Of course, needless to say, Congress 21 in its infinite wisdom failed to provide any 22 money for this undertaking. So nothing was done. 23 But the fact that it is out there and that 24 Congress has at least nodded to the idea that 25 there ought to be a study, that there ought to be PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 48 2 rational thought on the subject, although I'm 3 sure not many of them would agree with my 4 position at the moment, but the proposition that 5 it is debatable, that it is discussable, that it 6 is significant, I think is a positive one. 7 In terms of this debate and in terms 8 of some kind of focus on the problem, it does 9 seem to me that we're moving forward. 10 I think the cities are going to be 11 increasingly important because it is the cities 12 that are suffering the most, and it is the cities 13 that, hopefully, will press the hardest to move 14 toward a health treatment rather than a punitive 15 treatment. 16 I think all of us can gather a great 17 deal -- those of us who feel as I do -- a great 18 deal of relief and pride in the fact that Curt 19 Smoat was reelected as mayor of Baltimore when 20 his position on treating drugs as a health 21 problem was an element in the campaign. 22 Finally, it seems to me that the 23 fundamental problem here is that drugs are one of 24 those defining elements in American society today 25 and what we have to do is, what has to be done, PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 49 2 we have to achieve some paradigm shift. We have 3 to move from a position where government is 4 responsible for the solutions of our society to 5 one where the individual is responsible. And to 6 move this line of appropriate conduct and 7 societal mores away from Congress and into the 8 laps of each one of us. 9 "Ask not what your country can do for 10 you but what you can do for your country," and it 11 is that sense that we have to get back to, I 12 think. What we need now is an openness of mind, 13 a return to altruism, to a concern for each other 14 and, in a sense, though it may sound, sitting 15 here in this city under these circumstances, a 16 bit silly or inappropriate, but I really think we 17 need a return to the pioneer spirit, where we 18 recognize that we are a free people and that we 19 can remain this way only if we help each other. 20 In other words, altruism and the end of an 21 attitude which says "it is not my job." 22 This reform, which has been advocated 23 by others as well as myself and had been 24 advocated by the committee, I think this reform 25 is, as I say, a terribly important one in terms PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 50 2 of the American psychology and the American 3 society. And it is just a particular issue 4 which, if we face it honestly will bring us back 5 to our basic roots, I believe. 6 And I thank you for the opportunity to 7 be with you again. I'm sure I haven't told you 8 anything that you don't already know and better 9 than I, but it has been a delight to be with you 10 and if I could answer a question, I would be both 11 surprised and pleased. 12 MR. DOYLE: Thank you very much, 13 Judge. 14 (Applause) 15 MR. DOYLE: Why don't we go through 16 our panel in the same order. 17 Agatha, do you have a question? 18 MS. MODUGNO: Yes. 19 I have obviously thought that one 20 reason that drug policy has been so focused on 21 crime in the court system because it is easier to 22 obtain funding to jail and kill people than it is 23 to get funds for treatment and education. And I 24 wonder in this world of decriminalization where 25 you have one million people, now prisoners, who PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 51 2 will be roaming the streets as homeless and 3 uncared for, do you really think that this is 4 better than -- I mean to say -- the alternatives 5 are either criminalization or sort of a homeless 6 and itinerant population of incapable people. 7 JUDGE SWEET: Really, I think your 8 premise is right. The war on drugs is a 9 simplistic solution. To penalize, the heavier 10 the penalty, the less use there will be, and this 11 exercise of individual cases will be stamped out. 12 Well, I mean realistically, we know it 13 is not true. It doesn't work. It didn't work in 14 Prohibition, it is not going to work now. It is 15 a simplistic, appealing proposition unless you 16 think about it. 17 I think if the American people think 18 about it they are going to realize that the 19 risks, if there are risks, of these let's say 20 million -- of course, the million are not all 21 involved in drugs; to be generous, say half a 22 million, 600,000, something like that -- involved 23 in drugs, and let's assume they are all released, 24 would there be a change in our society? Frankly, 25 I think not. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 52 2 I think that those drug crimes by and 3 large are the result of the economic factors and 4 so -- and I think if we approach this and said, 5 "We're spending" -- pick your number -- "20 6 billion a year on enforcement, which is not 7 successful, and we're going to take 10 million 8 and apply that toward education and health, I 9 think we would find that this society worked 10 better." 11 It is interesting to me that judges 12 seem to be into this issue. As you know, here in 13 New York, assuming that across the river is part 14 of New York, Jack Weinstein has adopted this 15 view, John Curtin up in the Northern District 16 has, Whit Knapp, Warren Edgington in Connecticut, 17 Louisiana Don Walter, Florida James Payne -- I'm 18 sure you noticed Posner's Circuit Court position 19 with respect to marijuana -- Vaughn Williams in 20 the Northern District of California. 21 Why is this? Now, I think one reason 22 is, obviously, the people that I have mentioned, 23 except for Jim Bray in California, who is a state 24 court judge, are all protected by the 25 Constitution, and therefore are free to speak. