06/20/10 - Eric Sterling

Cultural Baggage Radio Show

Otis McLay guest hosts, Eric Sterling president of Criminal Justice Policy Foundation is guest

Audio file


Cultural Baggage June 20, 2010

Broadcasting on the Drug Truth Network, this is Cultural Baggage.

It’s not only inhumane, it is really fundamentally un-American….. ‘NO MORE’ ‘DRUG WAR’ ‘NO MORE’ ‘DRUG WAR’ ‘NO MORE’ ‘DRUG WAR’ ‘NO MORE’ ‘DRUG WAR’

My Name is Dean Becker. I don’t condone or encourage the use of any drugs, legal or illegal. I report the unvarnished truth about the pharmaceutical, banking, prison and judicial nightmare that feeds on eternal drug war.

During this time of eternal war
I find it my somber duty to report the death toll
From the drug formerly known as marijuana… is


Good evening. Dean is not here tonight and this is, I think, the first time in six years that Dean has not been here. My name is Otis McLay and I’ll be sitting in for him tonight. Tonight on Cultural Baggage and also on Century of Lies, we’ll be talking to Eric Sterling, who is the President of the Criminal Justice Policy Foundation.

Eric Sterling was council to the U S House of Representatives Committee on the Judiciary. He was a principle aid in developing the comprehensive Crime Control Act of 1984. The Anti-Drug Abuse Act’s of 1986 and 1988 and other laws. Since then , he has been making up for that by working against the drug war.

Perhaps I shouldn’t be saying work against the drug war so much as, working to make what our relationship to drugs is, somewhat more intelligent and constitutional. Eric Sterling is one of the prime examples of redemption in action. We’re talking with Eric Sterling and I guess my question to you is, ‘What’s going on in the drug war?’

Mr. Eric Sterling: There is a lot that is happening. I think the big headline issues of course, are the violence in Mexico, the California initiative that’s coming up on November 2nd. The White House has issued a drug strategy that differs in many respects from the last administration’s drug strategy. There’s some legislation dealing with cocaine sentencing.

Guest Host Otis McLay: You mean to equalize the crack and powder?

Mr. Eric Sterling: That was the goal of the advocates. The Senate unanimously passed a bill that would set a 1 to 18 ratio. It would raise the quantity that triggers the mandatory minimum from five grams to twenty-eight grams or fifty grams to two hundred and eighty grams. There’s two categories. The first one gives you a mandatory sentence of five years up to forty years. The other gives you a mandatory sentence of ten years up to life.

The equivalent powder cocaine quantity in the first case is, five hundred grams. It’s a little more than a pound. In the second case it’s five kilograms, which is about twelve pounds. That is facing the hurdle of both the democrats and the republicans in the House of Representatives.

The republicans see this as a symbolic giving of lower sentences to crack dealers. The democrats that cocaine is cocaine is cocaine and that a one to one ratio is what is called for. So it’s really an up-in-the-air question whether or not that legislation will go to the floor in the House and therefore it’s an open question whether it will be enacted before congress adjourns this year.

Guest Host Otis McLay: Yeah, there’s no movement towards getting rid of mandatory minimums or any of that stuff.

Mr. Eric Sterling: Actually there was just a hearing a couple of weeks ago. The United States Sentencing Commission is preparing a study for Congress on the question of mandatory minimum sentencing and they had a day of hearings considering the wisdom of them and the problems that have existed and that they might have to decide, ‘how far out on a limb they might want to go’.

The Judiciary has historically opposed mandatory sentencing in principle. The American Bar Association has opposed mandatory sentencing in principle. The advocates are typically prosecutors who recognize this as a very useful tool for encouraging people to plead guilty and the police unions and other organizations, such other police non-profit associations, also have supported mandatory minimums as sort of part of the team effort.

However, they did oppose mandatory minimums in case of certain firearms cases, involving Federal agents who were prosecuted for shooting people who’d come across the border illegally, who’re suspected drug traffickers. They got mandatory minimums and there was a beginning of a recognition that it might be unjust.

Guest Host Otis McLay: Was there any consciousness that perhaps these draconian sentences might not be useful?

