Transcript

Century of Lies / March 4, 2012

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DEAN BECKER: 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.

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DEAN BECKER: Hi folks. This is Dean Becker. You’re listening to Century of Lies on the Drug Truth Network. Man, do we have a great show for you today. We’re going to get right to it.

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ANNA MARIA TREMONT: I’m Anna Maria Tremont and you’re listening to The Current.

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First a man who once held the U.S. draft tough sentencing guidelines now believes mandatory-minimums were a mistake.

Canada’s Bill C-10, also known as the Safe Streets and Communities Act, among other things Bill C-10 includes a controversial proposal that forces judges to give mandatory-minimum sentences for drug related offences.

Eric Sterling was legal counsel to the U.S. House Judiciary committee which drafted Washington’s mandatory-minimum sentencing laws in the 1980s. He has changed his mind since that time. He believes Canada is about to repeat some of the same mistakes. Eric Sterling joins me now from our studio in Washington.

What was your message to Canadian Parlimentarians about the use of mandatory-minimum sentencing in fighting crime?

ERIC STERLING: There were several points. The first is that it’s actually insulting to the judges of Canada. It presumes that they’re really not competent to identify the serious offenders who deserve long sentences.

It’s insulting to prosecutors – that they’re not capable of presenting evidence to the courts that identify the serious traffickers who deserve the long sentences.

The maximum sentences in the law are already quite tough – 14 years for some offences up to life imprisonment for others.

So what happens is this leads to injustice where judges can’t look at the facts of a case and say, “This person is just a driver. This person, she’s just the gardener.”

The quantity triggers are inflexible and they don’t accurately reflect the role in the criminal organization that the person had who’s standing in front of the court being sentenced.

ANNA MARIA TREMONT: Why did the U.S. decide to adopt mandatory-minimum sentences in the ‘80s?

ERIC STERLING: It was a complex of factors but the immediate driving factor was politics. It was an election year. It was 1986.

A prominent basketball star had died from a cocaine overdose. He had signed with the Boston Celtics. The Speaker of the House of Representatives was from Boston and realized that the public was paying a great deal of attention.

He called the Democrats together and said, “We can play this issue and play it to success in our November election.”

In a great deal of hasty electoral frenzy - without hearings, without careful deliberation – it was put together in the last few days before the August recess.

We used quantities that were incomprehensibly small – 5 grams, 10 grams, 50 grams – triggering sentences as long as 5 or 10 years for various drugs.

ANNA MARIA TREMONT: I was just going to say grams of what drugs?

ERIC STERLING: Grams of crack-cocaine, grams of LSD, 500 grams of powder cocaine. These were…you know…500 grams of powder cocaine is like a size of cup of sugar. This is not what a cartel is concerned about.

Instead of thinking about a ton of cocaine which is in the load of an airplane (that’s one million grams) we picked incredibly small quantities because, of course, Americans don’t speak in gram weights. These are not part of our understandings of how big or little something is.

We just made a colossal mistake. It has been almost impossible to fix those mistakes.

ANNA MARIA TREMONT: You were counsel to the judiciary committee that actually drafted the legislation so you actually wrote it up, did you?

ERIC STERLING: Yes, the first House version came out of my word processor at my desk.

ANNA MARIA TREMONT: hmmm, OK. So you say that it was a mistake, but, how so? Putting those numbers down – how did it turn into a mistake? Tell us what you saw as time went on.

ERIC STERLING: As time went on we saw several things. First the justice department used those low quantities as their targets. So the data that we get from the courts now is that the average weight, for example, of a federal crack-cocaine case is 52 grams. It’s right at the bottom. The average weight of a powder cocaine case is 5 kilos. So they’re not targeting the high-level offenders.

We have a sentencing commission that looks at the cases that judges report and something like 60% of the cocaine cases involve people who are lookouts or couriers or unloading boats. They’re not the high-level people (less than 10% of the federal cases.)

Now in the United States most criminal cases are done at the state level. The idea that congress had was to reserve the federal authorities that could only do maybe 25,000 drug a cases in a year for the highest level offenders.

So the first lesson is the law got misused. The second lesson is that it got used unjustly by going after low-level offenders. Third was there was a tremendous racial disparity in how these laws were applied especially in the cases of crack-cocaine.

ANNA MARIA TREMONT: Meaning more African-Americans were convicted.

