Eric Sterling is the Exec Dir of the Criminal Justice Policy Foundation in DC. We discuss needless fentanyl deaths, congressional oversight of drug penalties and the Washington Posts failure to focus on fact over fiction.
Cultural Baggage Radio Show
Wednesday, October 2, 2019
Criminal Justice Policy Foundation
Tue, 10/01/2019 - 09:39
OCTOBER 2, 2019
DEAN BECKER: I am the Reverend, Dean Becker, keeper of the moral high ground in the drug war for the world and this is Cultural Baggage.
Hi folks this is Dean Becker, the Reverend Most High. Welcome to this edition of Cultural Baggage. We’ve got a great show lined up for you. Today we are going to talk with one of my oldest friends in drug reform. A man I have respected and admired for well over a decade – approaching two decades now. A man who worked for the U.S. Congress who was on the floor when they wrote some of these laws. A man who helped compile those laws and helped bring them forward. With that I want to welcome the Executive Director of the Criminal Justice Policy Foundation, Mr. Eric Sterling. How are you doing, Eric?
ERIC STERLING: Hello, Dean. How are you? I am fine and hello to all of your listeners around the world.
DEAN BECKER: Well thank you, sir. Eric, if you would please tell the folks a little bit about the work you did with the congress back in the 80’s.
ERIC STERLING: From 1979 to 1989 I was the attorney in the House Judiciary Committee who was previously responsible for overseeing the DEA and writing the federal drug laws. As an attorney, I was representing my client. What we accomplished wasn’t necessarily what I would have done if I had been elected to congress but I was just an attorney who worked for the House Judiciary Committee trying to best serve my clients; the members of congress.
We wrote many different pieces of legislation on drugs, gun control, pornography, organized crime, money laundering – all of those laws are things that I played a major role in helping to write. In the drug area has been the most tragic and long lasting effects. In 1986 when Maryland basketball star Len Bias died from a seizure from his cocaine use the democratic leadership of the congress saw this as a political opportunity to take advantage of his tragic death by writing legislation because of the public’s alarm around cocaine and crack use that was developing so the major thrust at it were ultimately mandatory minimum drug sentences that were then subsequently misused by the Justice Department. Congress had hoped that we were going to target the highest level traffickers to encourage the Justice Department to refocus on the highest level traffickers but that didn’t happen. We mistakenly defined the high level traffickers using small quantities and the Justice Department then used those low quantities as the thresholds and hundreds of thousands of low level offenders, especially low level crack offenders got sentenced to many decades in prison – far longer than they deserved.
I left the Congress in 1989 and soon started a group called Families Against Mandatory Minimums that still is a very effective organization working to reform mandatory minimums and I have worked on many other efforts over the last 30 years to end the war on drugs.
DEAN BECKER: Yes sir, and with that friends you understand why I try to emulate the mindset of Mr. Eric Sterling. Eric, I have got to say over the decades since the states have paralleled that same course, they have set their own mandatory minimums; they’ve set up three strikes laws; they’ve set up asset forfeiture and in place at the federal level as well. In every way possible laws have been set in place to “punish” drug users, drug sellers to the maximum extent possible. Would you agree with that though sir?
ERIC STERLING: Yes. That is correct. There have repeatedly been waves of fear going back to the early 20th century that focus on people who were defined as fiends – some of the classic examples of this were the Reefer Madness motion pictures and books and testimony of the 1930s but these have been repeated again with the dangers of LSD, the dangers of heroin, the dangers of crack, the dangers of meth, currently the dangers of Fentanyl. There are front page stories that are hyped. In many cases they are wholly exaggerated, that is not true with Fentanyl --
DEAN BECKER: Can I interrupt you. This brings to mind the reason why it sparked my interest in calling you this week. Recently there was a story in the Washington Post I think it was titled, “Flailing on Fentanyl”, and it blamed congress for “failing to address the exploding Fentanyl overdose epidemic”.
You had a letter to the Editor in response to that titled, “Failing on Fentanyl”. Who you elaborate on that letter to the Editor for us please, Eric?
