NEAL CONAN, host: And now, "The Opinion Page." For those not old enough, it's hard to explain the shock of Len Bias' death 25 years ago this week. The University of Maryland basketball star died of a cocaine overdose as he celebrated his selection in the NBA draft - number two overall. The sudden loss of this great talent changed the game on both the college and professional levels. But in an interview on Salon.com, Eric Sterling argues that it also led to the incarceration of hundreds of thousands of people over the next quarter-century as Congress responded to the dramatic headlines with a new law to attack a new drug: crack cocaine.
Eric Sterling served as a counsel to the House subcommittee that drafted the anti-drug-abuse law of 1986. Today, he's president of the Criminal Justice Policy Foundation, and joins us here in Studio 3-A. Nice to have you on TALK OF THE NATION today.
ERIC STERLING: It's good to be with you, Neal.
CONAN: And among the ironies here, Len Bias did not use crack cocaine.
STERLING: Correct. It was powder cocaine that he was snorting that night - and drinking heavily as well.
CONAN: And how did that terrible tragedy turn into a nightmare of a drug law?
STERLING: He had signed with the Boston Celtics. The speaker of the House, Tip O'Neil, was from Boston. And over the July 4 recess, his constituents were talking about this tragedy. He was hearing from his colleagues around the country, by telephone as well, how they were very riveted by the continuing revelations about this tragedy. The speaker realized that the national concern about this could be the basis for a comprehensive anti-drug, anti-crime bill.
And so when he came back, he brought the Democratic leadership together and said: I want all of the House committees to participate in drafting such a bill. If it's perceived primarily as a Democratic effort, if we're driving it, this may have a positive outcome in the November election for United States Senate, and we can take the Senate back from the Republicans - which we had lost in 1980.
CONAN: In other words, the Democrats would be seen as tough on crime.
STERLING: The Democrats would be seen as tough on crime.
CONAN: So the - every House committee, as you said, started to draft legislation, and something eventually took shape. But - well, I said eventually, but it actually happened pretty quickly.
STERLING: It happened with amazing speed. From the middle of July until the recess began in the second week of August, so that all of these committees that had nothing to do with drugs, typically - the Agriculture Committee, Education and Labor, Ways and Means, and so forth and so on - are suddenly putting together something to contribute to a Congress-wide, anti-drug package. I was involved. I had been working on drugs since 1980. I had been working on a designer-drug bill, a money laundering bill, and these were then folded in.
In the very last week - really, only the last four days before the adjournment - a number of Republican members said well, we, you know, looking at all of this, where is the get-tough, where is the crackdown? We want long sentences here. We need to punish high-level offenders more effectively. And so that was added, really in the last days, so that there was no opportunity for hearings on this piece of it, on the impact. And the mistakes, then, of that process have played out and been seen by practitioners for many years now.
CONAN: As you described in the interview on Salon.com, one of the big mistakes was in the process of deciding how much cocaine, or crack cocaine, someone would have to be in possession of to - well, come under federal law.
STERLING: The amounts ended up being very, very small, instead of a high-level quantity...
CONAN: Because the idea of the law, originally, was to go after kingpins.
STERLING: Exactly. We - the Justice Department had very broad discretion, and we recognized that the federal should be focused on the highest-level traffickers. The first proposal that we had used data that the DEA had suggested in terms of how they evaluate, internally, their highest-level traffickers. Those numbers were objectionable to a congressman from Louisville, Kentucky, who said: We'll never use this law in Louisville. And unfortunately, no one, given the speed of this, said: But congressman, Louisville is not Holly - Miami. It's not the center of the drug trade. Nobody goes to Louisville to do a major cocaine deal. Of course, we don't need it.
CONAN: You should consider yourself lucky...
(SOUNDBITE OF LAUGHTER)
CONAN: ...you don't see these kinds of amounts in Louisville.
STERLING: Exactly, exactly. And so, Eric, go back to the drawing board. And I consulted with a D.C. local narc who was assigned to the House Narcotics Committee, and he suggested numbers. And those were the ones that came back. And then they were cut further in the Senate. So we ended up with 5 grams of crack cocaine, and 50 grams of crack cocaine, as the two trigger levels.
Fifty grams is the weight of a common candy bar. It's a tiny speck in the global picture of narcotics trade. When a boat gets seized and we read that a ton of cocaine was seized, that's 1 million grams. So 50 grams doesn't really get you to that international level.