Mr. Eric Sterling: Well certainly many of the witnesses before the Sentencing Commission made that argument and I think the sentencing commissioners, some of them are quite open to that possibility and it raises the even more contentious question of, ‘How long should a sentence be?’ and the disagreements that exist about sentence length.

There’s a way in which you can understand sentence length or the decision about imposing sentences is essentially kind of a political position. ‘Am I as a judge, going to cloak myself as a tough vindicator of a public against criminals? Or, am I going to see myself as someone who might be inclined to give second chances?

All of this language reflects different ideas about how useful sentences are vs. as actual tools for reducing crime vs. expressing outrage. It’s not an area where the actual evidence is decisive. The evidence seems to be pretty clear that if you want to impact criminal behavior, the sooner you can impose a punishment and the more certain it is that that punishment is going to take place, the more likely you are to deter the behavior.

But if you have a very long sentence, that just doesn’t get calculated by the types of folks who are going to commit these offenses. Because they’re more typically thinking, ’Well, they’re probably not going to catch me,’ and the connection between when the sentence is imposed and when the crime actually took place, is just too remote to have much of an educating deterrent effect.

Guest Host Otis McLay: It sounds like nothing much has changed.

Mr. Eric Sterling: The broad debating points don’t change much. What does change is perceptions about whether or not the political climate might be more tolerant of the change. For example, the Obama Administration endorsed on the cocaine sentencing question a principle of one to one, when it testified before the Senate Judiciary Committee and it did the same thing in the National Drug Control Strategy.

This is a signal that the Justice Department may not be as hard-lined now, as it was in the last administrations and therefore it’s a signal to the Sentencing Commission that a different approach might not get the same kind of pushback from the justice department.

Guest Host Otis McLay: We started talking about the Drug War and I kind of led you off into this other area, which in a way reflects very much what’s going on. The idea that somehow these draconian sentences have an effect on crime. Which I think all the evidence is that they don’t.

Mr. Eric Sterling: The evidence is very strong, they do not. When you do a careful analysis, which you realize is… If you have a limited number of prison beds, if you devote all of them to a population of offenders who committed their crimes ten years ago, you have very few beds available now. That if you had shorter sentences, you could arguably do a more effective job deterring, because you have more bed available.

Because your sentences aren’t so long that beds are turning over and that if you were operating a situation where your case loads focused on moving cases quickly and imposing punishments quickly, that would work better. If your system is overloaded with too many low level cases and trivial cases and everything goes very slowly and the punishments are imposed very slowly.

A classic instance is in a case where you’re punishing someone who violates probation or parole, commonly by using drugs or not showing up for an appointment with a probation or parole officer. This might happen some number of times and the probation officer says, ‘Well, the court is so busy. I’m just not going to do anything about it. I’ll warn the guy. I’ll threaten the guy.

Finally the probation officer says, ’OK. I’ve had enough. I’m filling out a paper. I’m going to violate your probation and now, you’re going back to court and the judge is going to give you three years,’ and the probationer’s saying, ’Well, gee’s. Why didn’t you tell me you were serious?’ ‘If you were serious, why didn’t you do something the first time I didn’t show up, or the second time?’

We’re talking about folks who will test the system, like this. There’s a judge in Honolulu, Hawaii named Steve Alm. Who, when he became judge was flabbergasted at how frequently he was getting these cases of probation violation and the people had long records of violation. He said, ’Why are you waiting so long to bring these cases? This isn’t the way you would raise a child or train a dog.’

You have to respond quickly and he put in an approach which essentially says, ‘If you’re on probation, we’re going to frequently test you for drugs and if you don’t show up or if you turn in positive, you’re going to go to jail immediately. Now, you may only go to jail for a day or two. But count on it. You’re going to go to jail.’ He made the system work and one consequence is that the number of people who were using drugs while on probation, went down eighty percent. People got the message.

These were people who all had felony cases. These were serious offenders. But they got the message and he’s essentially sort of concluded that, ‘These are guys. They could do a long stretch in prison. They’d already done that before, but they didn’t want to do it now.’ When the opportunity to use drugs came up they say, ‘If I do that now, that means I might not be able to go to… my nephew’s birthday party on Saturday, or whatever.’ That they could translate the immediacy of the sanction into the inconvenience for their life. It wasn’t something far in the future and they changed their behavior.