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 53 2 But just as you have indicated, those people who 3 have this experience with the punitive 4 legislation and punitive approach have spoken out 5 and have taken the position that it just doesn't 6 work. 7 So, I frankly think our society would 8 be healthier and function better if these reforms 9 were adopted. 10 MR. DOYLE: I am going to now go to 11 the other side of our panel, and I'll point out 12 that Judge Sweet could clearly be kept here all 13 morning by many of us, so I am going to ask each 14 person to limit themselves to one question or 15 perhaps a follow-up. With that, I will pass 16 along first to Steve Kass. 17 MR. KASS: You said that because you 18 saw I had written down three questions. 19 Like so many others, I would like to 20 express a real appreciation for what Judge Sweet 21 has done in this area. 22 I'm interested in 1 1/2 questions, if 23 I may. First is a follow-up to what you just had 24 been talking about, and for me it is one of the 25 more or most dismaying figures I have seen in a PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 54 2 very long time. It is not just a million people 3 in jail, it is that figure we saw in the Times a 4 week ago or two weeks ago, one-third of our 5 African-American men are under the supervision of 6 the criminal justice system. That's utterly 7 astounding. 8 To what degree, I wonder, is that 9 related to this issue. Why would opponents to 10 your call for a new approach have suggested, 11 along with Congressman Rangel, that the current 12 policy is needed to protect the minority 13 community? 14 I wonder what your thoughts are on 15 that and whether you have any idea as to what 16 number of that percentage of that one-third are 17 there because of drugs? 18 JUDGE SWEET: I'm reminded of a speech 19 by Lanie Guinere at the New School at which she 20 said, "Don't ask, don't tell," and what we're 21 talking about now is discrimination, and it is 22 ugly, I think, and rather frightening. 23 The fact is that -- I believe the fact 24 is that the drug laws are discriminatorily 25 enforced because that's easier, it is less PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 55 2 controversial and it plays into the mitt in 3 America of an underclass which is primarily a 4 black underclass. These are not attractive 5 considerations. 6 There is a study recently, an article 7 recently written by Dawn Daye and she concludes 8 based on the statistics which she had available, 9 this is in a 1995 article, that of those who are 10 drug users and arrested for drug possession, 3 11 1/2 times as many blacks as whites are arrested. 12 Now, I think it is part of the 13 simplistic idea that if you have a criminal law 14 and you enforce it, you will eliminate the 15 problem. And it has got a double whammy as far 16 as drugs are concerned, because the easy 17 enforcement is against the blacks. 18 Putting it differently, is there a 19 different rate of usage between blacks and 20 whites? I would suggest that a careful study of 21 the figures would indicate no. Between poor and 22 rich, yes. Blacks and whites, I think not. But 23 that's not the way the arrest statistics read. 24 So that drives you to the conclusion 25 that the coloration of the problem results from PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 56 2 the arrests, not from the inherent usage by the 3 population. And, of course, that also drives you 4 into the issue of, well, why? Why does anybody 5 want to use mind-altering substances? I mean I 6 don't know about -- well, I do know about some of 7 you, but I don't know about all of you. 8 I know that some of you use 9 mind-altering substances on a relatively regular 10 basis, not drugs, but alcohol, and it is part of 11 our society. And, sure, it can be a problem and 12 the rate of addiction for all these mind-altering 13 substances is maybe around 15 percent, the best 14 figure that I have been able to come up with. 15 So why is it that people like Rangel 16 said that there is this terrible risk that the 17 people in the black community will be decimated 18 if this reform is accomplished? I think it is 19 realistic. I think that the reason for usage is 20 loss of hope, it is a feeling of disconnection 21 with the society, it is obtaining a satisfaction 22 from an artificial source rather than from 23 achievement, from job, whatever. 24 And I think that if you address the 25 root causes of the dissolution of the loss of PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 57 2 hope, it is not a black/white thing. It is a 3 question of those who are deprived in the 4 society. 5 Now, of course, what we recognize is 6 that many of -- I saw, I think, in the Times 7 yesterday or today -- that the rate of blacks 8 admitted to colleges now is approximately equal 9 to their rate -- to their percentage of the 10 population, something like 12 percent, something 11 like that. Well, that's a very optimistic 12 statistic, and I think this is not a ghetto 13 problem. It is a human problem, and it is a 14 problem of those who are deprived economically 15 rather than disadvantaged or affected by skin 16 color. That's my view. 17 MR. DOYLE: Dan? 18 MR. MARKEWICH: No. 19 MR. DOYLE: Let me introduce Kathy 20 Rocklen who is the chair of our committee. 21 MR. MARKEWICH: By the way, thank you, 22 Judge. 23 THE CHAIR: I will ask one question 24 that I have asked a number of the witnesses, 25 which is, how do we deal with the perception PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 58 2 about what we tell our children? How do we 3 distinguish between legalization and 4 legitimization? 