The Justice Department, unfortunately, under both Republican and Democratic administrations, has really focused on these low-level offenders. A third of all the crack cases, according to the U.S. Sentencing Commission, are less than 25 grams. These are simply tiny quantities, of no consequence in stopping the drug trade.
CONAN: As you also point out - we'll get back to this - they are crimes under state law as well and could well be handled by state law and don't need, necessarily, to get the federal government involved. But let's go back to that local Washington, D.C., narc that you consulted to get these numbers in the bill - to get them lower so the congressman from Kentucky would be happy that this law might be used in Louisville.
STERLING: Well, Johnny St. Valentine Brown was the most acclaimed narcotics detective in the District of Columbia - testified in numerous cases, and had been detailed to the House Narcotics Committee's staff. And that's where I knew him and knew of his reputation. Some years afterwards, it turned out that he had repeatedly, for years, been lying in court about his qualifications, and he was prosecuted by the U.S. attorney for perjury. And then most ironically, at his sentencing, submitted to the trial - to the sentencing judge numerous letters from judges that he, in fact, forged attesting to his good character. So he went to federal prison for a number of years.
CONAN: So effectively, the numbers that were the basis for this federal law were from a narc who, to put it kindly, made stuff up.
STERLING: That's right.
CONAN: And then - as you said - it went to the Senate, where those numbers were reduced even further; Republicans in the Senate not going to be outdone in the we're-tough-on-crime part.
STERLING: Exactly. That's right, so that the quantities got smaller; the sentences got longer. Our bill provided, for example, five years to 20 years. The Senate-passed bill was five years to 40 years. For a bigger offense, our sentence was 10 years to 40 years. In the Senate, that became 10 years to life imprisonment.
So there are people who are now serving life terms without parole, for relatively small quantities of drugs. And because you do not actually have to have physical evidence, only the testimony of an informant is sufficient. If I testify under oath that there were 10 kilos involved, that is 10 kilos - even though no one ever saw them, even though no one ever weighed them. So that just based on informant testimony, someone can serve - end up serving a life sentence. And that's happening in the case, for example, of Clarence Aaron, whose case was reported in "Frontline" on PBS a number of years ago.
CONAN: So this law, as it was swept into effect in the summer of 1986, following the death of Len Bias and all the - part of it, as you said, yes, he was drafted by the Boston Celtics, and the speaker of the House, Tip O'Neill, was from Boston - but part of it was also that this was an extraordinary talent.
STERLING: He was. I mean, anybody who paid any attention to sports knew who he was. He had grown in the Washington, D.C., area. He had started the Maryland - team. So that everyone in Washington, on the nightly news, saw his latest triumph. Every member of Congress knew who he was because members of Congress pay close attention to this. They have a basketball court in the House gym. You know, they - this is something they take seriously.
CONAN: They also watch the local news when they live in Washington, D.C. - typically, in the wintertime, when the University of Maryland played its basketball games.
STERLING: That's right. That's right.
CONAN: And so they saw Len Bias every day. And this was an extraordinary, Michael Jordan-like talent.
STERLING: They were always paired when they talked about who were the outstanding players of the time. It was Bias and Jordan. That's exactly right.
CONAN: And the feeling that some kid, anybody's kid could do cocaine once and die.
STERLING: That's the other part of it, of course - was, we saw this young man. He was a gifted athlete. He had a squeaky clean reputation. And that message prevented tens of thousands or more from - young people from experimenting with drugs. If this could happen to Len Bias, what could happen to me? Certainly, his story, as tragic as it was, has had a very beneficial impact for various people. The dark side is the hundreds of thousands of people in federal court who went to prison and served long, mandatory sentences - and many are still there. But half of the federal prison population now is there on drug charges, and that's over 100,000 men and women now.
CONAN: And there are those who look at that law - the one that you helped draft - and say, this was a piece of racist legislation that was targeted at jailing African-Americans and Hispanics.
STERLING: And that was a complete myth. That was a complete construct. It's the case that Congress saw this problem as a problem in the black community, but they saw this as a way to relieve the black community of the crime, the - and the disorder connected with the cocaine trade. But as the law was applied and the fact that the - in federal crack cases, only one out of 10 of the federal crack prisoners is white, and that nine of them are black, that has certainly fed the sense, well, this must be what Congress intended. It's not what Congress intended.
