Interview: Eric E. Sterling

Eric E. Sterling
Eric E. Sterling was counsel to the U.S. House Committee on the Judiciary, 1979-1989 and participated in the passage of the mandatory minimum sentencing laws. Currently, he is President of The Criminal Justice Policy Foundation, Washington, DC and Co-Chair of the American Bar Association, Committee on Criminal Justice, Section of Individual Rights and Responsibilities.

There [have] been ... literally thousands of instances of injustice where minor co-conspirators in cases ... have been given the sentences that Congress intended for the highest kingpins. ... None of us envisioned that the Justice Department would so profoundly misuse this statute. Looking back now, how do you measure the success of your work enacting mandatory minimum sentences for drug offenses?

The work that I was involved in in enacting these mandatory sentences is probably the greatest tragedy of my professional life. And I suspect that the chairman of the subcommittee feels that way too. There [have] been ... literally thousands of instances of injustice where minor co-conspirators in cases, the lowest level participants, have been given the sentences that Congress intended for the highest kingpins. Families are wrecked, children are orphaned, the taxpayers are paying a fortune for excessive punishment. You know there's nothing conservative about punishing people too much. That's an excess. And it's just a waste. It is such a waste of human life. It's awful.

How did these laws come about?

These laws came about in an incredible conjunction between politics and hysteria. It was 1986, Tip O'Neill comes back from the July 4th district recess and everybody's talking about the death of the Boston Celtics pick, Len Bias. That's all his constituents are talking to him about. And he has the insight, "Drugs, it's drugs. I can take this issue into the election." He calls the Democratic leadership together in the House of Representatives and says, "I want a drug bill, I want it in four weeks." And it set off kind of a stampede. Everybody started trying to get out front on the drug issue. ... I mean every committee ... not just the Judiciary Committee--Foreign Affairs, Ways and Means, Agriculture, Armed Services. Everybody's got a piece of this out there, fighting to get their face on television, talking about the drug problem. And ... these mandatories came in the last couple days before the Congressional recess, before they were all going to race out of town and tell the voters about what they're doing to fight the war on drugs. No hearings, no consideration by the federal judges, no input from the Bureau of Prisons. Even the DEA didn't testify. The whole thing is kind of cobbled together with chewing gum and baling wire. Numbers are picked out of air. And we see what these consequences are of that kind of legislating. ... Ten-year mandatory minimum, routine sentences are 15, 20, 30 years, without parole. ... Then you have conspiracy, and suddenly ... you have people facing 50 years, people facing either life in virtual terms or as a real sentence. That's what's happening. Fifteen thousand federal drug cases a year. Bulk of them mandatory minimum cases. Most of them minor offenders. Only 10% of all the federal drug cases are high level traffickers. You wonder, who's asleep at the switch at the Justice Department? ... What you have is conviction on the basis of testimony. You have drugless drug cases. You don't need powder, all you need is the witness to say, "I saw a kilo,"...

With no drugs to be found?

There don't have to be drugs. People are amazed, "Well, aren't there drugs?" There don't have to be drugs. All there have to be are witnesses who say, "I saw the drugs," or, "He said there were drugs." That's what you need.

Couldn't you guess this would happen?

I don't think any of us fully anticipated what these numbers would generate. Remember, at the time that we were doing this, the federal prison population was in the range of 30,000. It's over 100,000 today. None of us envisioned that the Justice Department would so profoundly misuse this statute. Congress said, "We're giving the Justice Department these high-level sentences so that you will go after the highest level traffickers." DEA agents and assistant U.S. attorneys are misusing this statute, with the complicity of their managers in the Department of Justice, to engage in what now has really become a pattern and practice of racial discrimination in almost overwhelmingly prosecuting people of color for tiny amounts of drugs and sending them away for kingpin sentences.

Why are they doing it?

They're doing it because it's easy. These cases are the easiest cases to prosecute. They're cut and dried. The lawyers are public defenders. There's not any kind of real defense. ... These are little cases. However, it's good training for young ambitious attorneys who want to acquire jury experience. And some day they may go after the kingpins, but at this point they're able to learn their craft. For DEA agents, this is safe. I mean when DEA agents go to Columbia or Mexico, their life is in danger. Going after some poor schnook who's the corner crack dealer, that doesn't threaten their lives. The statistics look good. ...

How did conspiracy law emerge?

