THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, HOST: Hello, and welcome to BURDEN OF PROOF.
Yesterday in Culver City, California, another chapter was written in the troubled saga of a gifted actor. Robert Downey, Jr. was booked and charged with being under the influence of drugs. Downey was released into the custody of a parole agent, who then took him to a detox center. Yesterday's arrest was the latest in a string of run- ins with the law involving drugs.
And the producers of "Ally McBeal" fired Downey last night. And they haven't decided whether to edit already shot scenes involving the actor into future episodes. And on Monday, Downey is due to appear in court in Palm Springs, California, for previous drug-related charges.
Joining us today in Los Angeles, criminal defense attorney Leonard Levine. Here in Washington: Rob Housman, former assistant director of strategic planning in the White House Office of National Drug Control Policy, and Dr. Peter Cohen, a professor of public health law.
In the back: Andy Woodward (ph), Will-Ann Woodward (ph), and Lacey Josefson (ph).
Lenny, I want to go right to you in California. As defense lawyer in this situation, explain to us now what the dilemma Robert Downey is facing with, what the options are for him, and even what the prosecution can do and what the defense is going to do.
LEONARD LEVINE, FORMER CALIFORNIA STATE PROSECUTOR: Well, sure. First you have to attack the legal side of the case. Was the arrest proper? Was the detention proper in Culver City? Were the tests conducted properly? What's the result of the drug test?
But assuming you fail there, I mean, you are back to square one. You've got to convince a judge in Riverside where the real problem is because he's got felony charges there. This new case is only a misdemeanor. You've got to convince a judge there not to put him in prison, not to put him back in jail.
He is sick. He is not hurting anyone but himself. He is not out there robbing or stealing to support his habit.
He belongs in a live-in drug treatment program where he can't leave until he completes it. And if he goes back, he has got to go back into the drug program again, again and again until he gets the message. But I don't think incarceration is the answer. And, unfortunately, that's going to be a tough sell now to this judge in Riverside after all the relapses.
COSSACK: Lenny, what is the law in California? What kind leeway or options do the prosecutors have, if any, in California, in treating someone who is addict, clearly an addict, and clearly as you describe him a user and as far as we know not a seller of drugs?
LEVINE: As long as he's not selling or committing other crimes to support his habit, they can continue to put him back into rehab. California voters recently passed an initiative that requires in fact first- and second-time drug users, not sellers, to go into rehab in place of incarceration or prison.
So the precedent has been set. And if the judge wants, he can order him into a drug treatment program. And only if he fails to complete the program would incarceration then be an option. It's just a question how many changes he gets before the courts lose their patience.
COSSACK: Now, what about his defense in the Riverside County case, the one that, as you indicate, he's facing felony charges on? We know there have been motions made on his behalf questioning the validity of the search and the validity of the arrest. But how does this new case affect that case?
LEVINE: Well, if he's arguing that he did not consent, that the drugs weren't his or things like that, obviously the new case belies that. If he's out there in an ally in Culver City trying to buy drugs, it is hard to argue that the drugs in his room, for instance, were not his or belonged to someone else.
The only real argument would be that the search was illegal, that did he not consent for them to enter his hotel room in Palm Springs. And if he loses there, I think he's got to go more to the treatment side rather than trying to be acquitted of the actual charges.
COSSACK: And finally, Lenny, it's been a few years since I have practiced out there in California, but as I recall, being...
LEVINE: We miss you.
COSSACK: ... being under the influence, even though it's a misdemeanor, a is mandatory sentence, isn't it?
LEVINE: It's a mandatory 90 days in custody. But that could be served in locked down, live-in rehabilitation center. And I would hope the judge in Riverside and the judge in Culver City might get together and have one sentence that requires him to attend a live-in program. After all, that's a punishment, too. He won't be working. He won't be making a living. And he won't be doing anything but working on his addiction. So hopefully, that will be the result in both Riverside and Culver City.
COSSACK: All right, Dr. Cohen, let me turn to you for a second. This is the ultimately perplexing problem. Robert Downey, Jr., Darryl Strawberry, two obviously talented men who are clearly addicts. Apparently, the rest of us -- I guess society wants to say, just take Robert Downey and shake him and say, "Robert, what is wrong with you? What don't you get about your life? What don't you get about the opportunities that you've been given? What don't you get about your talent? How can you continue to do this?"