The probation officers in Hawaii are pretty well trained in social work and got to then have a chance to work with the offenders and give them the kinds of supports and training and changes that can reduce recidivism. So there’s a lot of buzz right now about what is called ’Operation HOPE’ Hawaii’s Opportunity Probation Enforcement. Which this Judge Steven Alm had been doing in Honolulu.

Guest Host Otis McLay: Here you’ve got some guys who’ve done serious time and they don’t want at day. I mean from my point of view, from someone who’s never been in prison. For me, a week in prison would be pretty corrective.

Mr. Eric Sterling: Exactly. A week in prison would be corrective. Especially if it was like, right away. But it’s both corrective and it’s inconvenient. You’ve got a schedule. In the next week you’ve got dinner with so-and-so. You’ve got something to do with your wife. You’ve got your daughters soccer game… You know, ‘Where’s Daddy?’ ‘Daddy’s in jail.’ ‘What! What is Daddy doing in jail?’ ’How come he did that and missed my soccer game?’

There is an immediacy that somebody could say, ’I don’t want…’, ‘I can control myself enough.’ What they sort of concluded is that, the people who couldn’t control themselves in terms of their use of drugs, those people were demonstrating by their behavior, that they really needed drug treatment. Then they put those people in much more intense drug treatment settings.

Rather than a kind of BS based, ’Do you have a drug habit?’ ’Oh, I have a terrible drug habit.’ Well, why is the offender saying that? Because drug treatment is a way to get out of jail.

When I was a Criminal Trial Lawyer more than thirty years ago, I would plead my client guilty, who were guilty and try to get them in drug treatment instead of having them sent to the state prison system. Drug treatment was the way out and of course the treatment programs were paid on a per client basis.

So they were always looking to make sure that their beds were filled and if my client could fill an empty bed, my client had a drug problem. So that there is a way in which the system is gamed. It’s not to say that there aren’t people who desperately need drug treatment, but the system does get gamed and this is a way of helping to sort of prevent some of that gaming of the system and introducing an integrity that…

Guest Host Otis McLay: This judge in Hawaii, who’s effectively using what I guess politicians would call meaningless sentences. You know, that they’re so short. Many municipalities in the states are outsourcing their prison… you know, the CCA. I guess Wackenhut was subsumed into CCA. At the same time, there’s this issue of how much it’s costing us to lock people up and I know in California, I think they’ve been letting people out because they don’t have enough beds for the current offenders. Is there any pushback from these private prison corporations?

Mr. Eric Sterling: I don’t know what their pushback is. They have to operate very carefully so that they don’t appear to be trying to skew the system to their financial benefit, when every state is struggling to figure out how to cut costs. They more typically will argue that they essentially can provide the same services for less and they’re not trying to expand.

Hawaii was sending many of their prisoners to mainland United States and it was very expensive for them and there’s a lot of support for Judge Alms’ program in Hawaii. People recognize it keeping people together and providing supports in the community, to end up reducing recidivism. They have had a serious crime problem in Hawaii and so something that is effective and cost effective, gets a great deal of support.

Another advantage is that Judge Alm had been a prosecutor. He had been the United States attorney in Hawaii during the Clinton Administration and so he was known as a tough guy. He didn’t come with a reputation as a softie.

Guest Host Otis McLay: Let’s move to the Drug War a little bit, that I kind of diverted you from. I guess we were in the middle of cocaine and some of the changes that they’ve been wanting to make about cocaine. I’m just curious about the consciousness. ‘Cause that one thing you said to me that some people are kind of listening to Ron Paul and of course he’s had a very different approach to the drug war.

Mr. Eric Sterling: Congressman Ron Paul as a libertarian, has been opposed to the drug war; to the prosecution of people for using and just engaging in the drug commerce. His Presidential Campaign in 2008, energized a libertarian flux among conservatives and republicans.

Recently I heard Howard Wooldridge from Citizens Apposing Prohibition, who has been working on Capitol Hill, educating the staff of members of Congress and Senators, for I think five years now, talk about how powerfully Ron Paul’s approach influenced them to re-think the logic of drug prohibition.

That’s important to recognize that it’s staff are then providing information to their bosses that are more critical of drug policy, than they had been. It means that they are in conversation with their bosses about statements that could be taken, about amendments that can be offered and those changes play out slowly.

