06/20/10 - Eric Sterling

Eric Sterling former counsel for US judiciary committee discusses mechanism of drug policy with guest host Otis McLay

Century of Lies
Sunday, June 20, 2010
Eric Sterling
Criminal Justice Policy Foundation
Download: Audio icon COL_062010.mp3



Century of Lies June 20, 2010

The failure of Drug War is glaringly obvious to judges, cops, wardens, prosecutors and millions more. Now calling for decriminalization, legalization, the end of prohibition. Let us investigate the Century of Lies.

This is the Century of Lies and Dean Becker’s not here tonight. My name’s Otis McLay. I will be sitting in for him and we’re going to continue our conversation with Eric Sterling.

Mr. Eric Sterling: Something that I think is important is, last fall the Department of Justice finally issued a memorandum from the Deputy Attorney General. Saying that, ’The Justice Department was not going to prosecute medical marijuana cases that complied with state law.’ It was a very legalistic memorandum that also sort of said, ’…and we’ll prosecute anybody that we want to for violating Federal Law, not-withstanding that.’ But it was a very important political document.

The Governor of Wisconsin Jim Doyle, almost immediately said, ’It’s clear that medical marijuana is now OK. If the Wisconsin legislature passes it, I’ll sign it.’ In January, the New Jersey Assembly passed a Medical Marijuana Law and the out-going Governor Corzine signed it. This Spring the Maryland Senate overwhelmingly passed a Medical Marijuana Bill. But it didn’t pass in our House of Delegates.

So that the political significance of that memorandum was very important. It also was a signal to people who were interested in opening medical marijuana dispensaries, that they were not likely to face federal prosecution. That if they were operating under State Law, they were going to be ok. So there was a very specific expansion in parts of California, in Colorado and Montana and in Michigan. Which passed a Medical Marijuana Law last November.

In the opening of dispensaries, this has changed the dynamic of medical marijuana very profoundly. It has made it a much bigger, much more legitimate industry. What brings to mind then is this concern. In February, President Obama nominated Michele Leonhart, a career DEA agent to serve as the Administrator of DEA. The position has been vacant since about 2008, I believe.

Michele Leonhart has been the Acting Administrator and before that was the Deputy Administrator and has been at the top of DEA for almost seven years. During that time, about a half a dozen states enacted medical marijuana laws. Before that, she was the head of the DEA office in San Francisco and in Los Angeles. She came in in 1997, a few months after the California Medical Marijuana Law was enacted.

In this whole period then as a top official in DEA, the record of DEA has been obstruction of State Laws; interference with State Legislative activities, to try to create effective medical marijuana laws. So as a consequence, almost every State’s Medical Marijuana Law is kind of screwy in one way or another. There’s this category called, Care Giver.

A care giver can grow marijuana or distribute marijuana to patients. How many different states will say a care giver can serve some limited number of people. All of this law is designed to deal with the fact that the Federal Law does not recognize the medical value of marijuana.

If you think about the Obama Administration then, they’ve issued a memorandum in the Fall. Saying, “We’re not going to interfere with state medical marijuana laws.” But in February, they nominate as their Administrator, someone who’s entire professional career in leadership has been interfering with State Medical Marijuana Laws.

It seems to be that for what should be the most challenging and important core mission of the DEA going forward, helping states come up with laws that are effective in protecting the public and getting marijuana to sick people, safely. They pick the one person who has the worse record, in terms of doing what is going to be that complex job.

Guest Host Otis McLay: Can I be devil’s advocate for just a second and say, “Is this really her policy or did she feel she was carrying out some other policy? Is this coming from her?” In your opinion.

Mr. Eric Sterling: It’s a good question… and I don’t know the answer. The way it could be addressed is for the Senate Judiciary Committee to ask her and the DEA to provide it, with the documents about communications that she had within the DEA regarding this policy. This in fact should definitely be a question that the Senate Judiciary Committee should ask and before they ask the questions in public, they should have the documentation that will back up the answer that they hear.

I mean, you can go to the website of the Senate Judiciary Committee and go to see her public file, where she’s answered all kinds of questions and provided all kinds of documentation, about the speeches she’s made and activities that she’s engaged in. This would be consistent with that. For a very important position, you get a complete record of the activities of the nominee, for this position.

