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Should Robert Downey Jr. Be Sent to Prison?

Aired December 27, 2000 - 7:30 p.m. ET


MARY MATALIN, CO-HOST: Tonight actor Robert Downey Jr. arraigned on felony drug charges. If convicted, should he be sent to prison, to drug treatment, or should he just be left alone?

ANNOUNCER: Live from Washington, CROSSFIRE.

On the left, Bill Press. On the right, Mary Matalin.

In the CROSSFIRE, in Miami, Florida criminal defense attorney Roy Black; and in West Palm Beach, Florida, Jeanine Pirro, district attorney of Westchester County, New York.

MATALIN: Good evening, and welcome to CROSSFIRE.

Robert Downey Jr. the award-winning film star and "Ally McBeal" regular, has been involved in about as many real-life courtroom dramas as Hollywood scenes. Since 1996, his personal and court-ordered quest to clean up his drug problem has been repeatedly dashed.

Today he pled not guilty to felony possession of cocaine and valium from a Thanksgiving holiday bust in Palm Springs, California. He faces a maximum sentence of four years, eight months. Downey's high-profile antics and revolving-door incarceration and treatment have put the drug debate back on the front pages and in the CROSSFIRE.

What's the most effective way to help drug addicts: treatment, prison, both or neither? Is drug addiction a personal or societal problem? Tonight, the drug and culture debate with special holiday co-host professor Robert Reich.

Welcome back, professor.

And, Roy Black, let me start with you, because I find this academic debate, even TV debate on treatment versus incarceration just that: academic. I like to go to the people who are actually in that situation, starting with the subject of our show tonight, Robert Downey Jr. He said on an interview not long ago on NBC that the only way -- yes, it's the only way I could have put it behind me for once and all, referencing his prison stay. And indeed, when he relapsed, in every case that he has relapsed, it was when he was out with no parole, no accountability, no threat, no fear of anything. That's when he relapsed. This is the a kind of addict that needs incarceration. ROY BLACK, CRIMINAL DEFENSE ATTORNEY: Well, you know, why don't we take people with terminal cancer and put them in prison as well? I mean, Downey unquestionably while he's in prison is not going to be hurting himself. But what kind of a society do we have when we take people who are sick, like he is -- I mean, he has no self-control, he's self-destructive. So what do we do? We take him away from his family, take him away from any job he has and put him in prison. I find that to be no answer whatsoever.

I mean, we spent $50 billion a year on this drug war for what? Putting people like Downey in jail? That is going make our society a better place? I certainly don't think so.

MATALIN: Well, Mr. Black, it may make him a better person. There's a D.C. drug court study here...

BLACK: Mary, come on...

MATALIN: Excuse me...

BLACK: There's not a single person...

MATALIN: Let me -- Mr. Black, let me give this statistic, then you can respond, OK? We have a lot of drug problems here in our nation's capital, as sad as that may be. But because of that, there's been a lot of studies. And the D.C. drug court has found that those who receive, defendants who receive sanctions, are three times less likely to be repeat defenders. Those are just the fact.

So how can we help him? We can help him by putting in place a deterrent in addition to treatment. Some people cannot be treated without the fear of that deterrence.


MATALIN: Just a minute.

BLACK: There's no question that there's some people who will not listen to common sense, I agree with you. But the United States now has 2 million people in prison. We are addicted to prisons. We have 25 percent of all the prison -- prisoners in the entire world. We have gone totally insane with this. We'd be far better off with people like Robert Downey to put him in a treatment program to try to solve his problem than throw him in jail and release him a couple of years from now.

PIRRO: But you know what, Mary, I think that...

ROBERT REICH, GUEST CO-HOST: Miss Pirro -- Miss Pirro, let me break in here if I may.

Miss Pirro, this is a very sad case, obviously. This is a very talented actor. But he is just the tip of an iceberg. We've got enormous numbers of people going to prison, and I want to know from you why we are doing it? Just give me a summary. Are we protecting the Robert Downey Jr.s or the people who are addicts from themselves, are we protecting society from them, what's the rationale? Just very clearly, simply, you are a district attorney, let's have it.