There is likely to be a much more comprehensive, legalize tax marijuana bill introduced next January in the House of Representatives.

Guest Host Otis McLay: Really? Who do you think?

Mr. Eric Sterling: I’m not at liberty to say.

Guest Host Otis McLay: OK, ok. Good. That’s even better.

Mr. Eric Sterling: I know that these things are being discussed and people are sort of talking quite seriously about moving ahead in that direction. That of course will be very much influenced by the initiative in California, the Tax and Regulate initiative. It is very important for people who think the War on Drugs is in the state, to support that initiative.

The latest polling I understand, is that forty-nine percent of the likely voters say that they would support it, forty-one percent say that they oppose it and something like eleven percent are undecided. That’s a very close margin going into a race like this and it’s going to be very dependant on who goes out to vote and whether or not the campaign is able to mobilize that.

But the California Conference of NAACP chapters for example, is going to endorse this I think next Tuesday. There are going to be a economists and clergy and lots of other people who are going to be formally endorsing it, as part of a campaign to build support for this. There’s going to be a program that the American Bar Association annual meeting on the Keeper Constitutional questions of what it would mean if California were to legalize marijuana under state law. So these are very important developments.

If this succeeds, it will have a tremendous effect in other countries as well because it will signal the collapse of the marijuana prohibition consensus and other countries will begin to recognize that if this is changing in the United States, it’s going to then change in the United Nations and it could change around the world.

The drug prohibition is an enormous problem for countries like Mexico, Columbia, Jamaica, Guatemala, Ecuador, Bolivia, Peru. The point simply is that the profits of the drug trade finance organizations that engage in extensive bribery and the use of violence and in Columbia and Mexico have threatened the sovereignty of the government itself. These are various serious problems to those states.

It’s ironic, tragic that American servicemen are being killed with the weapons that are purchased by drug money Afghanistan. The Taliban is in the drug trade and the reason the drugs are so profitable, is because the United States is so adamant in insisting that it has to be an outlaw business.

Either there’s no question that we can legalize the opium cultivation in Afghanistan, create a legal market for it and use the opium in medication to treat people in serious pain, in many parts of the world where the medication is unavailable and doing so would de-fund the Taliban, to a great extent.

Guest Host Otis McLay: You kind of touched upon the issue that the incredible profit in the drug trade, is based on illegality. Which we all know.

Mr. Eric Sterling: Well increasingly, that’s what this Ron Paul message (is). Because Ron Paul focuses so much on economic questions. There has historically been a kind of blinder, to thinking about the economic impact of drug prohibition and that’s beginning to grow. That’ very important to sort of recognize.

On Thursday, the Drug Policy Alliance and a number of organizations including mine, the Criminal Justice Policy Foundation, sponsored a day long symposium on the War on Drugs. It was held in the Rayburn House office building and was practically a standing-room-only audience of Congressional staff and members of the public and others, to talk about these issues.

Sanho Tree from the Institute for Policy Studies did a tremendous job, laying out exactly how the economics of how the drug trade operate. There were speakers from the Cato Institute and from Physicians for Human Rights and there was a District Attorney from New York state and then one of the key speakers was from Switzerland.

The former Surgeon General of Switzerland, who laid out why they have legal heroin in Switzerland and how effective that has been, since they closed down the famous Needle Park back in 1992. They’re very pleased that by making heroin legally available to hardcore addicts. They’ve reduced crime, reduced the spread of AIDS and increased public health and safety.

Guest Host Otis McLay: We’re talking with Eric Sterling. He’s the President of the Criminal Justice Policy Foundation and we’re going to continue this conversation in Century of Lies, which will be up shortly.

It’s time to play: "Name That Drug - By It’s Side Effects!"

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Time's Up! Talk about dependence! The answer: From GlaxoSmithKline:

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Prohibitions fill the world with vice and crime
It’s left a trail of death, graft and slime
It can’t stop what it’s meant to stop
Everybody knows this, but the cops

Prohibition don’t prohibit, worth a dime.

To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the unvarnished truth.

This show produced at the Pacifica studios of KPFT, Houston.

Tap dancing on the edge on an abyss.

Submitted by: C. Assenberg of www.marijuanafactorfiction.net