Source: PBS Frontline
Pubdate: Tue, 12 Jan 1999
Copyright: 1999 WGBH/FRONTLINE
Frontline Producer
125 Western Avenue Boston, MA 02134

Note: Below is one of the many features posted to the website above which
expand on the documentry 'SNITCH.'  Headline by MAP. The Criminal Justice
Policy Foundation website is at:


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

FRONTLINE: Looking back now, how do you measure the success of your work
enacting mandatory minimum sentences for drug offenses?

Eric Sterling: 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.

FRONTLINE: How did these laws come about?

Eric Sterling: 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,"... 

FRONTLINE: With no drugs to be found?

Eric Sterling: 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. 

FRONTLINE: Couldn't you guess this would happen?

Eric Sterling: 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. 

FRONTLINE: Why are they doing it?

Eric Sterling: 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 Colombia 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. ...

FRONTLINE: How did conspiracy law emerge?

Eric Sterling: 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. 

FRONTLINE: Isn't this all a deadly mix? 

Eric Sterling: 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." 

FRONTLINE: Doesn't the prosecution know that people are lying?

Eric Sterling: 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.

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

Eric Sterling: 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." ...

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

Eric Sterling: 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. 

FRONTLINE: Is conspiracy law the worst element in creating these unjust

Eric Sterling: 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. ...

FRONTLINE: Are we becoming what we hated?

Eric Sterling: 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. ... 

FRONTLINE:  Does the public understand what's going on?

Eric Sterling: 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."... 

FRONTLINE: What is the substantial assistance clause?

Eric Sterling: 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. 

FRONTLINE: Snitching up?

Eric Sterling: 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. 

FRONTLINE: 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?

Eric Sterling: 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. ...

FRONTLINE: These witnesses are facing time?

Eric Sterling: ... 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?" 

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

Eric Sterling: 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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MAP posted-by: Richard Lake