If the mandatory minimums were a result of haste and excess by Congress, conspiracy as applied to these mandatories was completely by oversight and by accident. It was submitted as part of a simple technical corrections amendment. No one even thought at all about what the implications were of applying conspiracy. It was presented as though this was simply a slight little loophole that had been inadvertently created and just had to be rectified by inserting the words, "or conspiracy." No one envisioned that by applying [the statute] to anyone in a conspiracy, no matter how low they were in the conspiratorial chain, that they would get the maximum that could be imposed for the kingpin. Nobody figured that out as we were working on it in 1988. It was a total oversight. Now of course you can't change [it], because that's soft on drugs.

Isn't this all a deadly mix?

The current sentencing situation is a sort of witch's brew of three poisons put together making an abominable poison: mandatory minimums designed for kingpins with very long sentences; conspiracy bringing in the lowest level offenders who become eligible for those; [and "substantial assistance" policies]. The only way they can avoid those mandatories is to provide substantial assistance to a prosecutor and if it means telling a wild story to avoid spending almost life in prison without parole, there are many people who will do that.

... It's the prosecutor who decides whether or not your substantial assistance, your testimony, is good enough to get the prosecutor's motion to reduce your sentence ... . So the incentive is, "I'll tell any story I can." I mean these aren't exactly saints that we're dealing with here, dope dealers. [They are] people who are often very desperate. They realize, "If I can get five years instead of 30 years, if I tell a story against that other guy, tell me what I have to say, I'll say it."

Doesn't the prosecution know that people are lying?

The entire criminal justice system knows that perjury is the coin of the realm. In New York City police officers call it "testalying." In Los Angeles they call it "the liar's club." Everybody knows that lying takes place. The prosecutors don't feel bad about it, this is simply part of the system. They just justify it by saying, "We have to get the bad guy." ... Police officers conform their testimony to what they know the courts expect to hear in order to get the results that they want, not on the basis of what the facts are.

Prosecutors say that judges tell witnesses not to lie, under penalty of perjury.

When a judge tells a witness, "Let me remind you, you're under oath and if you lie under oath, you'll be prosecuted for perjury," this is a disclaimer. The judge in effect is washing his hands or her hands of any responsibility for the lie which is forthcoming. This is part of the ritual; it's a ritual statement, it's not a real statement. It's like when you ask a defendant who's pleading guilty if they understand what they're doing. They always say, yes. They're supposed to. They often don't have a clue what they're doing. ...

Informing has been one of the great problems of the criminal justice system. When a codefendant testifies, almost always the defense can ask for an instruction to the jury that the testimony of a codefendant is suspect. The courts have recognized that. But this testimony becomes the cornerstone of the prosecution. And the jury understands, "Well, this is one dope dealer against another dope dealer and if the government is trying to convict this dope dealer, well probably this person is guilty, or else why else would we be here?" We believe in the presumption of innocence as a society. Once you get in the courtroom, that presumption is very, very thin. It's not a whole lot of protection. And when you have a witness who says, "Yes, I am getting a deal, but I was there and this is what the defendant did," jurors will say, "Even if I don't believe all that he's saying, I believe enough of it and that enough is proof beyond a reasonable doubt for me." ...

Do you feel guilty about your involvement in the development of these laws?

The war on drugs is one of the great evils of our times. Drugs are a serious problem, but it's very hard to tease out where the problems of drugs and the problems of the war on drugs are not overlapping. Some day there probably will be war crimes trials in which those responsible for these crimes against the American people, and other peoples, may be brought to justice. ... We have federal judges who have resigned, federal judges who have wept on the bench. Senior federal judges who say, "We refuse as a matter of conscience any longer to take these kinds of cases." Those are people at least who have the opportunity to step out. I had the opportunity to step out by leaving my job in the government and [am] now working to help expose what I think are these problems. When I meet with the family members of people serving these sentences, it is very hard. At times I am moved to tears when I sit across from someone whose loved one is serving a 30-year sentence for something that I played a role in getting enacted. It's an awful feeling.

Is conspiracy law the worst element in creating these unjust situations?

Many nations do not have conspiracy laws because they see how they can be so badly abused. Our conspiracy law is such that long after you've dropped out of the conspiracy, you're still responsible for things that you may have done way in the past. The criminal organization marches forward. You've gone straight. But when the chain gets connected all the way to the back, you can still be held liable and you can be held liable often for things that you had no responsibility for and you could not foresee. It's a terrible problem, the way in which conspiracy is being used in these cases. ...