It seems so obvious. Talk to us about those kinds of choices and those kinds of thoughts that addicts have. Why doesn't Robert Downey respond to that kind of thinking?
DR. PETER COHEN, PROFESSOR OF PUBLIC HEALTH LAW: I can say this on several levels. He doesn't respond because he's addict. Addicts' thought processes are different.
The American Psychiatric Association defines addiction. And one of the prongs under which the definition hangs is continued behavior knowing that it's going to get you into trouble, and you keep on doing it, continued behavior where the search for drugs and the use of drugs and the thinking of drugs takes up your entire life.
Many people believe that tolerance, having to use more and more, and withdrawal are integral to addiction. Actually, they are not. There are some drugs like cocaine where withdrawal is not a predominant feature. It's these behavioral changes that only addicts can really understand.
But shaking him up is like looking at a diabetic and saying, "Joe, your blood sugar is high. Why don't you do something about it? Why don't you get it down? It's your bad will. You don't have willpower enough to get your blood sugar down." That's not the approach. I think what I just heard in terms getting him back into a treatment facility is very important.
I chaired the Physician's Health Program of the District of Columbia. This is an advocacy and monitoring and treating group for physicians. And we see physicians who are very much like him. They are not selling it. They are not making money. The rational physician doesn't use drugs. And yet these people do.
And when they finally confronted with it and threatened with loss of their license, loss of their profession, they may go away for treatment, which may be anywhere from outpatient therapy to several months as an in-patient. And we have over a 90 percent success rate.
These people return to productive work and are restored. They don't go to jail for doing things that other people might go to jail. I think it is a sickness. It has a molecular basis. We in science are beginning to see actual changes in the brain of people who are addicted where they look differently.
We know that it is partially a matter of your environment, but partially a matter of what you are born with. Your behavior is responsible for taking that first drink for an alcoholic or using the drug for the first time. But something in a few people takes over, and you need help. You need other people to help you. You can't do it by yourself.
COSSACK: I will take a break. When I come back, I want to, Rob, I want to talk to you about this too. But I want to follow up with a question I want you to think about. If that's true, if there are molecular changes, if there's something where you can't help yourself, what then is the responsibility of that person for how they act?
I mean, is this a pass for responsibility? Because, obviously, if someone can't help themselves, we shouldn't hold them criminally responsible. Think about that.
Let's take a break because when we come back, we are going to talk about this. Drugs have been around for centuries. And future historians could look at today's era as a prohibition period.
But can our laws deter addicts? Let's talk some more about that when we come back. Stay with us.
COSSACK: The rap sheet on Robert Downey, Jr. keeps getting longer. After being released from prison last summer, the Hollywood actor has been arrested twice on drug charges. Despite the threat of returning to a prison cell, Downey faces new charges just as his defense is preparing for a trial.
All right, Doctor, before we took a break, I told you one of the things I wanted to ask you about was this notion of addiction as a disease because if someone is sick and can't control themselves, then I would think that the criminal law should not penalize them. So I think there's a slippery slope -- and I hate those slippery slope arguments -- about starting to call addiction a disease.
COHEN: This is a very good question. And everybody in addiction medicine and to an extent in the law dealing with addiction deals with it.
Let me answer it in two ways. From a judicial point of view, there's a very important case 40-odd years ago, Powell versus Texas. It was public drunkenness. And he challenged the ability, the constitutionality of imprisoning him, and he lost.
One of the interchanges between -- that was brought into the court, was where Mr. Powell said, "I don't have to take that first drink in the morning. And I know if I do, the second and the third and the fourth will follow automatically." In essence, he admitted he had some control over the first drink and lost control over the subsequent ones.
COHEN: So the purpose of the law and the medicine should be not to punish the third and fourth drink, or drug use, but the first one.
COSSACK: But the first one. COHEN: The other example is one out of medicine. If you have somebody who is driving a car, has his first epileptic fit, and kills a load of people, he doesn't have the intent. He's now in treatment for several years and decides on his own to stop treating it, and suddenly he has another convulsion, he is going to be held liable.