Guest Host Otis McLay: The other question is about judiciary, itself. Would there be people on Judiciary or would Judiciary be likely to vote her to the floor if she was saying, ’Yeah, let’s exceed to these State laws.’?

Mr. Eric Sterling: If she were to say that, one would assume that this has been cleared with the Attorney General and of course, that would be consistent with the memorandum from the Justice Department. These certainly would be good politics, in the sense that the public overwhelmingly supports this. Of course I could see Senator Cornyn or Senator Sessions or some of the other republican senators saying that support of medical marijuana by the nominee, made her an unacceptable candidate.

Guest Host Otis McLay: But it would also raise the question of states’ rights.

Mr. Eric Sterling: Yes, it would also raise the question of states’ rights. The Attorney General of Alabama for example, supported Angel Raich in her Medical Marijuana case in the U S Supreme Court, back in 2005.

Guest Host Otis McLay: I mean, it sort of changes all of the boundaries and all of the little pigeon holds that you’re suppose to occupy as a politician. Is seems to turn a bunch of things on their heads where essentially states…

Mr. Eric Sterling: What we find is that cultural conservatives often run up into contradictions because of what their other principles involve. Here, the question of states’ rights would seem to be one that ought to prevail. The state legislatures are making decisions about, ‘What should be the situation for their people?’ Or, the people of the state themselves, are voting.

Just to give you a sense. In 1996, when Bill Clinton was running for re-election. In the California election, marijuana got a million more votes than Bill Clinton did, in beating Bob Dole. In 2004, when George Bush was being re-elected by the voters of Montana, there even by a larger margin enacting a Medical Marijuana Law in Montana. In 2008, Michigan voters are voting for Barack Obama for President, there by a large margin also passing a Medical Marijuana law. It’s completely non-partisan. It’s completely supported from left to right, in this country.

Guest Host Otis McLay: The other question of course is, in the face of Eric Holders memorandum. Why would justice allow her to continue?

Mr. Eric Sterling: All of these questions of policy within an administration, involve respect for the agency and the process and there’s an opportunity for pushback and resistance. In other words, the revision of the federal law to formally allow medical marijuana, involves either an act of congress or an administrative proceeding, which the head of DEA is delegated by the Attorney General by regulation, to make the decision. The DEA could delay. I’ll give you an example.

Professor Lyle Craker at the University of Massachusetts at Amherst, is an expert in plants and the ingredients of plants and filed an application with the DEA to grow marijuana for research purposes. This application process took years. First they lost it. They claimed they never got it. Then it was returned to him, the one that they said that they lost.

Then they fought it in an administrative process. There was a long hearing. There was then a ‘Finding of Fact’ in favor of him, by the Administrative Law Judge Bittner. Then it waited for almost two years before Michele Leonhart, just before George Bush left the White House, rejected the application. In effect, trying to kill it.

The way in which delay and the misuse of process can play itself out, can apply in the policy making realm as well. So you really want to have someone who is committed to the administration policy and not someone who’d going to drag their feet.

Guest Host Otis McLay: Do you think anybody on judiciary would bring that up?

Mr. Eric Sterling: There are numbers of Senators who could bring it up. It could be brought up by Senator Leahy himself, the Chairman. Vermont is a medical marijuana state. It could be brought up by Senator Feinstein, from California, although she’s never been supportive of medical marijuana. It could be brought up by Senator Sheldon Whitehouse from Rhode Island, which is a medical marijuana state. It could be brought up by Senator Ben Cardin from Maryland, who’s State Senate had passed a Medical Marijuana Bill.

It could be brought up by an independent. Such as Senator Durbin or Senator Feingold, Senator Cole. Certainly any of those democrats would be politically safe and authorized to bring it up. The bigger question is whether or not in bringing it up, they see it as creating an obstacle to the president’s nominee. The democrats in the Senate by and large, do not want to interfere with the President’s program.

Guest Host Otis McLay: The other question is, if she were approved and confirmed by the Senate… Given that the Attorney General has said, ’We’re not going to prosecute medical marijuana.’ Could she conform to that? Is she a good bureaucrat, is what I’m saying.

