Eric Sterling was the Assistant Counsel to the Subcommittee on Crime under the Judiciary Committee in the United States House of Representatives when Tip O’Neil was Speaker of the House in the 1980’s. During that time he was involved in creating the federal crime of money laundering and passing mandatory minimum legislation in response to basketball superstar Len Bias’ death from a crack overdose. He is now the founder and executive director of the Criminal Justice Policy Foundation in WashingtonDC and works with many of the nation’s most active drug reform agencies.

Q: What was your experience with the Mandatory Minimum legislation (MM)?

The MM’s were developed completely outside the way you usually consider legislation. [Usually] language is written down, a bill is introduced, it is circulated, a hearing is set, people come to testify about the pro’s and con’s and there is discussion in an open hearing, and then consideration in a formal hearing. This was all shortened to a three day window. There was no hearing. No language was circulated to the public. It was clear this was a going out of control thing to have these MM’s. Just based on quantities- quantities that just contained a detectable amount of cocaine.

Q: So if you had a bag of flour with a little cocaine mixed in, it would be sentenced as 5lbs of cocaine??

That’s right.

So during the process of mark up, of adopting language, it is formal. The chairman calls everyone to order, and I sat at the table as an attorney who is a clerk of the committee. My job would be to call the roll [for votes] for instance. My role in those meetings, I don’t speak, I was not like an attorney in the court room. If I have an idea, I write it down as a note and pass it to the chairman-that’s the way it usually worked. In this case, because of the situation, because it was moving so fast, I raised my hand. Never in nine years in committees had I raised my hand to speak. He recognized me, I said, “mister chairman, I am concerned that if we do not adopt a purity component, we will end up with a situation where accumulated street level quantities will get longer sentences that small quantities of purer drugs which will be indicative of a much higher rank in the distribution scene. So the chairman says, “Well, that’s a good point,” and he turns to the DEA representative in the room, Frank Schulz, we have a lot of respect for him, but he’s not been an agent. He asks would this be workable? Frank has never been an agent, never submitted a lab report, never submitted an arrest. He says “no, no that would be difficult- to study the purity of every sample.” But every sample is not just weighed, purity is done as a matter of course

“The War on Drugs is our most readily reversed, self-inflicted social problem.”

Q: Oh- So they do it anyway?

Not do it, they had alwaysbeen doing it, they did it, they were always doing it they were told however it would be a problem so that we end up with tremendous injustice as a consequence from this one factual misrepresentation by someone who doesn’t know under the press of time.

Q: And there wasn’t a DEA agent in the room?

That’s correct. That’s right… that’s exactly right…that’s right.

But anyhow, it passed. It passed the Congress, and it has been a tremendous catastrophe.

I increasingly was convinced that the War on Drugs was wrong. I could see that many members of Congress had no compassion for who drug addicts were, or the tragedy of drug abuse. This was a political issue; this was very, very cynical. I remember a hearing where a member of Congress said, “look, why are we worried about the heroin problem if they are all going to die from AIDS anyway?”

You can’t characterize them all one way or another. There are many who sincerely believe that longer and tougher sentences are a good policy. Others are convinced it is bad policy. There are some who don’t really care except for the opportunity to speechify about it, for whom it is cynical. In 1988 it was clearer that there was a greater sense among the staff, the people involved that this political enterprise was about the politics and not about solving the problem. The political positioning is now the paramount consideration. We have passed these laws, we have gotten new powers, we have spent new money. But we are not sitting back and doing a careful analysis and seeing if we spent the money the right way. We are now in a contest with our political competitors to say we’re doing more. If they ask for $100 million, we ask for $200 million, you have this sort of Sotheby’s auction to say I’m being tougher.

In 1986 we [the Democratically-controlled House] proposed for 20grams of crack-cocaine, a 5-20 year sentence. The Republican Senate then cut the 20g to 5g and moved the sentence to 5-40 years. That is an example.

There were Democrats who were neither honest nor principled who looked for cheap political advantage as well as Republicans, so policy was often not driven by wisdom but by political expediency.

Both parties would use it and inoculate yourself against the charge that you are soft on crime, by using tough rhetoric. But these were identified very much as party issues in 1984 and a lesser extent in 1986 because the Democrats had initiatives. These were things in the House Judiciary Committee I was involved in, with the top leadership staff. In the last couple days before the House adjourned for the summer the Republican members of the subcommittee forced us to consider mandatory minimum sentences- big time.

Q: One question, especially from the black community and drug reform advocates- how intentionally racist are the laws?

It’s not intentionally racist. Its not intentionally racist. It is unintentionally and indifferently racist. I have written about this some and thought about it a great deal. The principal…the drug problem is popularly viewed as a black problem, and it politically then reflects that it is a black problem, an inner city problem, different euphemisms are used. It is done somewhat cynically, not to hurt blacks, but to take advantage of anti-black sentiment. This is indisputably documented by David Musto in The American Disease, he is at the Yale School of Medicine. He tells the story of the passage of the first federal drug prohibition-the Harrison Narcotics Act of 1914. It was first introduced in 1910 and died. The southern Democrats took control of Congress in 1912, in the House and the Senate and they very deliberately said, we need to say this is a problem of blacks.

