CONSTITUTION: DOWNEY CASE SHOWS DRUG WAR'S EXCESSES

I hope that when Hollywood gets around to making "The Robert Downey
Story," Downey gets to play himself. He is one of the few screen
actors around who has the talent, not to mention the experience, to
convince the American people that a drug addict is a sick person and
not a criminal. But in the movie, as in life itself, Downey will be a
jailbird.

At least, that's the way it now looks. Having been busted on drug
charges last week, he was jailed overnight and is due back in court
Dec. 27 for a hearing. The actor was allegedly found in a conked out
state, and police discovered cocaine and methamphetamines in his
hotel room. He has been down this road before.

It was only last August that Downey got out of Corcoran State Prison.
He had served a bit more than a year of an original three-year
sentence. Corcoran is where Charles Manson and Sirhan Sirhan, killers
both, are held. It is hard, hard time.

With Manson and Sirhan we can all name their victims. But who is
Downey's? It has to be himself. He has committed no violent crime,
robbed no bank nor offered me a cell phone service that works only
sporadically. The Palm Springs bust is illustrative. The Merv Griffin
Resort Hotel and Givenchy Spa received no complaints and was
blissfully unaware that in one of its rooms, a famous actor was
sabotaging his career.

To say that Downey has a problem is to understate matters by a
considerable degree. He has lost his wife, his child and --- it may
turn out --- his career. He has put a fortune up his nose and, like
any addict, lied to friends and loved ones. I pity the man.

But I do not fear him. That is to say, I do not fear him any more
than I do an alcoholic. I would not want either driving a car while
zonked. But neither one is a criminal just on account of their
addiction. If they steal to get drugs (or if they drive drunk), then
they have committed a crime. Even then, though, what they need is
treatment, not mere incarceration.

Downey's is the perfect face of the war on drugs. Just as his real
victim is himself, so we have made war on ourselves. The lust for
arrests has caused police agencies to throw the Constitution to the
wind and, frequently, stop people on the probable cause of being
black or Hispanic. On the New Jersey Turnpike, at least eight out of
10 searches made by state troopers were of minorities. Seventy
percent of the time, they came up empty-handed, leaving a residue of
bitterness and the rest of us no safer.

Until a recent Supreme Court ruling, some police departments
established roadblocks designed to catch people with drugs. Applying
common sense, the court said that a sobriety checkpoint was designed
to protect the public from drunken drivers, but possession of drugs
was a different matter. That's a law enforcement issue and, as the
Constitution requires, a warrant is necessary. Searching every other
car is hardly what you would call "probable cause."

Prisoners convicted for drug-related crimes clog the jails. As with
stops on the Jersey Turnpike, the effect is racially
disproportionate. Blacks comprise about 12 percent of the population
but account for 62 percent of drug offenders in state prisons. All
together, federal prisons hold almost 240,000 persons convicted of
drug - not violent - crimes, and the states hold about 200,000
more. This is an expensive proposition.

Downey, who has been in and out of treatment, is sad proof that it
doesn't always work. Some problems defy neat solutions -
alcoholism, for one. But the present policy does damage to the
Constitution, makes criminals out of mere users, divides us along
racial and ethnic lines and has not materially dented our drug
problem when it comes to hard-core addicts. Downey himself ought to
make the movie. His only problem would be the "pitch." It's hard to
say if our drug policy is a tragedy or a farce.