PIRRO: OK, I think that Mary hit the nail on the head when she talked about whether or not this was a personal or a societal problem.

The problem in this country today is that drugs don't occur in a vacuum. They don't just drop out of the sky. What we have here are people who are addicts, who are sellers, who have made the decision that they don't want to rehabilitate themselves. And what we need now are strong drug laws. And I think at some point we need to refocus on the law-abiding citizens who deserve to live in neighborhoods that are not destroyed by drugs and who deserve to live in a society where they don't have to worry about drug addicts...

REICH: Ms. Pirro, if I may, again, let me just specify...

PIRRO: Now, Robert, you asked the question, let me finish.

REICH: I'm sorry.

PIRRO: You asked me the question, let me finish. The bottom line here is that Robert Downey Jr. has had every opportunity to rehabilitate himself. He had every program, he has insurance, he has friends, he has a support system. It is time that the criminal justice system exerts the leverage that we need to mandate that those addicts who are in our society today who are part of the drug problem, part of the drug culture, are made accountable immediately.

REICH: Ms. Pirro, you have made your case. I insist on equal time here. Let me just ask you a question, because he has been in prison before. He's a recidivist. He's been in prison with Charles Manson, he's been in prison with Sirhan Sirhan. I mean, what are we going to -- are we going to just warehouse these people? Is that your idea? Is that the way we are going to conquer this problem? Why not treatment for this man?

PIRRO: No -- well, I agree with you. And what the drug courts around this country are proving, and I think Mary tried to make reference to this, is the fact that there is a combined treatment with the leverage of criminal incarceration immediately upon a failure to comply with program requirements.

Prosecutors across this nation are interested in rehabilitation. I mean that is one of the purposes of sentencing. One of the purposes of sentencing is to deterrence and rehabilitation. We can do both, but if we allow drug addicts to decide how they're going to rehabilitate themselves, then they will not do so. Ninety-one percent of those,,,

REICH: We are losing the drug war, Miss Pirro. We are losing the war.

PIRRO: No, in fact, the crack epidemic...

REICH: And you are in the front lines.

PIRRO: The crack epidemic of the late '80s has reduced itself somewhat, and what we are seeing are model block programs in New York City, where when we attack the drug violence and the drug culture, then crime goes down in those areas.

Let's not make believe you can buy drugs at Saks Fifth Avenue over the counter. There is a whole drug cartel that is importing drugs into this society. There are stash houses, drugs are being cut. We're talking about major drug crimes. Those who are addicts...

REICH: Why do we have...

PIRRO: ... deserve rehabilitation. Those who are drug dealers deserve to be incarcerated. And if you're an addict and you can't rehabilitate yourself, then we need at the back end jail time to make sure that you comply with the treatment requirements.

BLACK: Yes, but this is the typical kind of argument prosecutors make. The problem with prohibition is when you make something a crime you destroy neighborhoods. Remember when we had prohibition against alcohol? We had all kinds of gangsters involved, we had people getting killed. When was the last time somebody got killed over a six back of beer. It's the fact that it's illegal that destroys neighborhoods, that destroys lives.

PIRRO: You know what?

BLACK: And by the way, the last statistics I saw in California, there were five times more African-Americans in prison than there were in California in that state, and that's an outrageous statistic.

PIRRO: There is no question that it doesn't matter who the offender is, whether he's a celebrity, whether he's a poor person. He is entitled to rehabilitation and treatment with the leverage -- look, Robert Downey Jr. is a classic example of a guy who doesn't want to be rehabilitated.

When I sat as a narcotics judge, one of the questions I asked a young offender in front of me for the first time was whether or not he wanted rehabilitation or whether he wanted to go to jail. His choice was jail, because he knew that rehab was tougher. He knew that rehab...

BLACK: Jeanine, why don't we put bars on the Betty Ford Clinic. What about all the people using alcohol...

PIRRO: You know what?

BLACK: ... addicted to nicotine, addicted to prescription drugs?

PIRRO: We as a society...

BLACK: Why don't we use the criminal law to get them to stop?

PIRRO: Roy, as a society...

