CROSSFIRE: SHOULD ROBERT DOWNEY JR. BE SENT TO PRISON?

(Program 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.

JEANINE PIRRO, WESTCHESTER COUNTY D.A.: Mary, I think that...

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...

(CROSSTALK)

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...

MATALIN: OK, OK, OK...

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.

(CROSSTALK)

REICH: May I interject here?

(CROSSTALK)

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...

(CROSSTALK)

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...

(CROSSTALK)

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 cnn.com/crossfire 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

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

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.

(END VIDEO CLIP)

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...

(CROSSTALK)

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.

(CROSSTALK)

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...

(CROSSTALK)

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.

(COMMERCIAL BREAK)

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.