I had a conversation with a federal judge about the implications of the war on drugs. And the sense of how alien it is to American values, the use of informants, paying informants. ... We have hundreds of thousands of informants. Informants can make a living professionally in their role as informants. This is simply an anathema to the way in which we think a free society ought to operate. The role of wiretapping, of monitoring telephone conversations, of taping conversations. Defense lawyers now are afraid that their clients may be trying to entrap them. The government has said, "We believe we have the power to go to a man represented by an attorney and unbeknownst to that attorney, try to get that man to incriminate the attorney." To think that we would undermine our legal system in this way is reminiscent of the Soviet Union. ...

Are we becoming what we hated?

If we look at the way in which so much of our society functions today, it looks like the kind of highly regimented Soviet system that we were repulsed by in the early 1950s. Informants in the work place. Fear of having conversations with people. Fear of our children informing against us. Not knowing what the charges might be. Offenses for which bail is no longer available. ...

Does the public understand what's going on?

The ignorance about what's going on exists on a bunch of different levels. Number one, the offenders themselves are ignorant of what the penalties are that they could incur. Congress says, "We're going to pass these tough laws to send a message to the criminals to stop." But there's a complete disconnection between what Congress hopes and what criminals actually understand. They don't watch C-SPAN, they don't read "Congressional Record." They simply don't know. They're astonished when they get punished. Congressmen also don't know what the laws are. Many of them don't even know that parole was abolished. The public doesn't know what the laws are. The public still believes that people are getting slapped on the wrist. These are examples which then allow a member of Congress to say with a straight face, "We need to get tougher."...

What is the substantial assistance clause?

One of the oldest prosecutorial techniques is working up the ladder. Finding someone who's not centrally involved, but who has evidence and who you in effect squeeze and say, "Testify up." This was a very common way in which an organized crime investigation would work. It's a very old theory in the law and they believed that that would [work] here. The difference in part is between being sort of a soldier in a traditional La Cosa Nostra family was you actually knew who your supervisors were. You knew what they did. They spoke to you. Drug organizations now are so large and so diverse that someone can be involved as an unloader, as a seller, as a mule, as a courier. They're insulated, they don't know who the principals are. ... So very often low level people have nothing that they can really offer. However, the higher ups are in a position, very often, to testify down. They say, "I'll testify against six people." The prosecution of General Manuel Noriega is a prime example where a whole bunch of high level dope dealers got great sentence bargains for going after General Noriega.

Snitching up?

That was snitching up, but these were already people who were high level people. Manny Noriega was not dealing with the guy who was unloading the boats.

Does the system encourage those on the lower levels of a drug organization, who don't have useful information to pass on to prosecutors, to set up others who may be innocent?

This was one of the things that really did mystify me when our subcommittee did investigations of the way in which informants were used and misused back in the 1980s. If you are a professional informant, it's a whole lot safer to set up someone than to actually inform against somebody in the business, because that person may have you killed. And so we came across cases in which an informant would pretend to be a government agent, and enlist somebody to [whom] they say, "We want you to help catch a dope dealer. Now, in order to do that, you have to tell the dope dealers this story about all the stuff you've done." Now what happens then is actually the patsy thinks that these people he's talking to are dope dealers, [but they] are actually the DEA agents. And so the patsy is telling the DEA agents what he's been told by the informant to say, all about all this stuff that he did. So the patsy then gets prosecuted as a dope smuggling pilot, the informant gets his reward, DEA gets the case, who cares about the patsy? He's now a convicted dope dealer. ...

These witnesses are facing time?

... It's [often] somebody who's saying "Geez, I'm facing 30 years or 50 years in prison, I can get out? What do I have to do? What do I have to testify? Who do I have to testify against? I have to say he was a dope dealer, sure. How much do you need to say you saw? How bad do you think this guy is? He's real bad? Oh, he said he sold fifty kilos, he was the biggest dealer in town. Is it true? I swear it's true, honest." Who's going to dispute it? So you've got this guy sitting with the majesty of the federal court, presented by the United States. "Your Honor, this is the witness on behalf of the United States. You don't believe him? You don't believe the United States, your own government? Who can you trust if you can't trust us, if you can't trust our witnesses?" I don't know how judges can sleep at night, sending people to prison on what they know is perjured testimony. Well, how do they do it? "Wasn't my decision, was the jury. ... If the jury believed him, who am I to say that he wasn't telling the truth?"

But the jurors often don't know what the penalty for a guilty verdict will be.

The jurors don't know the penalty. We don't let the jurors know the penalty. ... If everybody thinks that dope dealers are getting off with a slap on the wrist, jurors are in the same box. After all, we know that prosecutors try to keep informed people off the jury. We don't want informed people on the jury. They're not so easily manipulated.

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