A rush to judgment

In 1986, lawmakers wrote new mandatory crack cocaine penalties in a few short days, using the advice of a perjurer.

Members of Congress said they crafted mandatory minimum crack sentences to take down high-level traffickers, but the amounts they targeted swept up tens of thousands of low-level street dealers.
New York Daily News Archive/Getty Images

Shortly after sunrise on June 19, 1986, inside a University of Maryland dorm room, college basketball sensation Len Bias collapsed in a seizure.

The 22-year-old had a promising future ahead of him. He had been picked second in the National Basketball Association draft by the Boston Celtics, his dream team, two days earlier. After a whirlwind celebration in Boston, he had returned to campus, partied late, and ended the night with friends around a dorm-suite table dusted with cocaine. At around 6:30 a.m., a heart attack felled the 6-foot-8, 210-pound All-American.

“Len would have been a star,” Red Auerbach, the president and general manager of the Celtics, said. “He had a little Michael Jordan in him, not quite as acrobatic as Michael but a better shooter. And he had a little Dr. J. in him, too.”

Bias’ legacy, however, would have little to do with jump shots and a lot to do with mandatory minimum prison sentences.

His death came amid a rising national panic over the spread of cocaine. More than 1,000 articles about crack — a smokable, easily packaged form of the drug — appeared in the national media that year, including five cover stories in Time and Newsweek. Three days before Bias died, Newsweek had called crack the biggest news story since the Vietnam War or Watergate. In September, Time called crack the “issue of the year.”

A few weeks after Bias’ death rocked Washington, D.C., lawmakers returned to their home districts for the July 4 holiday. Congress was facing midterm elections that November, and the 12 new Republicans senatores lifted into office by President Ronald Reagan’s 1980 landslide would not have him at the top of the ticket.

Thomas “Tip” O’Neill Jr., the Democratic speaker of the House of Representatives — and a Boston native — called on his party to seize the political moment and draft a major crime bill by the August recess. The result would be the Anti-Drug Abuse Act of 1986, a landmark event in the war on drugs, drafted in haste to meet O’Neill’s deadline.

The act revived mandatory minimum drug penalties, which had first been broadly imposed as part of the Narcotics Control Act of 1956 in the belief they would be an effective deterrent. The minimums had been repealed in 1970, after Congress determined that increased sentences had failed to do the job.

Yet 14 years later, national frustration with crime and growing criticism of rehabilitation-focused criminal justice models led to the Sentencing Reform Act of 1984, which created the federal Sentencing Commission and directed it to write uniform — and, at the time, mandatory — sentencing guidelines for judges. It was this prevailing mood that held sway over Congress in the summer of 1986.

Very candidly, none of us has had an adequate opportunity to study this enormous package.

Charles Mathias

Republican senator from Maryland, in 1986

After lawmakers returned from the July 4 holiday, the Capitol became a drug war bonanza, and in the last week before recess, the Republican minority in the House Judiciary Committee’s Subcommittee on Crime persuaded two Democrats to enhance existing drug penalties.

“The short story is that they were written in enormous haste,” said Eric Sterling, who served as counsel to the Judiciary Committee in the 1980s. “There were no hearings on these sentences. There was no outside opinion.”

Lawmakers wanted to target mid- and high-level traffickers, and they told Sterling, who often led the drafting of new drug legislation, to set the drug quantities for each tier.

Sterling, who had often worked with the Drug Enforcement Administration, suggested they use the DEA’s definition of a class 1 trafficker — someone who manufactured or distributed at least 4 kilograms of pure cocaine each month, or hundreds of thousands of doses. But at a markup session, Rep. Romano Mazzoli, a Democrat from Kentucky, said such an enormous amount would not apply to dealers in his district. Others agreed. They told Sterling to come back the next morning with a different proposal.

Sterling called Jehru St. Valentine Brown, a narcotics detective with the capital’s Metropolitan Police Department, who had been detailed to the House Select Committee on Narcotics Abuse and Control. The two spoke for about half an hour, Sterling said, or maybe more. Brown recommended his own quantities, substantially smaller than the DEA’s. The next day, Sterling took new amounts to the representatives.

On Aug. 12, the subcommittee approved mandatory minimum sentences of five to 20 years for trafficking in 20 grams of crack and 10 to 30 years for trafficking in 100 grams. In its report on the bill, the committee urged the government to focus on “major traffickers … who are responsible for creating and delivering very large quantities of drugs.”

On Sept. 8, when Congress returned from recess, the Anti-Drug Abuse Act was introduced in the House. It would undergo more than 100 rushed amendments.

“Very candidly, none of us has had an adequate opportunity to study this enormous package,” Charles Mathias, a Republican senator from Maryland, said during remarks on the floor.

By the time the bill became law, on Oct. 27, the 50-to-1 disparity between the amount of powder cocaine and the amount of crack needed to trigger mandatory minimum sentences had doubled.

The speed of Congress’ work left only a slim legislative history about why this had happened. Sen. Bob Dole, the Republican majority leader from Kansas, introduced a bill on behalf of the Reagan administration that would have instituted only a 20-to-1 disparity. But other lawmakers, encouraged by since-debunked reports in the media and from law enforcement about the special danger of crack, insisted on tough penalties.

“Such treatment is absolutely essential because of the especially lethal characteristics of this form of cocaine,” said Lawton Chiles, a Democratic senator from Florida who argued for the 100-to-1 disparity. “[Crack] can be bought for the price of a cassette tape and make people into slaves.”

By the early 1990s, the mandatory minimums had taken full effect. Sentences for crack crimes were, on average, three years longer than sentences for powder cocaine. From 1992 to 1996, the number of people convicted of a crime involving powder cocaine declined by 35 percent, while the number of crack convictions climbed by 89 percent. The vast majority of crack convicts, more than 80 percent almost every year, were black.

Brown, meanwhile, would be exposed as a perjurer by the end of the decade. A powerful witness in narcotics cases, he testified thousands of times that he had a degree in pharmacology from Howard University and was a board-certified pharmacist. After a criminal defense lawyer made a routine check, both claims were exposed as lies. In 2000, he pleaded guilty to eight counts of perjury, and dozens of offenders filed motions for retrial.

In 1995, the Sentencing Commission urged Congress to change the 100-to-1 powder-to-crack disparity. The commission cited the troubling “anomaly” that a high-level powder cocaine seller could be sentenced more leniently than someone who bought a portion of the seller’s cocaine and cooked it into crack. Commissioners submitted an amendment to Congress to equalize sentences for crack and powder cocaine, but lawmakers passed legislation to decline the amendment, and President Bill Clinton signed it.

In the 2010 Fair Sentencing Act, Congress rolled back the disparity to an 18-to-1 ratio, and thousands of inmates applied retroactively to have their sentences reduced. Three years later, Attorney General Eric Holder directed federal prosecutors to relax their charging decisions to avoid triggering mandatory minimums and other harsh sentencing enhancements. This year, Congress is poised to vote on the Smarter Sentencing Act, which would make the Fair Sentencing Act fully retroactive and slash mandatory minimum sentences in half.

But for thousands of people, the damage was already done.

“I think the devastation and the ripple effect is untold and will last for generations and generations,” said Vincent Southerland, senior counsel with the NAACP Legal Defense and Educational Fund. “Because what it did was [to] remove generations of individuals from communities that really needed and required strength and assistance and all hands on deck. And I think the drug wars are going to be one of those things that we look back on 30, 40 years from now and have very, very sobering regrets about what it did to this country.”

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