5 JUDGE SWEET: I think what you do with 6 your children is to develop -- well, first of 7 all, obviously, do no harm to others that's a 8 moral code. On a practical -- well, let me back 9 up. 10 I had kids in the '60s here in this 11 city. I did not know what was going on. I had 12 absolutely no clue. All of my children were 13 experimenting with drugs and so were their 14 contemporaries. And as a parent, perhaps these 15 were the days when I was working for the City, 16 and perhaps I was just oblivious or perhaps I 17 just chose to ignore what I should have seen or 18 whatever. Now, that's a far -- I would suggest 19 that the parent that relies on "Don't do it 20 because it is illegal," is in effect copping out. 21 That parent is just simply saying, "Well, there's 22 a great big power in the sky, and they said it is 23 a bad thing, so don't do it." 24 The reality is that children should be 25 taught that there are dangerous elements in life, PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 59 2 all kinds of things. Don't cross the street 3 against the light, you might get killed. Don't 4 get involved with drugs, it may cause you harm of 5 one kind or another. So it is, it seems to me, 6 that this is no more than teaching children a 7 sensible, appropriate way to behave in life. 8 The moral aspect of it, I think, is 9 that you should be responsible for what happens 10 to you, what you put in your body, what you do. 11 You are responsible, not Congress. And, 12 therefore, the children should be taught that 13 certain things are, you teach them don't drink 14 iodine. So I don't see this as a legitimizing 15 factor. I don't see that there should be any 16 difference in the treatment, the education of 17 children with respect to drugs as there is with 18 respect to alcohol. 19 Parenthetically, we're a lot less 20 honest about that than we should be. So I guess 21 what I am saying is that the morality of it, the 22 legitimacy of it by society is neither here nor 23 there. What is significant is the responsibility 24 of the individual for his own or her own 25 existence. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 60 2 MR. DOYLE: I can see that we also 3 have considerable interest in the audience for 4 questions. What I am going to do, because of the 5 time constraints, since we have a number of other 6 witnesses is take three questions from the 7 audience. 8 Why don't we start with the gentleman 9 in the back. If you could come up and get the 10 Mike, I would appreciate it. 11 A QUESTIONER: Hi, Judge. Yesterday 12 the special narcotics prosecutor was here, Mr. 13 Silbering, I think, and one of the things he said 14 was, if drugs were decriminalized, that any 15 regulation at all would continue the black market 16 situation relative to minors and that there would 17 be no lessening of the congestion in the courts 18 because of that, and that's one of the harms that 19 decriminalizers look to. I was wondering whether 20 you would comment on that. 21 JUDGE SWEET: First of all, he doesn't 22 know any more than I do. And we're both making 23 an estimate. I think the appropriate analogy is 24 alcohol and the enforcement -- well, two things. 25 The appropriate analogy is alcohol and the PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 61 2 enforcement of the distribution of alcohol to 3 minors. 4 The second thing is if you were, if 5 drugs were operating at a market level, it would 6 then eliminate to a very substantial degree the 7 effort to involve the young, to hook the young at 8 the outset, because the money would be out of it. 9 So, sure, there is bound to be some 10 problem because some people will try, kids will 11 try, maybe even, but the dollar motivation would 12 not be there. So I don't think it would be a 13 substantial problem. 14 As I say, I think what drives this, 15 what drives the dealers into the schoolyards is 16 money, and if that were gone, then I think you 17 would have a different result. 18 MR. DOYLE: All right, Eleanor. 19 Eleanor Piel is a member of our committee. 20 MS. PIEL: Your Honor, some months ago 21 you addressed a group at the Fortune Society. 22 The Fortune Society, as you know, is composed of 23 ex-offenders, mostly people of color, who have 24 gone through the criminal justice process, have 25 been incarcerated and come out, many of them PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 62 2 there because of drug problems or whatever, 3 connected with drugs. 4 I was very surprised you were not 5 received warmly in the sense that people did not 6 agree with your ideas. There was this prevailing 7 sense that drugs, that the use of drugs is wrong, 8 therefore, the laws are right even though these 9 were the victims of the laws. 10 Now, have you given any thought, and I 11 would like to be helped on it, since I'm on the 12 board of the Fortune Society, what kind of 13 arguments can you make that would register with 14 regard to the people who are the victims of our 15 drug legislation and enforcement that would be 16 persuasive? Because here are people who should 17 have a voice and should, it seems to me, 18 logically take your position and yet they don't. 19 JUDGE SWEET: I certainly well recall 20 the evening and there were, as you remember, some 21 who understood what I was saying and who agreed 22 with it and argued that the money was the 23 controlling factor in terms of the usage and what 24 caused the problem. So I think there is an 25 element of understanding there. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 63 2 I think perhaps the best way you can 3 tackle it -- drug use is not the problem in our 4 society. It is that we don't care enough about 5 each other. The problem is not using drugs, it 6 is the problem of not having jobs, education, et 7 cetera, et cetera. 8 And I think if those who have fallen 9 into that trap of hopelessness and resort to 10 these artificial means, if they could understand 11 that, what drug use was -- it might just as well 12 have been alcohol, it wouldn't make any 13 difference. In fact, it would be interesting to 14 know, parenthetically -- I don't know how you 15 would find it out -- among the disadvantaged what 16 is the drug of choice. I bet you it is alcohol. 17 And that also came up, that evening. 18 So maybe the only way you can do it is 19 to say, look, don't get fixed on the drug use or 20 on drugs as being the problem. That's not the 21 problem. The problem is that the society has 22 given some people a very hard case to solve and 23 you have to focus on that, not the drugs. 24 That's all I can think of. Whether 25 that would work or not, I don't know. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 64 2 MR. DOYLE: Yes, sir. 3 MR. ADLER: Good morning, Judge. 