Eric Sterling founder of Criminal Justice Policy Foundation describes his work with the US Congress in escalating the drug laws.
Cultural Baggage Radio Show
Wednesday, October 7, 2020
Criminal Justice Policy Foundation
Tue, 10/06/2020 - 00:17
DEAN BECKER Once again, we're speaking with one of my buds, a gentleman I've known for about 20 years now. He, uh, headed up the criminal justice policy foundation based there in Washington, DC. He's now become a commissioner of sorts and we'll have him tell us a little more about that, but, uh, I want to welcome my friend, mr. Eric Sterling. How are you, sir?
ERIC STERLING: And great. Thank you. Doing very well. And it's good to see you. You're looking hale and Hardy.
Dean Becker Well, thank you for that. Yeah. And this time of COVID, that's a good thing to still be persevering. Isn't it. Uh, now Eric will tell us about this new job, the commissioner's job. How's what is that going to entail?
Eric Sterling; I live in Montgomery County, Maryland. It's the largest jurisdiction in Maryland. Uh, about 1.1 million people it's much bigger than Baltimore, bigger than Washington DC or any of the other counties. And in Maryland, our County council, responding to the crisis in policing that we're experiencing all over the country, created a 13 member policing advisory commission. And last week, uh, I was, uh, selected and appointed to be one of those 13 commissioners we have not yet met. So I'm really not in any position to say anything more about exactly how it will function or what it will accomplish. Um, what I told the co of the County council in my interview is that, um, number one, uh, we don't want to have any more people killed by our police. Uh, number two, we want to reduce the fear that our community has of the police. We want everyone, whether you are LGBTQ or an immigrant, or from whatever background to feel comfortable and safe, uh, working with the police, uh, reporting crimes that they may be the victims of the police feeling that they are honored and respected, uh, when they report crime and report to the police, that they feel that if they need to make a complaint, their complaint would be taken seriously.
We're going to need to be able to operate in the many, many languages that are spoken by our widely diverse community.
DEAN BECKER You mentioned the house judiciary committee, that's an organization you worked for in the past. You were a, um, an assistant or a helper to go ahead. And so, so
ERIC STERLING: Dean, your, your, your memory is good from 1979 until 1989. I was assistant counsel to the house judiciary committee first for the criminal justice subcommittee and then for the crime subcommittee and those subcommittees have been merged. Uh, so now it is the subcommittee on crime and terrorism and oversight. When I worked there, um, I was responsible for gun control and which was a big issue from Rodino.
And so I, I worked for, uh, Rodino on the gun control issue. I worked on pornography, uh, at a time when attorney general Meese had his pornography commission. I had worked on money laundering at a time when, uh, there wasn't yet a federal law on that. And we investigated money laundering in gambling casinos and wrote legislation on that. Um, I helped write the legislation, creating the president's commission on organized crime, but most importantly, I worked on, uh, drug legislation throughout that period, conducting numerous oversight hearings of the drug enforcement administration, writing legislation to increase penalties, increased DEA powers, um, uh, amending the controlled substances act in a, in a variety of ways and, and helping to, uh, create the, the drugs czars office. So during, during the years that Ronald Reagan was the president and the modern war on drugs was ramping up. I played a really central role in the Congress in, uh, how that all developed,
DEAN BECKER: Which brings to mind, um, you know, I would like to get your thoughts, your memories of that time and, and, uh, how it all ramped up. And I heard it was like a bidding war. We'll go harder than that. We'll go further than you. Um, that, uh, both parties were trying to outdo one another. Tell us about that frenzy, if you will.
ERIC STERLING: The dynamic was that drugs became very quickly a partisan political issue. Um, and I was as much involved in that as anybody when president Reagan came in in 1981, he wanted to cut the federal budget and the office of management and budget proposed cutting about $300,000 out of DA's budget. This is a infinitesimally small amount of money. The TA at that time, their budget was less than $180 million. And, you know, it's more than $2 billion now, just to give you a sense of its growth. So as soon as the president announced that he was going to, uh, ask to reduce the sum of DA's programs, we as Democrats are left to the attack and I helped write the, uh, talking points for those attacks, uh, on, uh, the precedent and his cutting of our anti-drug effort. Um, in legislation, when the question was how much money should be appropriated for some anti-drug program, there was partisan competition for being tougher.
