Democracy Dies in Darkness

The Watch | Opinion

America's drug war: 30 years of rampaging wildebeest

October 28, 2016 at 11:38 AM

Yesterday marked the 30th anniversary of one of the most destructive laws ever passed in the United States, the Anti-Drug Abuse Act of 1986. It was passed in the wake of the overdose death of NBA prospect Len Bias, who had just been drafted by the Boston Celtics, the favorite team of then-House Speaker Tip O'Neill. Here's a quick primer on the law from Families Against Mandatory Minimums:

It's difficult to overstate just how profound an impact Bias's death had on America's drug war. Dan Baum's book "Smoke and Mirrors" is the definitive history of the U.S. drug war, at least through the early 1990s. Here's an excerpt about the frenzy on Capitol Hill after Bias's death:

On his way to work one swampy June morning that year, Eric Sterling noticed in the paper that Len Bias had died the night before. Strange, Sterling thought; Bias was so young. But not being a sports fan, Sterling wasn't much interested in the story.

Until he arrived at work.

It was like Pearl Harbor had just been bombed; nobody in the Longworth House Office Building was talking about anything but Bias …

Immediately upon returning from the July 4 recess, Tip O'Neill called an emergency meeting of the crime-related committee chairmen. Write me some goddamn legislation, he thundered. All anybody up in Boston was talking about was Len Bias. The papers were screaming for blood. We need to get out front on this now. This week. Today. The Republicans beat us to it in 1984 and I don't want that to happen again. I want dramatic new initiatives for dealing with crack and other drugs. If we can do this fast enough, he said to the Democratic leadership arrayed around him, we can take the issue away from the White House.

In life, Len Bias was a terrific basketball player. In death, he would become the Archduke Ferdinand of the Total War on Drugs. What came before had been only skirmishing; the real Drug War had yet to begin. Within weeks the country would be marching, bayonets fixed …

Crack was a congressional member's dream: an issue on which there was no real disagreement, only a question of who could prove himself more committed to the cause. Eric Sterling couldn't tell whether Congress was leading television or vice versa. In the month following Bias's death, the networks aired seventy-four evening news segments about crack and cocaine, often erroneously interchanging the two substances and blithely asserting it was crack that killed Bias . . .

In his seven years working for Congress, Sterling had never seen such a frenzy grip the Capitol. Usually, committees would hold hearings on a bill, refine points of law, and finally bring the bill into a markup session to polish the language. Now, though, members were having staff members draw up hardline proposals and rushing them straight into markup sessions — without benefit of hearings. Sterling found himself in one such session, in which members of the Crime Subcommittee found themselves, by the seat of their pants, writing laws to put the drug defendants' attorneys in prison.

It's not enough to seize their fees, Congressman Clay Shaw of Florida argued. "The only way we will get at this [drug] problem is to let the whole community, the whole population, know that [defense attorneys] are part of the problem and they could very well be convicted if they knowingly take these funds. Congressman Dan Lundgren of California, an attorney, wanted to exempt lawyers but nobody else who deals with a drug pusher. Make it illegal for a dry cleaner or a grocery store to take money from a drug dealer, he argued, and if they do, seize the business. Put the merchant in jail.

Some of the more clearly unconstitutional provisions didn't make the cut. But the resulting bill was awful enough.

Where the 1986 drug law really departed from tradition was in its adoption of mandatory minimum sentences. In most cases where federal law speaks to a sentence, it is set to maximum limits … In nearly two hundred years, Congress had passed only fifty-eight mandatory minimum sentences.

In the aftermath of Len Bias's death, Congress added another twenty-nine mandatory minimums — a fifty percent increase in four months … By the time Congress was finished, first-offense, small-quantity street dealing could result in a mandatory minimum of ten paroleless years in a federal prison …

The House Subcommittee on Crime, under the leadership of Rep. William Hughes of New Jersey, led the charge.

On July 31, Hughes opened the bidding with a mandatory penalty of five years for possession "with intent to sell" of 20 grams of crack or 500 grams of cocaine. "Not plea bargainable, no probation or parole," he said. William McCollum, Republican of Florida, urged Hughes higher. "I don't think we ought to be embarrassed," he said. "It would be embarrassing if we came in and wound up being less tough when we put a bill out this fall."

George Gekas, Republican of Pennsylvania, wanted to cut to the chase. "I do intend to pursue the death penalty in narrowly circumscribed cases of drug abuse," he said. "I mean, drug trafficking." . . .

Hughes, with his no-plea-bargaining stance, knew he was courting chaos. The biggest experiment with mandatories in recent years was New York's 1973 "Rockefeller laws" . . . Despite a big expansion of New York's court system, a 2,600-case backlog developed in the first eighteen months.