BLACK: Let's get life imprisonment for alcohol abusers. PIRRO: As a society, we have said that the use and possession of narcotics is illegal. And until that is changed, we've got to recognize that there is a whole host of problems that spin off of drugs, whether it's people who commit crimes who might never have committed them before because they're on drugs or because of the drug turf wars or because of the innocent children who are shot because there are guns...

BLACK: Jeanine, it's a health problem...


MATALIN: OK, Mr. Black -- just a second. Mr. Black, let me give you some statistics there off of Miss Pirro's fact, because your notion that personal freedom, we're not hurting anybody else, let's go get high, sounds like a college debate. It sounds like what we used to do, stay up and watch "Saturday Night Live" and get high.

BLACK: No, that happens to be reality.

MATALIN: That is not the case. A third to 50 percent of the crimes committed in this country, everything from trafficking to -- through burglary to murder are committed by people under the influence of drugs. That's not just hurting themselves. That is hurting us, and it costs the society a lot of money. You can't call this some personal freedom issue. That's simply not the case.

BLACK: Mary, I agree with you 100 percent. And you know how to stop that? By taking away the illegality of drugs. Once you do that, the drug prices go way down. By the way, when Bayer started selling heroin 100 years ago, it was the same price as aspirin. And once you take away the illegal factor of it, you take away the enormous profits by drug organizations, you take the criminals out of it, you have it regulated, you save all of those kind of problems. So if that's really your concern with it...


BLACK: ... that can be solved.

MATALIN: No, this just the most ridiculous of arguments. Under the influence of drugs, it alters our behavior, OK? If you're not going to buy that people are committing murder because they're on drugs...

BLACK: Mary, how many more people commit murder under alcohol than drugs?

MATALIN: Excuse me, let me finish the question.

Have you ever seen a crack baby? Have you ever seen a neglected or an abandoned family because the mother is on drugs?

BLACK: Have you ever seen the fetal alcohol syndrome? Have you ever seen the fetal alcohol syndrome...

MATALIN: We're not talking about fetal alcohol syndrome.

BLACK: ... which causes mental retardation? No, we could do the same thing with everything.

MATALIN: And your point? Your connection? No, you're saying it hurts no one but the user. I'm saying the entire society from those who are victims of crime to the children of drug users are affected and that affects us all.


REICH: May I interject here?


PIRRO: Mary, may I say something? What about the fact that Robert Downey was in possession of a handgun? What about the fact that even though he's only hurting himself, as Roy Black would suggest, he ends up in someone's house in a child's bed? What about the fact that he is...


BLACK: They punished him for that. Sent him to jail for the handgun. Sent him to jail for going to someone's house. He's now charged possessing cocaine, possession of marijuana and having Valium in his system.

REICH: Hello, Miss Pirro, Miss Pirro, this is -- see, when you get two attorneys on television, and you can't get in edgewise, now look, I just have a question...


BLACK: A presidential debates.

REICH: Wait a minute. Wait, wait, wait, wait. I want to just read you some statistics here. Now, Mary read you some. In 1980, I don't know if we have chart of this. If we have a chart, let's put it up. In 1980, there were 41,648 drug offenders in prison. Now we have 458,131.

That's an 11-fold increase and a lot of these drug-related offenses, they're not hurting anybody. They are just possession -- a lot of them, not all of them. I just want to ask you, Miss Pirro, if it's just possession of a drug; if it's just being under the influence, like alcohol; why should somebody go to prison?

Now, I agree with you. If we're talking about drug trafficking in dangerous drugs, sure do something about it. Maybe try to deter it, but how about simple possession?

PIRRO: All right, let's make sure -- we're talking about dangerous drugs here. We're talking about cocaine and heroin, all right. So let's not make believe that we're not talking about a controlled substance. Number one, of the 20,000 incarcerated defendants for drugs in New York state, less than .06 percent are in prison for possession alone. For less than an a, or b felony, what does that mean? What that means is that those individuals who are in prison are primarily in prison for possessing four ounces of cocaine.

That's an A-1 felony. You can cut that into 8,500 glacine envelopes. If you think about it, that's 8,500 sales at $100,000, and we're selling -- we're seeing these drugs sold on school grounds. We're seeing people under influence of drugs committing all kinds of crimes.