Um, and that's the kind of thing that you're talking about. Um, there was, uh, anti, there was prison construction money in particular in 1986 that I recall where we started out with, uh, some small son and amendment would be offered, and that would be amended then by the other side, to be larger, the other side, the first side would seek to increase that amount. And so it had without sort of any sort of sense of how many prison beds might this be paid for? How many might we need, what might be meaningful in effecting a federal prosecution policy, or what might be meaningful in effecting the market for the drugs they're trying to control? None of that was really driving this. It was all very much about partisan perceptions. It was also driven by the individual ambitions of individual members who wanted to establish their reputation as tough on drugs and tough on crime.
Um, and that was a very, uh, that was a very important piece of how, uh, policy was being made. Um, I'll give you one anecdote that I think explains this at one point, uh, there was a, uh, a law that w so there had been, um, with respect to federal prisons, one crime that said, if you possessed a firearm in prison, you got punished this way. And then there was another, uh, crime that said, if you brought contraband into the prison, you got punished this way, and contraband would be defined in some way. There was an effort then to sort of say, look, all of these contraband weapon drug things should be organized coherently, so that the punishment makes sense. So, for example, if you possessed currency, uh, when you shouldn't have, then maybe that's a misdemeanor, and if you possessed a knife, maybe that's a one year offense.
And if you had a firearm, maybe that's five years, um, and I forget maybe drugs was like three years. And so, um, Senator Phil Graham from Texas in, uh, I think it was in 88, uh, came up with the idea that if you possessed, um, LSD or heroin or cocaine, you get sentenced to 20 additional years in prison. Now at that time, the penalty, if you possessed a bomb or rocket or grenade, it was like another 10 years. And so what I said to the Senator staff, I said, this doesn't make any sense. Surely we don't think that, you know, for an individual to possess drugs in prison is a more serious offense than possessing a bomb, a rocket or a grenade. And, and, and he says, look, that doesn''t matter, this is the senator's amendment. We're not changing it. It's gotta be in the bill just as he wrote it, even though he picked this number 20 years completely out of his, but, you know, that's your, that's the reality? You know, it, wasn't part of like, let's figure out why, where does this coherently fit in with other kinds of crimes that we're trying to control?
DEAN BECKER: No, this, um, I don't know. I think historically it just, it's like a contagion that the attacks, the Congress, that when they did the Boggs act, I think in the fifties, there was a similar set of escalations, and we can outdo the other party and so forth. And, and it seems to, uh, I don't know, every 10 or 20 years it did this contagion of, of punishment seems to, uh, uh, sweep the Congress. Now you mentioned that, uh, they didn't care how many prison beds there were or what the need was. And it kind of fills that equation that if you build it, they will come, so to speak. And the, the prisoners certainly did come. We became, uh, the most incarcerating nation in the history of the world. Did we not?
ERIC STERLING: Well we have, but it was not. It was not quite that. What happened was we built, excuse me, we prosecuted much more rapidly than we had the prison space for, um, the, the, the enforcement agencies and the, and the justice department just went bananas in increasing the number of prosecutions. In 1986, Congress passed a major law called the anti drug abuse act after Maryland basketball star, Len Bias died. Then I think he signed with the NBA champion, Boston Celtics, and that event, uh, kicked off, uh, a huge legislative effort. Um, the speaker of the house that Tip O'Neill from Boston said, I want all the democratic committees to participate in writing an omnibus anti-drug bill, and we're going to get it through the house. We're going to get it through the Congress. Democrats are going to establish their reputation as tough on drugs. And we're going to use this to retake control of the U S Senate and the November, 1986 election.