ERIC STERLING: For every white crack-cocaine offender in federal court there are 10 African-Americans. It’s completely disproportionate. These are all low-level offenders. So the wrong targets are being brought into court.

So a legitimate fear is that you would have similar kinds of racial disparities with first nations and immigrants and others.

ANNA MARIA TREMONT: So what was the point in time when you changed on this? Was it gradual or was it one moment in time?

ERIC STERLING: My feelings changed certainly over time. Throughout the 1980s I had the opportunity to go with members of congress to South America to meet with foreign leaders to hear our own anti-drug people explain the situation. I had the opportunity to work with the highest DEA officials, Customs officials and so on and hear their explanations.

It seemed to me that it was not working. We passed every congress tougher laws. We spent more money. I became convinced that this was not going to work so I left the government in order to lend my voice to those who wanted change – a policy that’s politically attractive but doesn’t work.

Think about the economics. The goal of this is to drive the price of drugs higher and higher. It’s an economic law that the more profitable an activity is the more people are going to enter into it.

It’s basically illogical. The harder our drug enforcement agencies work – the more people are going to come into it to try to sell drugs to make the profits that they’ve created.

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DEAN BECKER: This is Dean Becker. You’re listening to a Century of Lies on the Drug Truth Network and Pacifica Radio. We’re tuning into a recent edition of The Current featuring Anna Maria Tremont. She’s interviewing Mr. Eric Sterling of the Criminal Justice Foundation. And more coming up.

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ANNA MARIA TREMONT: I’d like to bring someone else into this conversation. Robert Sampson is listening in. He served as the Corrections Minister of Ontario in the government of Mike Harris.

In 2007, Stockwell Day, then the Federal Minister of Public Safety, asked Mr. Sampson to draft a review of Canada’s correctional services. Many of the recommendations in Robert Sampson’s 2007 report are not included in the new bill, C-10.

Well, according to Eric Sterling this policy has failed in the United States. What do you make of what he is saying?

ROBERT SAMPSON: It sounds to me that what Eric is explaining is the fact that it’s a poor enforcement issue or application of the change in law not a poor piece of legislation.

Sounds to me as though…and it probably is a lot easier to find those who are (as he says) peddling the cups of cocaine…although I must admit I’m not an expert in the field but that sounds like a lot to me.

But it sounds to me like the police and law enforcers down there decided to focus on that market and start to harvest those individuals as opposed to the bigger dealers.

I’m not sure that it’s the law that’s wrong. It might have been the application of the enforcement of the law that’s wrong.

But in the Canadian context the point that we’ve been trying to make in our report was generally the people that get involved in this type of activity need to have a significant change in their life to get off and out of that activity. That doesn’t happen under minimum sentences or conditional sentences or limited sentences because there’s very little time for the system - the correctional system, the system that I used to have custody and control of in Ontario - to help these people.

ANNA MARIA TREMONT: Are you saying they were in there too short a time for rehabilitation?

ROBERT SAMPSON: In the Ontario system and even in the federal system the average educational level is about grade 8. I would say about 80-90% of the people in the Ontario system (and I think the numbers in the federal system are about the same) are unemployable. They literally have no employable skills.

So to bring them into the justice system, sentence them to 6 months at home and then push them back in the public again is not helping them. And guess what?! They come back again. Why? Because the best source of income that they know is moving drugs from A to B.

They don’t have a skill that can hold a job. So the system needs to have them long enough to provide them with those skills and resources.

ANNA MARIA TREMONT: Are you saying they should go to prison to learn a trade?

ROBERT SAMPSON: Well, they should go to prison so they have an opportunity to turn their life around and get out of the cycle that they’re into now. That’s the problem.

Smaller, shorter sentences don’t provide the system long enough time to help these people out. Grade 8 education…how long did it take you to get to a high school education?! 6 weeks? 6 months?

No, it takes some time to help these people realize that the job that they’re in now which is peddling and using drugs is not the right job for them.

ERIC STERLING: Anna Maria…

ANNA MARIA TREMONT: Go ahead, Eric Sterling.

ERIC STERLING: With all due respect, it sounds absurd to me that we’re going to use mandatory sentences as a device to educate uneducated drug addicts and believe that we can move from an 8th grade to a 12th grade level in a year or to.

What we found in the United States was that by overcrowding our prisons we had to spend so much on the security side that the educational and rehabilitative functions got zeroed out. We lost Pell grants. We lost all…

ANNA MARIA TREMONT: OK, let Robert Sampson reply.