4 JUDGE SWEET: Hi. 5 MR. ADLER: In reading this report 6 which was very refreshing. The one issue that I 7 took with it, I would like to raise with you if I 8 may. 9 It seemed to depict a judiciary which 10 is fighting a rear guard action valiantly against 11 the excesses of law enforcement, and one of the 12 concerns that I had is that among the greatest 13 injury to our society is the abdication of the 14 judiciary, the federal judiciary and the 15 appellate level in particular, with regard to the 16 historic, almost sacred responsibility to 17 preserve the Constitution for another generation. 18 It seems to me, in some respects, it has joined 19 the war, and I wonder if you would comment on 20 that. 21 JUDGE SWEET: There are a number of 22 articles that had been written on this subject. 23 One title I recall is "The Drug Exception to the 24 Fourth Amendment." Honestly, I have to say that 25 I think the emotional baggage which this issue PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 65 2 carries, and that emotional baggage is that we 3 don't have a problem in this country, what we 4 have is drugs. Drugs are the problem. That's 5 the problem. Nothing else. It is just drugs. 6 The mythology that the drugs 7 themselves are the demons, they are forfeitable, 8 they are evil, all of that, rather than a 9 realistic understanding that they are but one 10 symptom of a condition and a result of a 11 complicated society, et cetera, et cetera. 12 I think that -- well, let me speak for 13 myself. I never challenged it until -- I mean I 14 guess I had been on the bench over 10 years. I 15 never really focused on it myself. So I can't be 16 too critical of judges who have not seen the 17 problem that you point out. 18 A specific which just really boggles 19 my mind is the, obviously, discriminatory penalty 20 differentiation, differential between crack and 21 cocaine. Absolutely irrational. You can't say 22 that that's a rational discrimination. There is 23 no objective evidence that that's a rational 24 discrimination upon which you can base a 300 25 times more punitive penalty. It is just not PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 66 2 there. 3 Some courts have said so, but -- and 4 I'm not sure -- perhaps Eleanor or some of you 5 would know how far it has gone up the chain. I 6 believe at the circuit level the discrimination 7 has been upheld. I declared the mandatory 8 mimimums unconstitutional. Others did as well, 9 basically, for the same sort of reasons. 10 Will the judiciary be tuned in more? 11 I suppose the answer, I guess, you probably 12 detect that I am phumphering because it is a 13 tough problem. It is a tough issue. 14 Look, I would like to say that judges 15 are never affected by public attitudes and 16 conventional wisdom and all of that sort of 17 stuff. But the fact is that they are affected. 18 Now, I think if we had a national 19 commission and we had a real honest, straight-out 20 factual display of the problem on both sides, 21 then I think judges would begin to understand 22 that it is more complicated than they think. I 23 think they tend to shrink and say, well, yes, the 24 bus stop exception, Fourth Amendment. You get on 25 a bus and you're shaken down because you look PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 67 2 like something. Now, is that right? We all know 3 it is not right. And yet that's upheld. 4 I think also there is a sense of, 5 well, it is drugs, and they are drug addicts or 6 drug dealers, drugs, drugs, drugs, you know, so 7 maybe it doesn't matter as much. 8 I think the courts could have been 9 more aggressive in understanding the 10 constitutional implications. That's what I 11 think. 12 MR. DOYLE: Judge, I am going to 13 exercise the chairman's prerogative and ask one 14 question, which is with regard to young people. 15 If we do not make drugs available like 16 alcohol to people, young people, let's say under 17 21, are we not going to have a situation in which 18 there would be a continued market for the drug 19 dealers and the schools and the neighborhoods who 20 would be exploiting that market? And how would 21 that fit into the model that you have in mind? 22 JUDGE SWEET: First of all, John, 23 these days you have got to be talking 18. You 24 have got to look out for that 21, it is worse 25 than you thought. PIROZZI & HILLMAN 212-213-5858 1 jbp Sweet 68 2 MR. DOYLE: I stand corrected. 3 JUDGE SWEET: Whatever the number is. 4 Sure, it is really the same question the 5 gentleman asked a moment ago. Sure, there will 6 be some problem, but if drugs are no longer 7 criminally prohibited except for that group, the 8 money end of it will be gone. It won't be as 9 profitable. 10 There won't be the urge, the dollar 11 reward involved, and so I think what you would 12 find is what you find now, some experimentation 13 by the young and some cooperating institutions, 14 however you set it up, drug stores, whatever the 15 mechanism, who will perhaps violate the law. But 16 I don't see any reason to believe that it would 17 be of a different dimension than, say, the 18 illegal acquisition of alcohol by minors. I just 19 don't see why it should be any different. 20 MR. DOYLE: Thank you very much. 21 JUDGE SWEET: Great pleasure to be 22 with you. 23 (Applause) 24 MR. DOYLE: We have found it essential 25 to take about a 5 to 10-minute break at this PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 69 2 point. So we'll do that now. 3 (Recess) 4 MR. DOYLE: We're going to get 5 started. Would everyone please take their seats. 6 Our next witness is Jay M. Cohen who 7 is First Assistant District Attorney and counsel 8 to Kings County District Attorney. 9 Mr. Cohen. 10 MR. COHEN: Thank you. 11 I'd like to thank the Association of 12 the Bar on behalf of Brooklyn District Attorney 13 Charles J. Hynes for inviting us to participate 14 in this important and timely program. Although 15 you have already spent two full days hearing from 16 some of the country's foremost experts in this 17 area, we have a unique perspective about the new 18 directions which our nation's drug policy should 19 take. 20 Several events make the need for new 21 directions more imperative than ever. 22 The first has been little noticed, 23 even within the criminal justice community, but 24 it is a milestone, nonetheless. The United 25 States Department of Justice reported in PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 70 2 September 1994 that the number of inmates in 3 America's prisons has topped one million for the 4 first time in our history. 