It's an addiction. It should be treated. But if someone will not accept treatment, then we need the hammer of the criminal justice system to make sure they get it, because otherwise, we're all at risk -- you, me, and our children.

MATALIN: OK, friends, thank you so much. The drug war obviously is raging on, and so is the debate. We'ill continue it on next segment when we return on CROSSFIRE. During our break, log on to and tell us if you think our subject matter today, Robert Downey Jr. should be sent to prison, in drug treatment, or be left alone. We'll have the results later in the show. Stay with us



ROBERT DOWNEY JR., ACTOR: It's like I have a shotgun in my mouth, and I've got my finger on the trigger and I like the taste of the gun metal.


REICH: That was Robert Downey Jr. Welcome back to CROSSFIRE. I'm Robert Reich. We've been talking about the consequences of arresting and basically incarcerating a lot of people, huge numbers of people in this country, because of possession of illegal drugs.

Our guests tonight have been Jeanine Ferris Pirro, district attorney for Westchester County, New York, joining us from Palm Beach. Also, Roy Black, a criminal defense attorney also from the land of the butterfly ballots.

Both of our guests are wonderful guests very vocal about the issue, and Mary and I can hardly get a word in edgewise, but that's fine. But I have a question for you, Miss Pirro. You mentioned just before the break, you said, we've been talking about hard drugs. And we have been talking about hard drugs. We've been talking about cocaine.

What about marijuana? Should marijuana be legalized? I mean, we've had -- we even have a president of the United States, right now, who said that he did not inhale, but I'll tell you something -- I will not testify to this, but 32 years ago I was with him and it looked like he was inhaling. Now, should we -- so what do we do? Should we legalize?

PIRRO: Well...


REICH: Should we legalize?

PIRRO: ... in many states marijuana has been decriminalized as it is in New York where it is essentially a violation. It's not really considered a crime. It is only when you possess enough marijuana that you can be presumed to be intending to sell that marijuana that you start talking about incarceration.

But, the bottom line is this. I think prosecutors across this country agree that rehabilitation for those addicts, those people who are simply users is the most appropriate and effective way to deal with the problem. The issue, however, is just as you said in your segment as you showed Robert Downey saying, if he likes the taste of the metal, if he likes the drugs, he has no incentive to stop it, then he'll be in constant state where he doesn't care about it. We've got to protect the rest of society.

REICH: Well, again the question is what we are protecting the rest of society from? Proposition 36 in California, just approved by California voters, mandates drug treatment not jail for possession or being under the influence first time offenders. Do you agree?

PIRRO: Well, I think that drug treatment is preferable to jail for first time offenders. I don't think anyone would really disagree with that if you are talking about someone who is possessing for his or her own use.

But what you haven't mentioned in that proposition is the fact that 91 percent of of those who are successful in rehab are successful only because they fear jail time. And that's why drug courts have been popping up all over this country, because we can monitor these defendants; we can make sure that they have frequent urinalysis. They have treatment, that there is a discussion with the court. This is something that we are handling much better than we have in the past.

MATALIN: Mr. Black, let me ask you about that, because, your views, as suggested in the preinterview, are that you're fine with legalizing marijuana. I just want to ask you about marijuana today. It's far different from what it was when we were in college, and studies continually show that kids today from the ages 12 to 17, who would have greater access to marijuana would it be decriminalized or legalized are 85 -- 85 times more likely to use cocaine. These kids don't have a chance.

BLACK: Well, you know, Mary, the problem with living in a democracy is you can make choices, and you can make very poor choices. The problem that we have had and we listened to politicians running for reelection every year on this, is we throw more and more money at this drug problem.

We are now spending $50 billion that's b -- with a "b" billion dollars a year. We've been doing it for 80 years and we're still in same position we were when we started. Don't you think it's time to change? We ought to spend a small fraction of that money on trying to educate people -- look how much we reduced cigarette smoking by advertisements and education. We didn't need to put people in jail to do that, and people like Downey, we'll put them in programs. If he has to be in programs for the rest of his life, it's far better than sending this man to prison.