ERIC STERLING: Sure. So first to get your listeners an appreciation for this story. The Washington Post on Monday, September 23 in the print edition. Maybe a quarter of the front page was devoted to this story. On Above the Fold, there was a story two columns – Trump suggests he spoke of Biden in the Ukraine call. Another explanatory story, Ukraine is again thrust in to American politics but most of the top of the front page is “Flailing on Fentanyl”, there’s a big photograph and the caption on top is, “overdose deaths soared among their constituents. Congress didn’t act despite dire warnings about the powerful opioid”. The story then jumps and then there are three pages inside including huge photographs of bodies lying in the street and so on. All of which sort of saying this whole thing happened because Congress didn’t act and I was infuriated because it was such an absurd story on a couple of levels.
The premise was we needed to start punishing Fentanyl traffickers. That somehow the trafficking in Fentanyl wasn’t even a crime. Now Fentanyl trafficking in the 1986 law it was a felony that could get you up to 20 years in prison, if you trafficked the littlest amount of Fentanyl. If you traffic in 40 grams of a substance that contained a detectible amount of Fentanyl you got a minimum of five years up to 40 years. If you trafficked in 400 grams or more you got a minimum of 10 years up to life. That was part of the 1986 mandatory minimums and that was only if you had a first offense. If you had any kind of prior offense from another country, from a local offense – just a marijuana possession offense – then the minimums were doubled and the maximums were doubled. To get that 40 grams or the 400 grams any number of transactions that you are involved in could be accumulated. If you sold 10 grams four times, you got that 40 gram threshold. If you sold one gram on 40 occasions you got to that 40 gram threshold.
So the government had very powerful laws to punish Fentanyl traffickers, importers, manufacturers so the premise of the article was false. It wasn’t as though those laws were inadequate to enable the government to prosecute people who are flooding the country with Fentanyl. Further, in 1994 when Congress created the death penalty for drug offenses, if you trafficked in 24 kilos of Fentanyl you could get the death penalty under federal law. So the bottom line is that the job of enforcing these laws of course is the execute branch. They enforce the law. They know that there are drug problems. They are directed to respond to the drug threat. What is the drug threat? Well if people are dying from Fentanyl the manager of the federal agency should say okay we are the Drug Enforcement Administration, let’s go after people who are importing Fentanyl. Let’s prosecute them, let’s investigate them, let’s find out who is doing this. If we think that enforcement is going to work let’s put the agents on these cases that are killing the most people. Well that didn’t happen. I looked then at federal data from the U.S. Sentencing Commission that reports on who gets convicted of what federal crimes. Out of all of the people who get convicted under federal law for federal crimes a tiny fraction were being prosecuted for opioids year after year. It wasn’t at all clear how many were being prosecuted for Fentanyl at all but for marijuana it was still war on drugs and during this period from 2014 to 2018, 16,000 people were convicted of federal drug offenses – a huge waste.
DEAN BECKER: Eric is referring to federal marijuana charges here. We’ll be back in just a moment.
It’s time to play Name That Drug by Its Side Effects. Confusion; changes in breathing, heartbeat or blood pressure; unusual changes in behavior; agitation and irritability; worsening depression; suicidal thoughts; leaking or enlarged breasts; impotence; stroke; and death. Times Up! The answer: Latuda from Sunovion Pharmaceuticals, Inc. for depression.
DEAN BECKER: We now return to our discussion with the Executive Director of the Criminal Justice Policy Foundation, Mr. Eric Sterling.
ERIC STERLING: This is what the Justice Department and the DEA kept doing as thousands and thousands were dying every year from Fentanyl and that was one point of the story premise that was absurd. We didn’t need these new laws and the problem was not the fault of Congress but unfortunately when you are writing a letter to the Editor you don’t have much space.
Another very important point was missed which is that long sentences might not be the answer at all. Reaching out to people who are drug users and expanding treatment or doing harm reduction and expanding the amount of Narcan and Noloxone available. Providing Fentanyl drug testing strips and in a word thinking of drug users as human beings – as people whose lives were to be protected and to make the drug users the focus of your effort rather than thinking about the traffickers and whether or not we are going to crack down on them. In many respects that is the central part of the problem. We have blamed drug users, we have dehumanized them, and we fail to make them the focus of our programs of treatment and prevention and then when they have recovered to fully reintegrate them in to their society.