5 The second major event was the 6 election of last November, which leaves no doubt 7 that the public or at least a majority of the 8 electorate believes that one million prison 9 inmates is not nearly enough. 10 Some have read that the election 11 results as a mandate to simply do more of the 12 same anticrime policies of the past, but this is 13 not good enough. If we are going to keep 14 building more prisons, as we must, then those of 15 us in government owe it to the taxpayers to 16 insure that these additional cells are put to the 17 best use. 18 And we also owe them a criminal 19 justice system that uses every cost effective and 20 intelligent anticrime strategy at its disposal, 21 in addition to prison, so that we are smart -- as 22 well as tough -- on crime. 23 At the same time, other events should 24 cause anyone who is even considering the 25 abandonment of the prohibition against drugs, to PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 71 2 stop and think seriously about the implications 3 of such an experiment. 4 For example, a recent bill by the 5 Center on Addiction and Substance Abuse at 6 Columbia University found that 32 percent of 7 adolescents surveyed cited drugs as the biggest 8 problem they faced. 9 The next biggest problem -- crime and 10 violence in schools -- was named by 13 percent. 11 Two-thirds of these kids said that they would be 12 forced to make a choice about drugs, and more 13 than half of the older kids said that drugs -- 14 including cocaine and heroin -- were ready 15 available. 16 Moreover, a federal survey released 17 last September found that teen marijuana use had 18 nearly doubled since 1992, as fewer young people 19 said that trying the drug was a "great risk." 20 Experts cited the increasing glamourization of 21 drug use as a major contributor to this problem. 22 It, frankly, escapes me how removing 23 the legal prohibition against drugs will 24 contribute to the "deglamourization" that has 25 proven to be essential to decreasing drug use, PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 72 2 especially by young people. 3 As another of your scheduled speakers, 4 Mathea Falco, says in her landmark book, The 5 Making Of A Drug Free America: 6 "The drug laws play a critically 7 important role in this effort to prevent drug 8 abuse by conveying social values and defining the 9 limits of permissible behavior. Realization 10 would signal a fundamental change in American 11 attitudes, implying tolerance rather than 12 disapproval of drug use. We cannot afford to 13 make this change, and we do not have to. 14 A major shortcoming of the current 15 debate about drugs and drug-related crime -- as 16 exemplified by the focus of these hearings -- is 17 that all too often, it appears that there is only 18 two sides to this debate. 19 The advocates of tougher drug laws and 20 more and bigger prisons and jails for drug 21 offenders on one side, and those who suggest 22 giving up the law enforcement involvement in 23 fighting drugs represents the other. 24 The advocates of even tougher drug 25 laws, including the current majority in Congress, PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 73 2 often cite studies such as one by Princeton 3 Professor John Dilulio, which concludes that "the 4 justice system in the United States is a 5 revolving door for convicted predatory street 6 criminals, who serve little time behind bars." 7 This is one reason, they suggest, that the crime 8 rate has more than tripled since 1960. 9 Yet, as you know, the number of 10 federal and state prison inmates has quadrupled 11 since 1973. New York State has more than tripled 12 its own prison capacity in only 14 years. Will 13 it take 10 times the number of cells to close the 14 revolving door and reduce crime? How about 100 15 times? 16 There aren't enough tax dollars to 17 finance that kind of expansion in a correctional 18 system that already costs the nation more than 40 19 billion a year to operate. 20 These same advocates also argue that 21 many prison inmates are repeat offenders who have 22 previously served sentences of incarceration, and 23 who will likely find themselves behind bars again 24 after their release. 25 That may well be a reason to build PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 74 2 even more prisons, but there is another way to 3 look at those troubling facts. 4 In New York State, drug crimes 5 accounted for 45 percent of all new admissions to 6 prison in 1992, and only 11 percent of new 7 admissions in 1980. 8 More drug offenders now go to state 9 prison each year than violent felony offenders. 10 The United States Justice Department 11 recently completed a study of the federal prison 12 system, and found nearly 13,000 low level drug 13 offenders with no criminal history, constituting 14 17 percent of all sentenced inmates. 15 Is it any wonder that "predatory 16 street criminals" do not serve more time behind 17 bars, and more prisons have not meant enough 18 security? Nonviolent drug offenders are 19 occupying too many cells, and they are returning 20 to their lives of drugs and crime upon their 21 inevitable release, and just as inevitable 22 rearrests for other drug-related crimes. 23 To some, this is cause to make the 24 drug laws even tougher; to others, like this 25 Association's committee on drugs and the law, the PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 75 2 high cost and insufficient return from 3 incarcerating drug offenders is an argument to 4 stop using the criminal laws, at all. 5 The answer, however, is not to 6 surrender to the frightening future of legalized 7 drugs. And what a violent future it would be! 8 For example, Dr. Kenneth Tardiff of Cornell 9 Medical College-New York Hospital, recently 10 studied New York City cocaine related homicide 11 victims, and he concluded: 12 "The drug itself causes people to act 13 violent ... and places themselves in danger." 