COSSACK: Because he knew.
COHEN: Because he knew.
COSSACK: All right, Rob, you're formerly a physician in which you were formulating drug policy in the United States. This is a unique situation in which it's a very difficult situation.
Here you have an individual -- this guy happens to be tremendously talented, but there's other people out there who are just addicts. The question is, should these people come within the aegis of the criminal law at all?
ROB HOUSMAN, FORMER OFFICIAL, WHITE HOUSE OFFICE OF NATIONAL DRUG CONTROL POLICY: Well, look, Roger, if you follow the law of averages, sooner or later they're not just going to hurt themselves, they're going to hurt someone around them. They're going to take a gun. They're going to be engaged in a narcotics-related car accident and kill a family. They're going to be engaged in a workplace drug accident and kill another person's father, mother.
And they're going to have tragic consequences. In fact, every year drugs cost our society 52,000 drug-related deaths and $110 billion in additional social costs. So this is not a victimless situation. We're all victims of drug use.
What we then have to look at, though, is how do we respond? And I think actually California is being pretty responsible here. This guy is a nonviolent, drug addicted offender. There's very little that is going to be achieved by throwing him in jail and locking him away for six or 10 years, and then when he comes out he will be back in the exact same terrible cycle.
A far better solution -- and I think this is where California is headed with him -- is to put him right back into treatment because we know that court-supervised drug treatment is one of the most effective ways of helping people break their addiction. The other thing is this shouldn't be shocking. You had it right when you said there are other people out there. The fact is, an addicted individual is likely to go through drug treatment an average of three times before they are capable of breaking their addiction.
And when you are talking about drugs like methamphetamines or heroin where the addictive capabilities of the drug are higher, six, eight, 10 times is not unheard of. But when you get right back down to it, our response to a non-addicted drug offender ought to be to get him back into treatment, because that's where we can break the cycle.
In fact, when you look at our policy, this is where we are headed. During the Clinton administration, under General McCaffrey's leadership, we went from having about 12 drug courts, which provide supervised treatment in lieu of incarceration, to having roughly 800 today. We ought to be making that shift even more. And this is a perfect example of why we are doing that.
COSSACK: Lenny, you are on the front lines of this as defense lawyer. I also know that you were a prosecutor.
The notion -- we heard both of these gentlemen suggest that addicts should not be put in prison. Is the next step decriminalization?
LEVINE: Yes, I think so. I think -- first of all, the war on drugs has failed. We all know that. We all saw the movie "Traffic," which quite clearly represented I think -- and fairly on both sides -- the problem.
Not all drugs, but I think eventually -- eventually -- marijuana and perhaps cocaine will be drug that will be decriminalized. First of all, I never in 30 years seen anyone hurt by a driver allegedly under the influence of cocaine. I've just never seen it. It's not that kind of drug.
I remember in the '70s, Roger, you couldn't leave a courtroom at recess without everyone lighting up and smoking. Now, no one smokes, not even outside. Why? Because it hurts them.
I remember in the '70s, frankly, you couldn't go down to a law office, a suite of offices, without someone coming out and saying, "Come on in and do a line of cocaine." No one does that now. No one I know. Why? Because it is bad for you. It is addicting. And it kills. And it can ruin your life.
If you put all the money we have into law enforcement trying to stop cocaine from coming into the country and put it into advertising, rehabilitation programs, the way we've done it with tobacco, I think you would have the same results. Some would use. Some would be addicted, of course. But I think eventually people would understand, don't do it because it ruins your life and it is bad for you.
And I think eventually it will come to that. But it is going to take some political will and willpower.
Look, we can't even in Washington get people to agree that if a person has a pound of powdered cocaine in Beverly Hills, he faces five years in prison. If he has a pound of crack cocaine in the inner city, he faces 20 years or life in prison. All jurists agree that's wrong on both sides of the spectrum.
We're more conservative. Why won't Washington change that law? Because it's not politically popular. No one wants to be called soft on crime. So Congress won't do it. We need someone with guts. And we don't have it, Roger, except perhaps maybe you.