Mr. Eric Sterling: Don’t know the answer to that. What you really want is not simply the non-prosecution or the representation that they won’t prosecute. What you need in the medical marijuana area is a change in Federal Law, so that the State Laws can be straightened out and don’t exist in these funny situations where the state says, ’It’s OK for patients to have this medication. But we have no way that they can legally get the medication.’ or ’We have no way that the medication can be legally produced and inspected.’

I went to a conference of the National Association of Boards of Pharmacy in Tucson in December. It was a day seminar on medical marijuana. The pharmacist said, ’Look, we’re not opposed to medical marijuana. We just don’t see how you have a sufficiently pure or standardized product that we can dispense. We don’t know what’s in this thing, with it’s slang name.’

One of the features of the better dispensaries in California, like Harborside and the Berkley Patient Group, is they are actually doing a scientific analysis of the medical marijuana that’s being brought to them, so that they can say, “This is what’s in it. This is what the percentage of THC and these are the cannabidiols and cannabinols and all the other kinds of compounds that are important, to make marijuana a useful medication. Until that gets standardized, it’s a really problematic kind of thing. There’s the whole question of, ’How can you talk about dosage if you don’t know what the potency is?’

There is a company based in the Netherlands called Bedrocan, that produces standardized plant marijuana for pharmacies in the Netherlands. Their product is same from batch to batch. I know that they’re trying in the United States, to do this . They may up perhaps being the organization that does this in the District of Columbia. Which has authorized five dispensaries in the district, to start operations once the regulations are adopted.

Guest Host Otis McLay: We’re talking with Eric Sterling who’s President of the Criminal Justice Policy Foundation. Would this shift in our own policy, how would it effect what’s going on, on the border?

Mr. Eric Sterling: In Mexico, the central governments attack upon these drug trafficking organizations. They are engaged in both counter attack and their own conflict, for protecting what they call the plaza’s. Their trafficking routes to the various points along the border. The government’s attack means that they are trying to get informants. They want to intimidate people against informing. They want to punish people they believe have informed.

So there is an enormous amount of killing taking place. There’s other kinds of criminal activity, such as kidnapping. Mexico’s legal institutions historically have been very, very weak and they are staggering under these challenges. Their prisons are corrupt. Their judiciary is weak. Historically the local police; the state have been weak, poorly trained, poorly paid. One of the things the United States has been doing through something called the Merida Initiative is trying to increase the training in professionalism of Mexican agencies, in law enforcement.

Guest Host Otis McLay: But none of that would resolve the issue of pay and how much money you can make for five minutes of not working.

Mr. Eric Sterling: No. The question of pay is further limited by the global financial crisis that has effected manufacturing income in Mexico. The price of oil is down, which is a major source of dollars for Mexico. Tourism is way down because of the violence. The ability of the government to pay more, is constrained by the economic situation.

So the Mexican people are very upset. People speculate that the political party of the opposition, the old one party system called the PRI, might come back into power. That’s been a party that was always sort of engaged in accommodation with the drug trafficking organizations.

The concern is that in the next Presidential Election in Mexico, in effect the traffickers candidate is likely to win, on a kind of a peace platform. That will institutionalize, in many respects, the cartels. It may reduce the violence and…

Guest Host Otis McLay: The question for me is, ’If our policy were to shift and say marijuana were more legal or legal, how would that effect the cartels? Because it seems that some of the profit would be going out of it. They would just become suppliers at a market price.

Mr. Eric Sterling: Many of these criminal organizations already are entering into various kinds of legal business, as ways to launder their money and extend their power. Let’s assume, if the United States were to legalize marijuana and the Mexican government followed suit, who would have the licences in Mexico, to grow marijuana legally? It could very well be the same people. Would they become less violent?

Guest Host Otis McLay: One of the issues about the Drug War’s been that you have no recourse in a dispute. If it were legal, obviously you could go to court.

Mr. Eric Sterling: Yes, you could go to court. Your premises are subject to inspection. You have to file tax returns. You’re now an open and aboveboard business. That can have very powerful effects in changing your business practices, if the state is able to enforce those laws. If the state remains weak and subject to corruption, then the effects of legalization are going to be less pronounced. The positive effects.

Guest Host Otis McLay: So what would you say in thirty seconds about it?