14 Other studies have found similar 15 results among those who commit murder. And, we 16 all know that most people arrested in New York 17 and throughout the country, for any crimes, test 18 positive for drugs. 19 Clearly, crime and violence related to 20 drugs exists because of the drugs, not because of 21 the law. 22 An April 1995 report of the United 23 States Advisory Board on Child Abuse and Neglect 24 found that more babies and young children die at 25 the hands of their parents than in car accidents, PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 76 2 fires, falls or drownings. Violence in the home 3 is as much a danger to young people as gunfire on 4 the streets. And drug abuse, according to this 5 and other studies, is a major cause of child 6 abuse and neglect. 7 If our goal is to save future 8 generations, how will abandoning the drug war 9 help? An again in Mathea Falco's words: 10 "Legalization would have a chilling 11 effect on prevention efforts since it would shift 12 the balance of social approval toward drug use 13 and away from abstinence. Youngsters are 14 particularly sensitive to what they perceive to 15 be the values of their families, friends and 16 community." 17 Are we ready to embrace a future of 18 even more drug addicted newborns, dysfunctional 19 families, armed dropouts from school and society 20 -- fueled by government sanctioned drug 21 dispensers making drugs more accessible and 22 acceptable -- all in the unjustified hope that 23 some of the violence will stop? 24 We owe our communities, which are 25 struggling to prevent or eradicate the horrors of PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 77 2 drugs and crime, something much better than that. 3 To the people in these communities, 4 especially the poorest, this is not an academic 5 or intellectual exercise. It is a daily battle 6 to keep families together, and they need the law 7 to back them up. 8 In Brooklyn we know we can be "better" 9 and "smarter" on crime without giving up the 10 fight. Instead, we must make sure that prison 11 and jail cells are put to the best use and, at 12 the same time, give kids a way to avoid the 13 tragic cycle of drugs and crime, and give 14 offenders a way to get out of it. 15 Here is how we are accomplishing this 16 ... one cornerstone of our program is DTAP, the 17 drug treatment alternative to prison. DTAP is 18 the first prosecution/run program in the country 19 to divert prison-bound, felony drug offenders to 20 residential drug treatment. Begun in October 21 1990, DTAP targets all drug-addicted defendants 22 arrested in Brooklyn for class B felony drug 23 offenses who have previously been convicted of a 24 nonviolent felony. If convicted, the defendants 25 face mandatory prison sentences under New York PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 78 2 State's Second Felony Offender Law. This 3 encourages them to enter and remain in treatment. 4 The District Attorney's Office 5 carefully screens the pool of candidates, and 6 those with any history of violence are 7 ineligible. Qualified defendants are given the 8 option to defer prosecution and enter one of four 9 available residential, drug treatment programs -- 10 for a period of 15 to 24 months. 11 Those who successfully complete the 12 strenuous program have the drug charges against 13 them dismissed; those who do not are brought back 14 to court by special warrant enforcement team we 15 have established in the District Attorney's 16 Office, and they are prosecuted on the original 17 charges. 18 To prevent relapse and reduce 19 recidivism, we have formed a Business Advisory 20 Council, which helps defendants who complete 21 treatment find employment, job training and 22 housing. 23 The results so far are extremely 24 encouraging and with the help of the State of New 25 York, other prosecutors are implementing similar PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 79 2 programs. 3 As of August 1995, 569 offenders had 4 entered the Brooklyn DTAP program. We have a 5 one-year retention rate of 60 percent, which one 6 expert recently described as "extraordinary," 7 especially when compared with a reported one-year 8 retention rate of 13 percent for other 9 residential programs. 172 offenders have already 10 completed the program and had their charges 11 dismissed. 12 One reason is that we have backed up 13 the threat that those who failed to complete 14 treatment will be arrested, prosecuted and 15 incarcerated. 94 percent of the DTAP dropouts 16 have been returned to the court for prosecution, 17 and most have already been indicted, convicted 18 and sentenced to state prison. 19 Perhaps most important, the rearrest 20 rate for DTAP graduates who have been out on the 21 street for six months or more is only 13 percent, 22 as compared with the 40 percent recidivism rate 23 for comparable New York City felony drug 24 offenders who receive jail or prison sentences. 25 Think about this ... the cost of PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 80 2 residential treatment is 18,000 per individual 3 per year, as compared to 30-35,000 a year for 4 prison. Thus, DTAP has achieved one-third the 5 recidivism of prison at one-half the cost! 6 Moreover, our program has freed 7 hundreds of prison beds for murderers, robbers 8 and rapists, without the construction of a single 9 new cell and without giving drug-addicted sellers 10 a free ride. 11 It is already breaking the cycle of 12 drugs to crime to prison - for nearly 200 13 offenders. They are working or going to school, 14 and many are paying taxes for first time in their 15 lives, instead of draining tax revenues in prison 16 or committing crimes on the street. 