PIRRO: You know, but Roy, you act like this is happening in a vacuum, and not affecting anyone other than Roy -- Robert Downey. The problem is that we spend a fortune in this country on drug-related offenses, emergency-room treatment of individuals who are affected by drugs, the children who are in foster care because their parents are drug abusers. Let's not make believe that this is just Robert Downey in his own little happy world and it doesn't impact on the rest of us.

BLACK: But, Jeanine, this happens to all kinds of society problems, people make many poor chances. Let's look at Robert Downey. He has 4 grams of cocaine, and he has some Valium in his hotel room. He wasn't threatening anybody. The only person he was hurting was himself. I agree that we ought to try to save him from himself, but let's not get at this fantasy that he was somehow terrorizing Palm Springs.

PIRRO: But what makes you think that he isn't a financier of drug dealers, who are selling drugs to our children on school grounds, and...

BLACK: Yes, I saw him hanging around the high school last week.

PIRRO: Have you gone into the neighborhoods of people who are afraid to come out of their buildings, because there is so much drug dealing going on, that people children are afraid to walk to school.


BLACK: I was an assistant public defender for five years.

PIRRO: It's the same world.

BLACK: And in those kind of tenements, and I talked to people and I know that the worst thing that happens is breaking up these families by putting the father in jail.

PIRRO: The worst thing that happens is when you have a whole neighborhood that is afraid because drug dealers, with guns and turf wars are involved in their neighborhoods, and they can't come outside; they don't want to send their children to school. I work with the...


PIRRO: ... because they want to live in an open and honest society where they are not damaged, where they are not harmed.

REICH: Ms, Pirro, if I may again, there is something else that we haven't talked about that worries me about all of this criminalization, of -- again, the possession, the being under the influence, because there are no complaining witnesses.

When it's mere possession -- again, we're not talking about harmful behavior, we're talking about mere possession. There are no complaining witnesses. Don't you get into civil liberties problems because it means that in order to prosecute, you've got other to have wiretaps, you've got to have forfeitures, you've got to have government doing all kinds of things that government, once it starts doing, you don't want to live in that kind of police state; isn't that a problem?

PIRRO: You know, unfortunately, the drug cartels and the drug organizations in this country are very sophisticated, and, through narcotics initiatives, we are, through some sophisticated law enforcement efforts, we are able to identify where the drugs, the stash houses, the guns, and the violence is located, and I think that if you say that, just because you possess it, it's not a problem -- if you possess an unloaded handgun, maybe that is not a problem either, but it is against the law.

And that is what we, as a society, are saying; that we have laws that have to be followed.

MATALIN: All right. Thank you Jeanine Pirro. Thank you Roy Black. Thank you for coming out from your warm haven down there. We wish we were there with you, but go have a pina colada for the professor.

BLACK: We're studying our ballots.

MATALIN: It's a fight that will never end. Robert Reich and I will be right back right after this quick moment for our closing comments and the results of the on-line poll. Stay with us.


MATALIN: Earlier in our online poll, we asked about Robert Downey Jr. 36 percent of you said he should be sent to prison, 37 percent of you said he should be in drug treatment, and 28 percent of you said he should be left alone. A big libertarian contingent out there.

Listen, Professor Reich, what I don't get is, you liberals say everything is society's problem. Everything has a cost to society, except when it comes to drugs. Just leave these people alone like they are hanging out in a college dorm. They are hurting other people, they are hurting their families, and they are costing us money.

REICH: I don't know what happened to the libertarian instinct in Republicans in you. I mean, the fact of the matter, is it takes somebody like Robert F. Downey or Darryl Strawberry of the Yankees -- the former Yankees player, to focus public attention on the fact that we are warehousing huge numbers of these people. We're not winning the war on drugs. They have not harmed anybody else. They are doing it to themselves, and we need treatment, we don't need prisons for a lot of these people. Many of them, unfortunately, are African-Americans, and I think it's a national disgrace, Mary.

From the libertarian left, this is Robert Reich. Good night.

MATALIN: From the right, that sets role models for our children, I'm Mary Matalin. Join us again tomorrow night for more CROSSFIRE.



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