DEAN BECKER: Eric, thank you for that. That is a very strong perspective and adequate I am sure for most listeners out there but let me throw in another couple complications and that is Fentanyl – it’s small to import. In essence, you can bring in a gram, you could mail it in an envelope and that in essence when mixed with some other white powders and make up the five kilos of “quasi-heroin”. It is a very difficult drug to stop and we keep hearing stories that it is being used to accent actual heroin from time to time, that it is winding up in batches of cocaine which is a real mix up I am imagining. But the fact that you put that downer in with the upper and who knows how many people that could kill and I guess what I am trying to say here is that we have a very improper focus on controlling drugs. The idea that these are controlled substances is just ludicrous, is it not?
ERIC STERLING: They certainly aren’t controlled. They are the most out of control substances in the entire economy. If you think of anything that you come in contact as an American these days almost everything that you get that you didn’t buy at the farmer’s market has been subject to some extensive regulatory process. The labels and the ingredient lists at the supermarket are all covered by the Food and Drug Administration and the meats inspected by the Department of Agriculture and the advertising is regulated by the Federal Trade Commission. Aside from food your clothing, your cars – everything is covered by regulation and in some way controlled, except drugs. It is the greatest oxymoron in our language of this term “controlled substances”, they are so out of control. I think that when you identify the challenge of trying to control a drug like Fentanyl which is killing 10,000, 20,000, 30, 000, 40, 000 people a year that highlights the failure of the agencies with the responsibility of protecting the public from drugs in not doing their job. If it’s hard to find these grams then you sort of say look, we know nobody is being killed by marijuana, we know that state after state is legalizing marijuana. We are going to stop focusing DEA agents and grand jury’s and US attorneys and undercover informants on marijuana – we are going to stop all of that because nobody is dying from that. We are going to focus on Fentanyl. So if it’s coming in from Mexico, who is bringing it in? If it’s coming from China, who is bringing it in? We hire people who speak Chinese. We go in to China, we work on what are the ways that it’s coming in. You focus on a problem that is killing people if you care about the lives of the people who are dying but if members of congress cared about the lives of the people who are dying then it was their job to make the bureaucrats care about the lives of the people who are dying but the bureaucrats historically never have.--
DEAN BECKER: More draconian, more uphill.
ERIC STERLING: --It’s not a matter of draconian. They don’t care. Their focus is on catching who they think the criminals are. They think of drug users as bad people. They don’t think of drug users as people who might suffer from a disease, suffer from substance use disorder, the people who should be able to work and go to college and live in the site. No those are people who you want to drive out, you want to punish them in to sobriety and it’s a very different sort of view and if they die its sort of like buyer beware, caveat (UNINTELLIGBLE) their fault, their problem even if they are suffering from a compulsive condition such as a substance use disorder.
DEAN BECKER: I often hear cops and even family members some times when a person dies of an overdose to talk of it as well, they are better off dead. That somehow their life is unworthy of living as long as they are using drugs and that is just so wrong-headed, is it not?
ERIC STERLING: Well of course it’s wrong-headed. It would be like saying that about somebody who gets cancer or some other serious disease – oh well, they are better off dead because they had to spend so much time suffering in their chemotherapy or they were in pain. Trying to get treatment or thinking further back about what would be ways of helping to prevent people from getting cancer in the first place. Those would be of course what we would expect in a humane society but when we culturally demonize drug users, when we think of them as bad, evil vermin who are plaguing us – they are preying on us. A family member whose addicted son who has stolen money, took the T.V. out of the living room and hocked it for the money for drugs who has promised they wouldn’t use again and then they went back and used and said they weren’t high when they were high. Not incomprehensibly the families become fed up with people who suffer from addiction but we have laws and policies that make addiction worse. We don’t help people who are addicted manage their addiction and minimize their suffering. We don’t make the minimizing of suffering our goal. Our goal is they are not going to get better until they hit bottom so let the suffering commence.