COSSACK: All right, let's take a break. Rob, I see you ready to jump out of your chair when he says the war on drugs has failed. Lenny, I think I might have to get you a lawyer. But I'm not sure the statute of limitations has run.
When we come back, let's talk some more about this. Stay with us.
COSSACK: Robert Downey, Jr. has been arrested after driving a car under the influence of drugs, and again after wandering into the bedroom of a neighbor's child. Now despite numerous arrests, drug rehab treatment, and a year in prison, the gifted actor continues to have brushes with the law.
All right, Rob, when Lenny was saying that the war on drugs has been a failure, I thought you were coming out of that chair. I want to hear your perspective on the war on drugs because obviously it's under a lot of criticism.
HOUSMAN: Roger, it is the biggest myth you've ever heard. Right now, we have reduced youth drug use by 21 percent over the last two years. Since 1979, overall drug use in the United States has been cut in half. Drug-related murders are at their lowest point in over 10 years. Workplace drug use is at its lowest point in over 10 years.
If you said we're going to cut any other problem among youth by 21 percent and did it, people would be heralding you for your success. We've had tremendous success.
We've had success internationally. We've cut Peru and Bolivian coca production by over 50 percent.
COSSACK: Let me just be devil's advocate for a second. I am going to agree with all of those statistics that you've just given me. But what price have we paid in American culture to do all those things?
I mean, prison sentences. We have the highest amount of people in prison in America. The vast majority are in for some sort of drug- related crime. It breaks up families. I mean, we have paid a tremendous price for this, for whatever victories we have gotten. And some would say they are victories.
HOUSMAN: Well, here again, take a look at who is really in prison. This is another myth I would present to you.
In the federal system in 1999, the most recent year we have statistics available, there were 39 people in prison for -- sentenced and in prison -- so they have pled down already. They were sentenced in prison, 39 of them only in the federal system for under 5,000 grams of marijuana. You couldn't spoke 5,000 grams of marijuana in a month if you tried to get high every minute of your life. So these are not small-scale drug people who are in jail.
LEVINE: What about the state system?
HOUSMAN: If I may continue. At the state level, we found that over 70 percent of the people who are in prison for drug-related offenses are in there for trafficking, and over a quarter of the people who are in there for drug-related offenses are actually violent offenders.
So the people who are in jail are by and large in jail because they robbed somebody. They burglarized a home. They prostituted themselves. They committed murder. These are in general the sort of people who should be in jail.
And if you look at how we are dealing with Mr. Downey, we are sending him back to treatment, not to jail. And that's the sort of thing.
If I can say one other thing about this, this notion legalization is going to make all the harms go away is nonsense. It's pure nonsense. With more people, with more drugs, more kids will use drugs. And more people will become drug addicted. I mean, this isn't a product you walk away from.
COSSACK: All right, Rob, let me just interrupt you a second because I want to get Peter a second. Doc, why is it that with all the medical treatment that we have for addiction and the medical things and the progress we've made, why isn't someone able to help Robert Downey, Jr. medically?
COHEN: Well, there are two things to look at. If you had somebody with very severe hypertension or arthritis or diabetes and all the treatments in the world couldn't help him, you wouldn't blame him. And you wouldn't blame the medical establishment. Some people are sicker than others.
And addiction is a relapsing disease that isn't easy to treat. I mean, he personifies it. Darryl Strawberry personifies it.
Many of the physicians that come before my committee personified it. Most of them are treatable and succeed.
COSSACK: Is the money we spending though...
COHEN: But that's the other matter. See, I think we are losing the war on drugs, not from the perspective that these two gentlemen were talking about, but medically. We have the knowledge to treat a lot of people. Treatment won't work with everybody, but we can do it.
We have hundreds of thousands of heroin addicts begging to be treated. Right now, the only pharmacological treatment is methadone. Some politicians don't like it because they say it is replaces one drug with another. Well, to me that's like saying I don't like to treat diabetes within insulin because you require drugs. But all it takes is money and political will. And people who are crying for help should get it.
COSSACK: All right, you get the last word. That's all the time we have for today. Thanks to our wonderful guests, and thank you for watching.
Join us again tomorrow for another edition of BURDEN OF PROOF. I will see you then.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com