Mr. Eric Sterling: The change over the long term, could be to strengthen the Mexican State and it’s ability to control all of the activities that are taking place, to reduce crime and corruption overall.

Guest Host Otis McLay: We’re talking with Eric Sterling, who’s the President of the Criminal Justice Policy Foundation. The kind of question is sort of a general wrap-up of… we’ve been real specific about some things. But where do we actually see the Drug War going in say, the next two or four years or even more?

Mr. Eric Sterling: I think that those of us who have been working for change, feel that we are close to a tipping point. In 2010, we had both New Jersey adopt a Medical Marijuana Law and the District of Columbia adopt Medical Marijuana Laws. We’re going to have a chance for California, which has been the cutting edge on so many of these issues, vote on a legalization of marijuana initiative.

We’re seeing a crisis in Mexico. We know that the former President of Mexico, the former President of Columbia, the former President of Brazil all got together and said that, ‘The current approach isn’t working.’ We are, through the whole international regime is, sort of balancing by a tread as to whether or not it will come down and we will develop a new approach.

I think that the organizations that are doing this kind of work, the Drug Policy Alliance and the many other organizations that are doing this, are on a roll. They are well organized. Their staff and leadership are mature. They increasingly are getting legitimacy. You may have seen the recent campaign with Sting sort of say, ’The war on drugs is bad.’ Celebrities are coming in so that all of the different kinds of elements necessary to change a well embedded policy, are coming together.

Whether or not that means it’s going to be in two years or four years, that in part… If a republican is elected in the 2012 election, I think this pushes thing back. I think that the republican base is not going to be supportive. Unless there were a candidate who is a key party libertarian type, than that’s a different kind of story. It may be that the traditional political lines are breaking down. I don’t have a crystal ball. But I do know that it is an extraordinary exciting time to be engaged in this work.

Guest Host Otis McLay: Just one parting thought. Is there any new information about this, about what’s going on? Books or anything like that?

Mr. Eric Sterling: There’re two books that I would recommend. There’s a new book called, ‘Cannabinomics’, subtitled: ‘The Marijuana Policy Tipping Point’ by Christopher Fichtner. A physician and psychiatrist who was the head of the Department of Mental Health in Illinois, a former professor at the University of Chicago.

He looks at both medical marijuana and the social use of marijuana and the economy around this. That I think, is an important new book for thinking about what post prohibition marijuana’s going to look like. The other is a book by a woman named Michele Alexander. A lawyer writing a book called, The New Jim Crow. On what is kind of a revelation to her, that the real role of our drug policy is to maintain ‘white privilege’.

Sort of related to this, there’s going to be some papers released very soon by Harry Levine, from Queens College at the City University of New York. He’s a sociologist who has studied marijuana arrests in cities and counties around the country and shown how frequently these have focused on young men of color. Primarily African Americans and to certain extents Hispanics and this is just mind blowing information.

For example in New York, which in 1977 decriminalized marijuana. The police made something on the order of forty thousand marijuana misdemeanor arrests, for very small quantities. Because they trick young people. The possession is legal and they say, ‘Do you have anything in your pocket?’ and when the defendant takes the marijuana out of their pocket, they are displaying it. The public display of marijuana is a misdemeanor and that’s what they get charged with and the disparity between blacks and whites in this, is a scandal.

Guest Host Otis McLay: Fascinating. Alright Eric, I think that’s great. Really great talking to you. It’s been a long time.

Mr. Eric Sterling: Thanks, Otis. Thanks so much. I really enjoyed it.

Guest Host Otis McLay: Later.

Mr. Eric Sterling: Bye-bye.

Guest Host Otis McLay: Bye-bye.

We’ve been speaking with Eric Sterling. President of the Criminal Justice Policy Foundation, a private non-profit organization that helps educate the Nation about Criminal Justice. A major issue.

I’m Otis McLay. I’ve been sitting in for Dean Becker and he will be back next week. Thanks for listening.

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…


For the Drug Truth Network, this is Dean Becker. Asking you to examine our policy of Drug Prohibition.

The Century of Lies.

Drug Truth Network programs, archived at the James A. Baker III Institute for Policy Studies.

Transcript provided by: C. Assenberg of www.marijuanafactorfiction.net