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The failed politics of sentencing reform

In his exceptional white paper, American drug policy expert Eric Sterling of the Criminal Justice Policy Foundation sets the stage for comprehensive sentencing reform, describes the current situation involving the War on Drugs, and critiques Federal drug law enforcement and its tragic misdirection.
Charles Shaw
7 June 2010

There are very few people who posses the caliber of bonafides as Eric Sterling. For those of us in the drug and criminal justice reform movements, Sterling is one of our heroes.

Sterling served as Counsel to the U.S. House of Representatives Committee on the Judiciary from 1979 until 1989. He was responsible for drug enforcement, gun control, money laundering, organized crime, pornography, terrorism, corrections, and military assistance to law enforcement, among many issues. But what he's best known for is his role in developing the Comprehensive Crime Control Act of 1984, the Anti-Drug Abuse Acts of 1986 and 1988, and other draconian pieces of legislation that created the cocaine/crack discrepancies, filled our prison systems, and denuded two full generations of African Americans.

The heroic persona arose when Sterling realized the error of his ways, and of these policies he had helped create, and began to speak out against them. One of the first things he did was explain why the 1984 and 1986 legislation had been passed.

By the mid-1980s, in the midst of the crack cocaine epidemic, the US Government responded to the drug crises with a new collection of Federal laws that gave the government unprecedented powers. In 1986 the first twenty-nine Mandatory Minimum sentences were put into law, including the first laws that differentiated between crack and powder cocaine. Under these guidelines, possession of up to 5 grams of crack, a very small amount of a drug almost exclusively used by poor Blacks, resulted in a mandatory five-year sentence. Possession of up to 50 grams got you ten years. Contrast that with powder cocaine, much more expensive and used primarily by Whites, which required 100 times that amount, 500 grams, to earn the same five year sentence, and a whopping 5000 grams to get ten years.

Sterling revealed the behind the scenes story when he explained that these laws were a blatant political move by the Democratic party to look tougher on drugs than the Republicans by taking advantage of the 1986 cocaine overdose death of college basketball star Len Bias.

Bias died only 48 hours after he had been drafted by the Boston Celtics in the first round. He was viewed as a potential talent on the order of Michael Jordan or Kobe Bryant, a franchise player who was to be the anchor of the next Celtics dynasty. His death caused mayhem in Boston as Celtics fans were “consumed with anger and dismay and the papers were “screaming for blood.” (Smoke and Mirrors : The War on Drugs and the Politics of Failure by Dan Baum)

It helped that the Speaker of the Democrat-controlled House and the most powerful man in the Democratic Party was Massachusetts Congressman Thomas P. “Tip” O’Neill, who also hailed from Boston.  The biggest irony in it all is that Bias died from a heart condition made worse by snorting powder cocaine. He never touched crack.

With a clear legal and punitive distinction drawn between powdered cocaine and crack cocaine, within a few years it became clear that Blacks were being disproportionately sentenced for cocaine offenses. By 1995, not a single  white person had been prosecuted in federal court under the 1986 crack mandatory minimums, although hundreds of blacks had been. This piece of legislation would have the most profound impact on Federal drug spending and the Federal prison population of anything passed during the “War on Drugs.

Since coming out against the War on Drugs, Sterling has traveled to South America, Europe and many parts of the United States to examine the crime and drug problems first hand.His advocacy work in this arena is nearly unparalleled. Sterling is the president of the Criminal Justice Policy Foundation and helped found FAMM -- Families Against Mandatory Minimums, FEAR -- Forfeiture Endangers American Rights, the Marijuana Policy Project (MPP), the Voluntary Committee of Lawyers, and the Interfaith Drug Policy Initiative. He serves on the boards of Partnership for Responsible Drug Information, Students for Sensible Drug Policy , the Andean Information Network, Law Enforcement Against Prohibition (LEAP), DrugSenseDrug Reform Coordination Network (DRCNet) and the Flex Your Rights Foundation.<

In his paper, delivered in June of 2009 for a 25th anniversary forum on the Sentencing Reform Act sponsored by the Congressional Black Caucus, Sterling sets the stage for comprehensive sentencing reform.

"Drug enforcement dominates federal criminal justice activities and federal punishment," he writes. "We must think and talk about drugs in a new way: honestly. We need to appreciate the consequences of lifetime criminal records for re-entry of ex-offenders into the economy, and the deep economic cost of our over-criminalization approach to public safety and health."

Sterling reviews the social, political and legislative history behind anti-crime legislation and the Sentencing Reform Act in the 1970s and 1980s. He discusses in detail cocaine use, markets and violence, which led to the 1986 mandatory minimum drug sentences. Finally, he describes the current situation involving the War on Drugs, and critiques Federal drug law enforcement and its tragic misdirection.

"The Failed Politics of Sentencing Reform: Seriously Rethinking Federal Sentencing Policy" by Eric Sterling...

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