ERIC STERLING: Yes.

ROBERT SAMPSON: Eric, I agree. The U.S. system is not the Canadian Corrections system. We don’t do that here in Canada. We actually, in spite of the federal and provincial correctional systems, do a reasonably good job in turning peoples’ lives around.

ANNA MARIA TREMONT: Mr. Sampson, the criticism is, of course, Canada’s prisons will be more crowded because of this system.

ROBERT SAMPSON: There may be but you know what?! There may be less people coming back in the second, third, fourth, fifth, sixth time which is what’s happening now.

We’re having …

ANNA MARIA TREMONT: What is the recidivism rate in Canada?

ROBERT SAMPSON: It’s about...well, it depends on prison system you’re looking at and what numbers you look at but it’s about 50% which…you know, isn’t really great but is a heck of a lot better than in the states.

ANNA MARIA TREMONT: I have a clip that I’d like you both to listen to. This is Samuel Egonu. He’s a former inmate from Toronto. He now runs 180 Change Street – a program for youth who have been incarcerated. Let’s hear from him.

SAMUEL EGONU: Before I went to prison I was never violent. I had never had any charges for assault – nothing of the sort. Once I was in prison that’s when the violence began. That’s when the assaults started because they had to happen.

It wasn’t a situation where you could just sit there and not be involved. It was very hostile – a very tense environment. You’re on your toes every second. You gotta watch your back every second – very, very tense and very, very difficult for someone to, you know, see a brighter future coming out of that environment.

ANNA MARIA TREMONT: Mr. Sampson, Robert Sampson, he’s basically saying that the education one of violence. What do you say to that.

ROBERT SAMPSON: I’m saying the correctional system is not perfect and in some cases he’s right. I’ve met other people who’ve said, “If it weren’t for going into the correctional system they wouldn’t have learned how to be a carpenter.” And that’s what they were when they left and that’s not what they were when they came in.

So, you know, is the system perfect? No. That’s what our report says. It’s got a lot of improving to do. Is it better than the U.S.? You’re darn right it is.

Canadian correctional systems across provincial and federal systems are known for it’s programming. It’s effective programming.

ANNA MARIA TREMONT: Ok, so let me just ask to clarify. If you want to invest money in programs to help people who are risk why not do that outside prisons?

ROBERT SAMPSON: Because they’re just not as effective and that’s what the research says. It’s not …

ANNA MARIA TREMONT: But are you sentencing them to a carpentry trade inside or are you sentencing them to a rehabilitation that they’re actually going to get because that’s the other criticism that, in fact, it’s not available to most prisoners.

ROBERT SAMPSON: Well, as I said, it’s not a perfect system and our report says it needs to do a lot better in providing those types of programs across the system and addressing the true skill and educational and anger management and drug addiction challenges that these folks have when they come in.

But to send them back into the public after serving six months is just, frankly, expecting the results we get which is a return back to the system again. So, if we can stop the people coming back into the system 2,3,4 and 5 times and even in the parliamentary budgetary executive hasn’t even looked at that number.

So if we can improve recidivism it’s a huge reduction in the population of the prisons.

ANNA MARIA TREMONT: Eric Sterling, what is your response to Robert Sampson’s statement - his view that longer sentences will allow more time for rehabilitation?

ERIC STERLING: I think that it is both naïve and cruel to think that we’re going to get rehabilitation out of incarceration. There’s a program in Honolulu, Hawaii called HOPE run by Judge Steven Alm where frequent drug testing and mandatory punishment for coming up with a positive drug test or failing to meet with the probation officer has led to very low recidivism rates at much less cost than keeping people incarcerated.

It keeps people together in their families. It allows them to learn the trades and get the experience they need to get real world jobs. It’s completely naïve to think you can change the criminal justice system simply by passing more mandatory sentences.

ANNA MARIA TREMONT: Robert Sampson, are you being naïve?

ROBERT SAMPSON: Oh, no. Mandatory sentences are how long is this individual under the care and custody and control of the correctional system. That, by the way, doesn’t mean that’s how long they are in jail.

We have something up here called parole. We have earned release. We have day release programs. We have programs where these people are gradually released back into society still under the control and custody of the prison system, still part of their sentence but they’re actually doing that sentence under a program and administration that’s governed by correction’s candidate if it’s a federal inmate or the provincials is a provincial system.