Now it is somewhat different. It is seen as a problem of the inner cities, it is characterized that way, a guy like Len Bias is seen as an example of this. In some sense this is a way to protect the black community from the scourge of drugs and many black legislators supported this legislation, they were the primary sponsors. So this was not done with an anti black agenda. But what has to be understood is that the whole enterprise is anti black in effect and that it helps to maintain white privilege. If you think about the effects of the War on Drugs, I believe the one success of the War on Drugs is to help maintain white privilege. Because the death rates since 1980 have more than doubled, The number dead has increased more than 300%. The availability of drugs to kids has not gone down. Since 1992 drug use has gone up, in the last fiver years, it has gone up. The ability of traffickers to deliver high quality products has gone up. So there are more and more high potent drugs at a lower price every year.

When I was a young kid I did some shoplifting and the manager of the store said to me and my parents, if I don’t make the honor roll every quarter this year, he would take me to juvenile court and I happened to make the honor roll every quarter that year. If I had been a black kid would that offer ever have been made? I don’t think so. It wouldn’t have occurred to him to give me that incentive. Do you think if I had been taken to court that I would have gotten into a first class college and gone to law school and become a lawyer? I don’t think so. It would have been a much rougher struggle. That’s the way white privilege works in our society- subtly. White privilege does exist in society and racism exists unconsciously. Its not “how can we screw the blacks?” it’s, “isn’t a shame that blacks are drug addicts? Isn’t it terrible so many are criminals, Don’t raise their kids up right…”

In Maryland, more than 90% of all the people in MD prison there on drug charges are black in a state that is only 25% black. Nationwide, the black rate of incarceration for drugs is more than eight times the white rate nationwide. In states like New Jersey I think it is as high as 20 times. It is overwhelming. For drug offenses as opposed to other offenses, the thing to recognize is that drug enforcement is what cops do. There are 1.6 million drug arrests each year. There are 700,000 arrests for all violent crimes combined. There are more marijuana possession arrests than there are for all violent crimes combined. About 38% of the people arrested for drug offenses are black. About 53% of those convicted are black. What happened in the courthouse? How did that number change? Blacks are much more frequently sentenced to prison than whites if convicted. The average black serves about 10 months in prison longer that the average white sentenced to prison. That’s mostly state data. Federal data- the fed government makes about 25,000 drug convictions a year. One of out of four is white and three out of four are black and Hispanic.

The LA Times was looking in the mid 1990’s- the crack-cocaine law from October, 1986- Mandatory Minimums for crack-cocaine, about 7 years later the LA Times noticed that in the federal court in Los Angeles, no white person had ever been prosecuted for selling crack-cocaine. You go to the Superior Court in California you see hundreds of whites prosecuted for selling crack, hundreds, but none in the federal court. They looked around and found that in the entire history of this law, no whites had ever been prosecuted for selling crack in cities all over the country in the federal court. Overwhelming. There is no explanation except racism. Unconscious racism.

Q: What determines whether someone will be sent to state or federal court?

The prosecutor decides. The DEA decides.

Drug enforcement is the only kind of law that is victimless, other than prostitution, where the cops get to decide how to do it. I was at a DEA Christmas party and a reporter asks an official, “Why do you like drug enforcement?” “Because the government gets to control the commission of the crime,” he says. I hear this and George Orwell rings in my head. The crime only exists when the government makes the arrest. If I buy drugs from you- who the hell cares? I want the drugs, you want the money. But if I am a government agent, I get to choose who to bust, I get to choose who to arrest, and when I want to arrest them. The government gets to control the commission of the crime.

Re: Market efficiency

The American drug market looks like the personal computer market. Dell will sell you a computer for $399 that would have cost over $3000 a few years ago and this one is faster and more powerful. When I was interviewing the DEA in 1980 they were bragging that they got the purity [of heroin found on drug dealers] down to 3% from 5% and that this was progress. Heroin is now five times more pure on average that it was in 1980 and the price, retail is $1000/gram less. It’s a third cheaper.

What you find is much more efficiencies in the drug trade. Drug enforcement is the means by which the drug trafficker becomes more efficient. You can’t advertise as a drug dealer, you don’t have any of the regular tools of the market place. It’s an extraordinarily inefficient market. What happens is the DEA picks out the more stupid, less ruthless people. It allows the most efficient, most ruthless, best competitors to move ahead. The DEA is the principal, evolutionary mechanism in the marketplace.

Re: Tougher sentences

They [drug store lobbyist groups] were trying to get Congress to make the robbery of a drug store a federal crime. Nobody who was going to rob a drug store with a gun and a mask is going to say, “Oh, well they made it a federal crime, I am not going to do it. I could face 20 in the state penitentiary and have the local police chasing me, but now that they are going to call the DEA and feds I should sweat it…” Criminals don’t think that way, they don’t engage in that kind of calculus, especially a street level robber or drug addict.

Q: Have you ever thought about advocating for more equal enforcement of the law so that more whites have family members in prison as a means for creating pressure to change the laws?

No, what happens is- people become isolated, they don’tbecome politicized generally. They shut down, they are ashamed, they keep quiet about it. If getting arrested politicized people we would already have a political army. One point six million arrests a year. Roughly one million are white. Millions have been arrested for drugs. We don’t have an army of millions. We have two million people behind bars right now- how many of their families are politically active? There are potentially four or five million people if you count parents and siblings and family. It is extremely hard to organize these people because they are profoundly ashamed. Ashamed their son sold drugs. You must smash the shame paradigm.