17 DTAP demonstrates that we need not -- 18 and should not -- abandon the drug laws to 19 achieve the needed results. In fact, DTAP uses 20 the second felony offender laws to get nonviolent 21 drug addicts to enter and complete the treatment 22 they desperately need. 23 Another cornerstone of our program 24 aims to keep young people from ever needing DTAP. 25 Project Legal Lives brings the PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 81 2 criminal justice system to Brooklyn's elementary 3 school classrooms. Members of the District 4 Attorney's staff, private attorneys, corporate 5 volunteers, judges from Supreme and Criminal 6 Court and teachers work together to teach 7 students about the law and its role in their 8 lives. 9 We spend 10 hours a month throughout 10 the school year, teaching fifth graders about the 11 dangers of drugs and crime, and the horrors of 12 hatred and bias. 13 In the 1994-95 school year, Legal 14 Lives reached more than 10,000 Brooklyn students, 15 and their parents in 330 classrooms. 600 staff 16 members of the District Attorney's Office and 300 17 teachers collaborated on the bi-weekly 18 interactive class work, take-home lessons, a call 19 in radio show on WNYE-FM and mock trials. This 20 year Legal Lives will expand to 400 fifth, sixth 21 and twelfth-grade classrooms throughout New York 22 City and Long Island, teaching more than 15,000 23 students. 24 Legal Lives is being replicated by 25 district attorneys in Los Angeles and San PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 82 2 Francisco, California; Springfield and Boston, 3 Massachusetts; Indianapolis, Indiana; Syracuse, 4 Utica, Lake George and Albany in New York; 5 Atlanta, Nashville and New Orleans. 6 Tough treatment, law-related education 7 and the swiftest, most aggressive and successful 8 prosecution of violent and repeat offenders. 9 This combination represents the first real effort 10 in our county in decades to fight the so-called 11 "drug war" differently. To stop the inefficient 12 and expensive strategy of relying almost 13 exclusively on prison as the sanction for 14 nonviolent drug offenders. But at the same time, 15 not to abandon the children and families of 16 Brooklyn to the personal and social tragedy of 17 legalization. 18 Despite what some might think there is 19 reason for hope. Kings County in 1994 had the 20 largest percentage decrease in murders and 21 robberies of any county in the city. In fact, 22 Brooklyn had 49,000 fewer robberies, burglaries, 23 assaults and other so-called index crimes in 1994 24 than in 1990. A reduction of 31 percent that 25 puts us far ahead of other communities around the PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 83 2 country. 3 We are using the laws more effectively 4 to protect our communities. 5 Also, New York State has taken a small 6 but significant step toward making better use of 7 its prison resources, by reforming our sentencing 8 laws so that violent offenders spend more time 9 behind bars, while nonviolent drug offenders can 10 get treatment instead of incarceration. 11 Let me close with an illustration of 12 what we can, and in my judgment must, accomplish. 13 Almost three years ago, on December 14 17, 1992, a beloved elementary school principal, 15 Patrick Daly, was caught in an afternoon 16 crossfire in the Red Hook Housing Projects. He 17 was looking for an 11-year-old child who had left 18 school after an argument. Mr. Daly took a 9 mm 19 slug to the chest and died on the spot. 20 Three young people, aged 17 and 18, 21 were convicted and have been in prison for this 22 murder for terms of 25 years to life. The three 23 were high school dropouts who were engaged in a 24 shootout about drugs and who turned the common 25 grounds of the Red Hook housing development into PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 84 2 a killing field. All three had been arrested 3 several times before. 4 A police officer who patrolled in Red 5 Hook described life there this way ... "the guy 6 with the automatic is the guy who runs the show. 7 And once they have the gun, they use it. If they 8 are 'dissed' or if someone moves in on their 9 territory, they have to prove themselves by 10 shooting someone." 11 Contrast those observations with one 12 of our DTAP graduates, who was quoted in a New 13 York Times article in April of last year. When 14 he was arrested on drug charges in 1992, just 15 months after a prior drug arrest, he faced 16 several years in prison as a nonviolent, repeat 17 offender. Instead, he chose DTAP and drug 18 treatment. Today he is a paid counselor at a 19 drug treatment center. 20 "I may have been arrested," he told 21 the Times, "but I was really rescued." 22 That is something we can all welcome. 23 Thank you. 24 (Applause) 25 MR. DOYLE: Thank you very much. Why PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 85 2 don't we start at the other side of our panel and 3 work toward the right. Kathy. 4 THE CHAIR: Thank you very much for 5 your remarks. The discussion about DTAP was 6 particularly interesting, and I came in a little 7 bit late on your remarks, but did you express a 8 view on mandatory mimimums, particularly in view 9 of your integration of the mimimums with the DTAP 10 program? 11 MR. COHEN: We supported the efforts 12 in the state legislature and the governor this 13 year to make some changes in the second felony 14 offender laws. On the other hand, as I also 15 indicated, as far as DTAP is concerned, one of 16 the -- one of the reasons for the success of the 17 program is that individuals who would otherwise 18 be extremely reluctant to embrace treatment, to 19 go to Daytop or Phoenix House or some other place 20 upstate for an extremely difficult 15 to 24 21 months in order to turn their lives around, these 22 individuals need a very strong incentives to do 23 that. 24 The law as it exists right now gives 25 them that incentive by saying to them you go, you PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 86 2 satisfactorily complete this program, and we'll 3 drop the charges. But if you don't, if you fail 4 at any step along the way, we're going to 5 prosecute you. Because most of these are 6 relatively simple buy and bust street level drug 7 cases, we have the ability to prosecute you two 8 years down the road and we are going to convict 9 you and we're going to send you to state prison. 