DEAN BECKER: Yeah. Quick reminder, we are speaking to Mr. Eric Sterling, he is the Executive Director of the Criminal Justice Policy Foundation based in Washington, D.C.
Eric, a year ago I had the privilege of being invited to speak to the European Monitoring Center on Drugs and Drug Abuse there in Lisbon, Portugal, and I learned a great deal from them. I think they learned an amount from me as well. I got some hugs and kisses when I was done and then I got to meet Dr. Joao Goulao, the Drug Czar if you will of Portugal. He explained to me that in more than 20 years now they have diminished the amount of drug users and certainly the amount of overdose deaths by treating people with respect. If you’ve got a small amount of drugs you don’t even get arrested and I guess what I am trying to say here, sir, is that harm reduction deserves more respect. It deserves more implementation here in these United States. Am I right?
ERIC STERLING: It is beyond that. The entire correct approach to think about the drug problem is to think about it in the lens of harm reduction because we apply harm reduction in many other areas. If you go to the beach and you see a lifeguard on a lifeguard stand that is harm reduction. We know swimming is dangerous. We know that people go in to the water that don’t know how to swim. We know people go in to start swimming when they are drunk and we don’t save the guy who goes out there drunk.
DEAN BECKER: Yeah.
ERIC STERLING: We go out and we save everybody. We put a lifeguard on the beach because everybody’s life is worth saving. The essence of harm reduction is that people are many different places of our spectrum of how they are able to take care of themselves. Many people have been hurt and traumatized. We know that many of the people who suffer the most disturbing drug problems were victimized as children, they were victimized as adults, women have been raped and assaulted, and children have been neglected and abused. Drug use is often a way in which people are struggling to numb the pain that they feel because we don’t provide enough mental health care – because we are not minimizing harm. If people are using drugs then instead of punishing them and locking them up thinking they can be deterred or stopped, because those things don’t work. We know that you don’t raise well-behaved children by beating the child. You don’t raise a good dog by beating the dog. You reward good behavior – that is how you effectively raise a child and train your puppy. We’ve got an entire approach in public health and in law that is based on early flawed psychology. The historical origins of the idea of punishment come out of 5,000 year old text. The eye for an eye kind of approach of thousands of years ago before we understood psychology. Instead of using what we all understand is the effective and humane way of training, or training behavior and using the approach of compassion of people who are suffering. Those are the things our text teach us. The war on drugs is empathetic to our text and it’s built upon prejudice and the worst kinds of instincts in our nature and in our culture and unfortunately it’s because it operates as a way to maintain white privilege. It’s one of the remarkable features of the current response to the opioid epidemic is a sense that it is now at last universal. Instead of recognizing for decades that it was universal it was always perceived to be a problem of “those” people, of those “particular” people who were in fact subhuman people – bad people. That the majority of the culture perceived. We are moving ahead so that compassion and harm reduction are going to be driving drug policy increasingly in many parts of the country. Certainly that is happening here in the state of Maryland, for example, where I live and work. The Department of Health is actively using harm reduction.
DEAN BECKER: Look friends – some very important words from Mr. Eric Sterling. Again, he worked for the House Judiciary Committee, he helped write some of these laws. They were not written by him but for the DEA and other outfits that wanted to bring these laws forward. That work was done in 1979 to 1989. He heads up the Criminal Justice Policy Foundation. They are out there on the web at: cgpf.org. Eric, closing thoughts please?
ERIC STERLING: I encourage your listeners to continue their excellent work in writing to members of congress, writing to their newspapers, speaking to their local faith organizations and civic groups about the need to find effective solutions to the problems of addiction that are not based on hatred and on punishment and keeping the problem going.
DEAN BECKER: As we wrap it up here I would urge you to do what Eric Sterling indicated. Call your reps, write the paper, do what you can. Speak up at church – help make a difference to this eternal war on drugs and once again I remind you, because of prohibition – you don’t know what’s in that bag. Please be careful.
This is Dean Becker thanking you for being with us. I am a contributing expert with the James A. Baker III Institute for Public Policy. I am a speaker for Law Enforcement Against Prohibition and I am author of the book, To End the War on Drugs.
Cultural Baggage is produced at the Pacifica studios of KPFT – Houston.