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DEAN BECKER: Once again this is Century of Lies on the Drug Truth Network. We’re tuning in to a recent edition of The Current hosted by Anna Maria Tremont. Her guest, Eric Sterling of the Criminal Justice Policy Foundation and Robert Sampson. He’s the former Corrections Minister of Ontario.

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ANNA MARIA TREMONT: Let’s visit this issue that Eric Sterling has also raised about judge’s discretion when we talk about mandatory-minimum sentences. I have a clip of former Ontario Superior Court Judge James Chadwick.

JAMES CHADWICK: When you take away those powers of applying discretion and put in mandatory-minimum sentences I think it’s going to create a lot of problems in the judicial system.

First of all you’re going to get a lot fewer people are ever going to enter pleas of guilty to offences. You’re going to have more trials. The trials will probably be more lengthy. There will probably be a lot more charter arguments involving the sentencing whether the minimum sentence is just charter provisions.

ANNA MARIA TREMONT: Robert Sampson, what is your response to James Chadwick is saying?

ROBERT SAMPSON: I think he is saying you’ll get less plea bargaining. I think that’s what he is saying. I’m just wondering if that actually helps with the public’s perception of the judicial system which, frankly, is not all that high now partly because of things like plea bargaining. People being able to bargain down in some sort of a market the crime in which they originally committed.

ANNA MARIA TREMONT: But plea bargaining does actually serve a purpose, does it not? In the wider criminal justice system…

ROBERT SAMPSON: I’m sure it serves a purpose for the criminal justice system but I’m arguing that it probably doesn’t help with people’s perception of how that system is dealing with crime.

I understand what it does in the criminal justice system. I understand that it lowers costs. I understand that it moves cases through the system quicker but sooner or later the public’s perception of the criminal justice system needs to be looked at. I don’t think plea bargaining in a mass form helps that.

ANNA MARIA TREMONT: Eric Sterling, how do you respond to what Mr. Sampson is saying?

ERIC STERLING: What Mr. Sampson is saying seems to be very different than what I thought I was hearing from the parliament. These mandatory-minimums were to target organized crime chieftains and make sure they got the harsh punishment that they deserved.

There’s a confusion here, it seems to be, about who this legislation is even supposed to be targeted at. Mr. Sampson seems to be saying that the low-level offenders who we need to rehabilitate – they’re the target for these sentences so they can be rehabilitate. Parliament is saying these mandatory-minimum sentences need to be harsh so we deter high-level traffickers and organized crime figures from continuing the trade.

It doesn’t make sense. Somebody is not telling us what’s really going on here.

ANNA MARIA TREMONT: Robert Sampson.

ROBERT SAMPSON: The legislation applies to every Canadian who commits a crime whether it’s a low-level offender or the boss. But it’s easy to get the little guy as Mr. Sterling has said - the low-level offender.

ANNA MARIA TREMONT: Mr. Sampson, Eric Sterling makes the point that there’s a disproportionate number of African-Americans in U.S. jails and, of course, there’s a disproportionate number of Aboriginal Canadians in Canadian jails.

ROBERT SAMPSON: Yes. That’s a fact that can’t be ignored. Will this particular legislation add to that number? I don’t know.

ANNA MARIA TREMONT: The critics say it will. Eric Sterling, I’ll give you the last word.

ERIC STERLING: I have to say this is the first time that I’ve heard mandatory-minimum sentences being justified as a rehabilitative measure. Almost always they are harsh and I can only speak from our experience here that it has been a terrible tragedy for the American justice system.

ANNA MARIA TREMONT: We have to leave it there. Gentlemen, thank you both for weighing in on this.

I’ve been speaking with Eric Sterling. He’s a U.S. attorney who helped draft the mandatory-minimum bill in the U.S. as he sat as legal counsel for the house judiciary committee in the 1980s in Washington D.C. He is now involved with Families Against Mandatory-Minimums.

Robert Sampson is a former Ontario Minister of Corrections under the conservative government of Mike Harris. We reached him in Bamf, Alberta.

I’m Anna Maria Tremont. This is The Current.

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DEAN BECKER: Thank you Anna Maria Tremont and The Current. You know folks I bring you these programs from other producers because these drug warriors still after nearly 11 years of the Drug Truth Network cannot come on the airwaves with me as the host.

The reason why? Long-term listeners know that I’d slather on a bunch of barbeque sauce and turn up the heat.