And that was an effective strategy. The Democrats did retake control of the Senate in 1986, but the price was this enormous legislation that established mandatory minimum sentences for small quantities of drugs, of, of 10, uh, 10 to 40 years minimum for some crimes, and to be five to 40 years minimum for some crimes or 10 years to life. And so people could get life sentences for a relatively small quantities of drugs, uh, the way in which this worked. Um, and so there were 36,000 people in federal prison in 1986 that quickly just shot up over a hundred thousand, over 200,000, um, under the Obama administration and went as high as 213,000. It's dropped back a lot. Now, the last I saw it was on the range of 170,000, but these are still a huge numbers compared to what they used to be. And the American prison incarceration rate is the greatest in the world. The number that we incarcerate is, you know, it far exceeds any other nation in the world of it. We have about 4% of the world's population, but 25% of the criminals behind bars around the world are behind bars in The United States.
DEAN BECKER: Well, this, this brings to mind, um, the crack cocaine disparity. And if I recall it was five grams of cocaine, excuse me, five grams of crack would get you the same penalty as a a hundred grams of regular cocaine,
ERIC STERLING: It was a 100, it was a 100 to one quantity ratio.
DEAN BECKER Wow. That was primarily waged against the black community. Who much preferred the crack over the powder cocaine.
ERIC STERLING: Oh, are you saying, hold on, the black community does not prefer crack. This is, this is a, another piece of bullshit that has floated into the discourse, or look at the data. White Americans are the largest numbers of users of crack cocaine, not African Americans. Uh, crack is attractive to all people who try it and use it. Um, in the late eighties, there were open air crack markets that were tolerated by the police in primarily black communities. Crack was being sold in white communities in bars and hotels and in wall street, uh, restrooms and Hollywood and truck stops. There was plenty of crack being consumed by whites, but there were open air markets on the streets that the police tolerated in black communities. And there were raids. The most important thing then to recognize is that the U S just department justice department, when it came to cocaine enforcement overwhelmingly focused on blacks and the quantity trigger of five grams triggering a five year prison term five grams is like five little Sweet and Low packets.
It's about the weight of a nickel. It is a in the, it's a completely insignificant amount. When you think of what the role of the us justice department should be, which is to focus on the highest level traffickers, which was the intent of the Congress. In 1986, Congress made a huge mistake and I was central in how that mistake got made in originally, when the idea was let's target the highest level traffickers. So the justice department would focus its resources where it should, not on street level offenders, where, because every Sheriff's department has a narcotics division. Every city police department has its narcotics squad. You know, every state local government can go after the street level traffic, but they can't go after the international traffickers who make sure that the street level dealers never run out of supply countries like Colombia and Mexico suffer from such problems of corruption and institutional weakness.
They are incapable of really effectively taking down the high level traffickers the us justice department with the assistance of the CIA, with the assistance of the military, with its global resources can do the money, laundry investigations and the surveillance and indict and get extradited these high level traffickers. But the justice department instead focused, overwhelmingly on street level dealers on people who were lookouts on the street corner, people who were counting on their speakers, Hey, want to get high. I mean, or targeting the men and women who would like unload a boat or unload an airplane. And these people were getting kingpin like sentences of 30, 40, 50 years. These were overwhelmingly in the case of crack African Americans. It is like a ratio of 10 to one. I did some gap analysis. If you look at how many months in prison would you get for a gram of crack versus a gram of cocaine, the low level African American drug traffickers were getting a 300 times longer sentence. If you look at months per gram.
DEAN BECKER It's, uh, no, look, the, um, the killings of the, the, the black people by the cops has certainly, uh, agitated a lot of folks black lives matter as I'm protesting the country.
Um, and I, I want to kind of bring focus to the fact that it was this fear of druggies that gave us SWAT teams it was, this fear of druggies that gave us the no knock raids. Uh, and as you say, it brings, it gave us the mandatory minimums. Um, it gave us the three strikes, uh, situation, uh, and, um, the stop and frisk in New York, it's there are unique punishments derived put forward and promulgated, uh, wrapped around drugs. We'll talk about that. Would you please,
ERIC STERLING; there are a couple of ways to sort of recognize this because the prohibition strategy is not capable of stopping people from using drugs and not capable of stopping people from selling drugs. Prohibition is first of all, a price support mechanism for being in the illegal drug business. It drives up the price. The harder drug enforcement works to try to make drugs expensive, the more attractive, and the more profitable it is to go into the business, the greater the success of drug enforcement, the more profitable it is to be a drug trafficker.