And neither the crime nor the addiction rates in New York improved.

Likewise, there was federal experience with mandatory minimums to draw upon. In 1956 Congress enacted mandatory sentences for various drug laws, but repealed them in 1972 because they "had not shown the expected overall reduction in drug law violations."

Hughes' subcommittee might have known all this had it held hearings on the wisdom and efficacy of mandatory sentences. It didn't, though. With crack leading the morning paper and the evening news every day that summer, there was "no time."

The media quickly jumped on board to push the panic. Baum notes that after another athlete dropped dead of cocaine poisoning — the Cleveland Browns' Don Rogers — ABC News introduced America to a trope that would condition the country to a hyper-militarized police response to illicit drugs for decades to come: drug raid footage.

The network sent a news crew on a crack-house raid and aired breathless, hand-held footage that put the viewer right there with the police as they smashed a door and charged in.

Police and DEA loved such reports because they helped the viewing public identify with the raiders. And it was easy to enlist news crews to come along. Crack, said the head of the DEA New York office, "is the hottest combat-reporting story to come along since the end of the Vietnam War." After ABC's report, raid clips became part of the networks' image bank and snippets of raids appeared in about a quarter of all Drug War reports during the next two years, continually reinforcing the public's identification with the well-armed guys in ski masks bashing in the door.

Baum's interviews with reluctant congressional drug warrior Eric Sterling are especially poignant. (Sterling has since spent his life trying to repair the damage Congress did in the 1980s.)

Eric Sterling had once seen a film shooting Tanzania; a million wildebeest grazing peacefully, until one of them started running. Assuming danger, a few more joined in, and in no time, the whole heard was stampeding wildly, trampling the sick and the slow, laying waste to the flora and fauna alike in a senseless headlong panic. Those images kept occurring to him as he watched Congress in the weeks following Len Bias's death.

"I don't see how it is possible to make some decisions until we find out exactly what we are talking about," Hughes said. His subcommittee was back at it, talking about criminalizing cornstarch …

Congress, meanwhile, continued throwing together what it hoped would be the biggest, baddest drug bill in all of history. With no time for hearings, legislators informed themselves from television, magazines, constituents' letters, and each other's increasingly florid statements to the TV cameras. Clay Shaw of Florida declared drugs, "the biggest threat that we have ever had to our national security." House majority leader Jim Wright of Texas upstaged him by calling drugs, "a menace draining away our economy of some $230 billion this year, slowly rotting away at the fabric of our society and seducing and killing our young." The $230 billion figure — roughly equal to the Social Security budget — apparently was plucked from thin air.

The bills flew fast and furious. No more probation for druggies! No more suspended sentences! Death penalty for kingpins! A billion dollars for new prisons! A billion for state and local narcotics squads! Repeal the exclusionary rule! Elevate the drug czar to cabinet status! Urine-test all federal employees!

[…]

Drugs are "a threat worse than any nuclear warfare or any chemical warfare on any battlefield," South Carolina Republican Thomas Hartnett said, sponsoring a measure to force the president to stop all drug smuggling within 45 days. Senator Sam Nunn of Georgia called it, "the equivalent of passing a law saying the president shall, by Thanksgiving, devise a cure for the common cold."

It passed anyway.

The drug bill's absurdity and political utility were plain for all to see. It's "out of control," David McCurdy of Oklahoma told Newsweek, "but of course I'm for it."

We have, of course, seen a dramatic shift in public attitudes about some drugs since then, particularly with marijuana. But we haven't lost the consequences-be-damned instinct to legislate and prosecute our way out of what is ultimately a health problem. The drug in question may change, but the pattern remains. Stories percolate about a new drug-related public health problem. A high-profile death attributed to that drug (not always accurately) starts the panic. Demagoguing law-and-order types, anti-drug activists and editorial boards demand that something be done. Rash legislation gets passed, followed by decades of unintended consequences.

You needn't look far to see the pattern on display still today. Watch how quickly politicians will rush to ban whatever trendy new drug gets hyped on the local news. Or look at the response to the latest crisis of opioid addiction. We've had calls to criminally prosecute doctors believed to be over-prescribing opioid painkillers. We have grandstanding lawmakers and prosecutors demanding murder charges, or even the death penalty, for people who supply heroin to addicts who ultimately die of an overdose. And, of course, we have state legislatures responding to the crisis with — you guessed it — more mandatory minimums.

It's a pattern almost as predictable as the southerly autumn charge of the wildebeest.


Radley Balko blogs and reports on criminal justice, the drug war and civil liberties for The Washington Post. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is "The Cadaver King and the Country Dentist: A True Story of Injustice in the American South."

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