But I indict the Justice Department for failing to have a system in place to stop this pattern or practice of race discrimination and the way the law is applied, because it's applied overwhelmingly against low-level offenders, minor offenders who are getting these terribly long sentences. It should stop. And unfortunately, there wasn't quite enough political muscle to do it. We did - Congress passed last August the Fair Sentencing Act of 2010 that was - had been sponsored originally by Senator Biden and Senator Clinton and Senator Obama, and was finally brought to passage by Senator Durbin. President Obama signed that last August, but it only raises the crack quantities from five grams to 28 grams. That's an ounce.
CONAN: Ounce, yeah.
STERLING: And from 50 grams to 280 grams, which is maybe about a half a pound or so. So that, you know, these are, you know, these barely fill a lunch bag. This is a tiny quantity of cocaine.
CONAN: Not international grade smuggling. We're talking on "The Opinion Page" today with Eric Sterling, president now of the Criminal Justice Policy Institute, served as counsel to the House subcommittee that drafted the 1986 Anti-Drug Abuse Act. If you'd like to read the interview, it's on slate.com called "The Day the Drug War Really Started." You can find a link to it on our website. That's at npr.org. And you're listening to TALK OF THE NATION from NPR News.
And you say you indict the Justice Department for its administration of this bill, that the Justice Department could simply decide, hey, you know, these are - we might do these in extraordinary circumstances, if there's a murder involved or something like that, it would give us jurisdiction to intervene in the crime, but for the most part these should be state cases.
STERLING: That's right. The states have enormous capacity. They do over 300,000 felony drug convictions every year. They - the states, the local authorities can do these cases. But when we look at the violence in Mexico, for example, now or what had taken place in Colombia recently, United States Justice Department really has the greatest global capacity for crime fighting. They can use the Treasury Department, the CIA, the military to gather the intelligence necessary to indict the highest level global traffickers who are threatening other governments with violence and corruption, get them indicted, have them extradited to the United States and convicted and go to prison.
That would be a very, very positive thing that our drug laws could be applied for at the highest level, because there's no other - I mean, the danger of corruption and intimidation in Mexico, in Colombia and elsewhere makes it very hard for those countries to effectively take out their top leaders - their top criminal leaders.
CONAN: So he said in the interview that there needs to be something done by Congress to change the current - yes, the law was changed from 100 to one in the disparity of the sentencing between crack cocaine and powdered cocaine to 18-to-1, But you cited the failure of a bill that Charlie Rangel, then the chairman of the Ways and Means Committee, proposed called the Crack-Cocaine Equitable Sentencing Act.
STERLING: Well, part of that, I felt, was a political failure. The idea of equity with something as horrible as crack cocaine isn't a politically strong phrase. You know, Congressman, did you vote for that Crack-Cocaine Equitable Sentencing Act? That congressman wants to run out of the room if you ask him that question. I...
CONAN: His opponent, as you say, could characterize it as the let-the-crack-dealer-out-of-prison act.
STERLING: You got it. And so as I was advising, you know, people sort of how to move forward, I said, what you really want to do is to focus on the high level of offender, so you called your bill something like the cocaine kingpin punishment act. Senator Biden used that kind in his of terminology in his bill and language that I had drafted in an early version that ended up being part of what senator - excuse me - what President Obama signed last August, which raises the fines that can be imposed on these high-level traffickers to 25, 50 and $75 million, because, you know, these were very serious traffickers and those fines did not changed after 25 years of inflation.
CONAN: Inflation had gone up in the meantime. And as you look at it, though, after the push to get this bill passed through last year, is there any energy remaining to get another bill passed?
STERLING: I don't have any sense that there's energy to take this up again, not for sometime.
CONAN: And if the same disparity of sentencing were to exist at a state level or in one jurisdiction, a city, what would the Justice Department do, do you think?
STERLING: I think if there were a local government that were prosecuting blacks at a rate that was nine or 10 times the rate over prosecuting whites. That might very well involve an investigation by the civil rights division. That would suggest a pattern or practice that's a violation of the law.
CONAN: Eric Sterling, thanks very much for your time today.
STERLING: My pleasure, thank you.
CONAN: Eric Sterling, president of the Criminal Justice Policy Foundation in Silver Spring, Maryland. He joined us today here in Studio 3A. Again, we've posted a link to his interview at Salon.com at our website, go to npr.org. Click on TALK OF THE NATION. This is TALK OF THE NATION from NPR News, I'm Neal Conan in Washington.
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