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MICHAEL BOSTWICK: My name is Dr. J. Michael Bostwick. I’m a Professor of Psychiatry here at the Mayo Clinic in Rochester, Minnesota. The title of my paper is “Blurred Boundaries: The Therapeutics and Politics of Medical Marijuana.”

This article will be appearing in the February 2012 issue of Mayo Clinic Proceedings.

The reality is that marijuana has been used for almost 5,000 years both medically and recreationally. So there’s nothing new about it. It’s also true that in the U.S. it was on the national formulary for a hundred years until about 1942.

In 1970 it was made a Class I Substance which means it has no medical value at all and is simply a dangerous drug. This is fascinating to me because at that point, 1970, we knew very little about the endocannabinoid system in the body on which marijuana works. We knew very little about the receptors of which there are two. And all this research to clarify this system which is as important as the opiate system in the body happened over the next 25 years with no change in the stance of the federal government towards marijuana.

In the ‘90s California followed by, I believe at this point, 16 states legalized marijuana’s use however the state laws are in direct opposition to the federal law which sets up all kinds of really problematic things.

From a scientific point of view the biggest problem is that the federal government has made it essentially impossible for research to occur in the U.S. This is especially sad because the basic scientific discoveries that have found the endocanabinoid system and the receptors can’t be translated into potential clinical implications which could affect everything from psychiatric drugs to gastrointestinal drugs. So they’re kind of at a standstill.

Now right now at this moment, in fact, the federal government and the state of California are upping the ante in terms of this discrepancy in the laws. The federal government has been conducting raids in California and California is a state in which the use of medical marijuana is entrenched.

Now that is a state as well where there’s a lot of discuss about whether the use of medical marijuana is actually giving people drugs for fun. Which brings us back to the title of the article and the purpose of the article which this issue of blurring of boundaries and how do we sort that out so that we can get the most benefit from something that potentially could revolutionize therapeutics.

From another therapeutic point of view the fact that there has not been the possibility of fully developing the potential for this drug in the lab means that we cannot see if we can develop agents that would be very helpful in multiple different organ systems and multiple different specialties.

It means different things for different patients. It also means that if they are using marijuana they are using it in a crude form. That is smoked marijuana which actually contains many cannabinoids and we really don’t understand very well how they all interact. There are other active agents besides tetrahydrocannabinol.

For people who have experience with using it recreationally that often works very well for them when they are medically ill. So a baby-boomer who experimented with marijuana in the 70s or the 60s and now has cancer might very well be able to use it and not be bothered by the psychoactive effects. People who have never had any exposure to the recreational use of the drug find those side effects to be noxious. So you have an interesting situation where the psychoactivity which people seek to get high may be problematic and unpleasant in the medical setting.

From a psychiatric point of view the situation is also rather complicated because there is good evidence that while it does not cause psychotic illness such as schizophrenia it does cause it to perhaps appear earlier in individuals who are susceptible and for those who continue to use it the course of the psychotic illness is rougher and more difficult both for them and for their families and providers.

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DEAN BECKER: Hi, this is Dean Becker. You’re listening to the Century of Lies on the Drug Truth Network. We’re tuning in to a recent report from Dr. J. Michael Bostwick, a professor Psychiatry at the Mayo Clinic.

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MICHAEL BOSTWICK: There is not going to be a simple, easy answer to this set of medications but that should come as no surprise. The analogy being to several other classes of medications that we use that also are drugs of potential abuse. One example would me morphine and all the products related to it, Heroin is a street drug. Morphine is a life saver as are many of the other opiates.

Likewise we use stimulants for treating disorders like Attention Deficit Disorder. Cocaine in its pure form is used in surgery for its vasoconstrictive qualities. So it’s not as if marijuana is the first potentially abusable drug to come down the pike. We have many examples of other drugs that have their close cousins that are being used on the street.

My point being this is not new. The paradigm for studying marijuana and making it usable medically while also paying proper respect to its dangers as an addictive substance and as a recreational substance – we’ve done that before with other drugs and we’re managing is right now.

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DEAN BECKER: Well, how long do you think the United States and therefor the world will be frightened of the weed from hell?!

I want to remind my dear listeners that there’s no reason for this drug war to exist. We have been duped. Please visit our website, http://endprohibition.org. Do it for the children. Prohibido istac evilesco!

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

The Century of Lies.

This show produced at Pacifica Studios at KPFT, Houston.

Transcript provided by: Jo-D Harrison of www.DrugSense.org