When, when the heads of DEA with testified before me, they would say our goal is to raise the price of drugs, to stop people from using drugs. Well, what happens is, as drugs become more expensive to the user, they have to work harder and harder to scrape together the money because, um, they're in so many cases, there are so many barriers to getting into treatment, simply raising the price, doesn't get people into treatment, but it does make the industry continually attractive. And so as it, so is that a matter of economics, it's an illogical way of trying to suppress the drug trade. So in this situation where the drug trade isn't stopped, no matter what is done, then the language becomes, we need to give law enforcement more tools or quote, better tools. So those become so, so police would sort of say, well, you know, we've got a green light to bring forward ideas.
What are the various obstacles we have? Well, an obstacle is the need for a search warrant. The obstacle is the need to present the search wine in a constitutionally effective way, which is to knock on the door and say, announce, we are the police. If you don't open up, we're coming in rather than just breaking in to sleeping homes in the middle of the night. And I know knock situation or, um, say, you know, we're because, because the drugs have been made so much more valuable by drug enforcement and drug prohibition, they're worth a lot of money. So, um, if you have a stash of drugs in your stash house, you need to protect them from being robbed. So you have a gun because criminals, when they steal drugs, they don't have it. It's not like a discount for a hot TV set. It's only worth $50 or a hot stolen cell phone or stolen laptop.
That's only worth a few dollars instead of what it costs retail, the retail price of stolen drugs doesn't go down, right? So they're defended by the people have them. So the cops say, well, look, the drug dealers have guns to protect their drugs. We need SWAT teams. We need to be able to sort of break down the door disorient the people in the home throw in a flash bang grenade, come in with semiautomatic weapons, body armor, helmet, look like the military because they might have guns. Of course they structure the situation. So they come in the middle of the night, people say, who's breaking in, in the middle of the night. It's got to be somebody who's going to harm us. they've not announced themselves as the cops. So people sort of say, here are a bunch of people in the dark.
I don't know who they are. They just broke down. And I see it. You know, they're, they're putting guns, I'm going to pull out my gun and defend myself. And the cops shoot back. You'd kill the people and tragically because of the inefficiencies of the way the police work. There are bureaucracy relying upon informants who may not be accurate or telling the truth, or that may have powerful motives to lie. Hey, too frequently go to a house where there's no drugs ever, they've been given an address, that's the wrong address or they, their surveillance was it. They didn't bother to do the surveillance. And so they, they took people of all ages from most senior citizens to babies, people, you know, people in their dogs, Briana Taylor, and move all these, these kinds of cases are not infrequent. They are frequent. They are frequent. There are, you know, in the course of a day, hundreds of these raids around the country taking place, you know, um, where, uh, this is simply the work of the SWAT team, executing warrants as part of the effort to address the problem of drugs, which can't be addressed effectively using drug enforcement.
DEAN BECKER And it's, as you say, It's probably hundreds a day. Uh, there was one, I don't know if you heard about it was here in Houston, the Harding street bust where the cops, uh, kicked in the door, uh, shot the, the man and woman and the dog, somehow the police wounded each other, uh, four officers wounded, each other shooting through the walls of the house. Um, and it turned out that they, they had, uh, fabricated, uh, the search warrant. They had fabricated a drug buy that. There was just really no, um, evidence or reasons or rationale behind this particular raid. And it's creating a major, um, shitstorm lack of a better word here in Houston, um, because it's exposing the tactics of the drug squad itself. And, uh, the fact that it's so often overlooked, uh, allowed to proceed, allowed to continue despite these failings and, uh, uh, you know, drug money was missing and all kinds of things.
ERIC STERLING: And so what you're pointing to of course, um, Dean is that at the, at the street and neighborhood level, this is a tragedy. And we look at the mismanagement, the dishonesty in effectiveness, my perspective was of course the other side I was sitting as in Washington, DC at the Capitol as these laws are being conceived of, and I'm watching the conception and these laws are not driven out of well analyzed problem solving approaches. These laws are being driven out of emotionality out of political ambition. They're being driven out of hatred.