10 One of the problems we had with the 11 changes in Albany and in the mandatory second 12 felony offender law is that they wouldn't be 13 accompanied by the treatment availability on the 14 one hand and by the hammer on the other hand, 15 whether it be intensive supervision or close 16 scrutiny to try and encourage, persuade, coerce, 17 if you will, people to stay in treatment. So 18 that's a long answer perhaps to your question. 19 In our view, at least, the idea is not 20 to abandon the law but to use the law in much 21 better ways than it has been used up until now. 22 THE CHAIR: I think that's very 23 sensible. If I could ask one more question. 24 While these programs have obvious 25 benefits, what about the essential black market PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 87 2 that's created by the prohibitionist system? And 3 I'm sure the effects of that are particularly 4 significant in communities such as Brooklyn. 5 MR. COHEN: Certainly nothing that I 6 have seen so far indicates, and I think the judge 7 himself when asked similar questions had a very 8 difficult time answering them. I don't think 9 there is anything that can give us any sense that 10 the kind of black market that creates street 11 violence will not exist if drugs are legalized. 12 The issue has already been raised 13 about the prohibition to minors, and other issues 14 related to the kinds of drugs that are going to 15 be sold, where, how, what. And unless all of 16 those questions can be answered, it strikes me 17 anyway, that we're taking a risk with very little 18 indication of a return. And that's a risk that 19 doesn't have to be taken. 20 MR. MARKEWICH: Perhaps you're too 21 young or at least you look too young -- 22 MR. COHEN: Absolutely not. 23 MR. MARKEWICH: -- to remember, and 24 I'm being largely facetious, the glorious day in 25 our State's history when I was a Manhattan PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 88 2 Assistant District Attorney in the late '60s when 3 the Rockefeller laws went into effect. 4 Seriously, at that time what was being 5 emphasized in the passage of the Rockefeller drug 6 laws was what I guess was then called the DACC 7 and then became the NACC, which was supposed to 8 achieve on a statewide basis, large scale by 9 compulsory treatment, what you are endeavoring to 10 do on a much smaller scale. 11 Now, today we remember the Rockefeller 12 drug laws only for the draconian sentencing that 13 still seems to survive long after the NACC has 14 ceased to function, assuming that it ever really 15 did function, except as a place for the late and, 16 I'm serious, lamented Irving Lang did I have a 17 job, since it all was his idea, I think. But it 18 didn't work, apparently. 19 Number one, if you know or if you have 20 ideas on it, since I assume you must have studied 21 it as part of setting up this program, why did it 22 not work? And if it did not work, why would your 23 program work if implemented on a larger scale to 24 the point where it is a viable alternative to 25 anything except on a small scale? PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 89 2 MR. COHEN: You are right, I am too 3 young to remember that, but not too young to have 4 at least taken a look at some of the things you 5 are talking about. 6 I think part of the answer lies in why 7 the state, I mean after all these years, and I 8 think this sort of almost gets back to the other 9 question about mandatory mimimums as well to put 10 them together. After all these years in which 11 people have talked about second felony offender 12 reform, why suddenly did an admittedly Republican 13 conservative governor and a Republican 14 conservative senate embrace for the first time 15 perhaps not every second felony offender should 16 go to state prison. 17 One of the reasons is the economic 18 reason I alluded to and I think the judge 19 mentioned. It has become extraordinarily 20 expensive to lock everybody up and that the 21 alternatives, the things like DTAP or things like 22 the state claims it is going to do, are much 23 cheaper. But those alternatives would only work 24 and they will only save that kind of money in the 25 -- will only save that kind of money in the long PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 90 2 run if they work, if they are accompanied by the 3 kind of investment and resources and approach 4 that will make them succeed. 5 So I think that a lot of the issues 6 that you have raised, even though we may disagree 7 with the ultimate conclusion of the majority of 8 them, I think a lot of the issues you have raised 9 and others have raised about rethinking our drug 10 policy and the economics of it are going to cause 11 people to embrace these alternatives, not because 12 they like them but because they want them to 13 succeed. 14 If they want them to succeed, if there 15 is a will, then they will. I don't know what 16 reason there was in the 1960s for setting up DACC 17 and NACC and everything like that, but I do know 18 that the reason we have set up this program is 19 that the alternative didn't work and cost too 20 much money. 21 If those are the reasons why programs 22 like ours are going to expand, then maybe they 23 have a better future ahead of them than what 24 happened 30 years ago. 25 MR. MARKEWICH: If I may, I think you PIROZZI & HILLMAN 212-213-5858 1 jbp Cohen 91 2 may have actually indirectly answered part of my 3 question. 4 MR. COHEN: I tried not to answer any 5 of it. 6 MR. MARKEWICH: Maybe not intending 7 to, that is. It occurs to me, at least from a 8 dim historical perspective, that one of the 9 things that may have gone wrong with NACC aside 10 from the fact that there was a good deal of civil 11 libertarian objection to it from the left, is 12 that from the right there was really an 13 unwillingness to put the financial resources into 14 it, and the financial resources continued to 15 expand into prisons and, therefore, NACC never 16 really got off the ground in terms of its ability 17 to treat. 18 MR. COHEN: If you look at the reasons 19 why the governor said he was proposing and 20 supporting this second fel