Chipping at tough crack sentencing

In the spring of 1986, lawmakers had become alarmed by reports of urban crime waves linked to crack, then a new and highly addictive form of cocaine. News reports were full of images of writhing “crack babies” deeply addicted to the drug through their mothers, doomed to “a life of certain suffering, of probable deviance, of permanent inferiority,” as one columnist observed.

The sudden death that June of basketball star Len Bias galvanized Washington into passing extraordinarily strict drug laws. Selling as little as 5 grams of crack would bring a mandatory five-year federal prison term, with no possibility of parole.

Now those laws are being questioned, and in some cases relaxed, in the face of evidence that some predictions about the ravages of crack were overblown -- and that the harsh penalties were ineffective.

This month, the U.S. Sentencing Commission voted unanimously to reduce the prison terms of as many as 19,500 federal inmates convicted of crack-related crimes. The decision, which came a day after the U.S. Supreme Court gave federal judges discretion to deviate from strict drug sentencing guidelines, marked a milestone in the two-decade debate over the drug.

Though there is no debate that crack harms users, the grim forecasts of empty lives for the children of crack-smoking mothers were overblown. The effects “have not been as devastating as originally believed,” the National Institute on Drug Abuse said in testimony before the sentencing commission last year.

Crack has the same effect on the body over time as powder cocaine, and poses “less risk” than exposure to alcohol or cigarettes, said Harolyn M. E. Belcher, a developmental pediatrician at the Kennedy Krieger Institute for disabled children in Baltimore.

The stiff penalties also did not curb violent crime. Homicides nationwide rose despite the new laws, increasing by about 25% from 1985 to 1993.

“It was counterproductive,” said Alfred Blumstein, a crime expert at Carnegie Mellon University in Pittsburgh. “The replacements that got recruited into the markets to replace the people that were being shipped off to prison were a lot more dangerous than the people they replaced.”

The violence eventually declined, but Blumstein said that was largely because crack failed to attract new customers in light of its reported health dangers. “Youthful offenders have moved on to other drugs,” he said.

It’s also debatable whether the tougher laws had much effect on the drug trade. Resilient drug markets continue to confound law-enforcement efforts. After Congress enacted stiff penalties for crack, the drug’s street price declined for several years, making it, in theory, more available.

None of that was foreseen in the summer of 1986, when crack was rapidly becoming the cheap wine of the drug trade, a lower-cost cocaine alternative for poor neighborhoods. A tipping point in the debate was the death of Bias, a University of Maryland basketball player who suffered cardiac arrest blamed on a cocaine overdose two days after he had been drafted by the Boston Celtics.

“The death of Bias was the fuse that set off this explosion” of activity in Congress, said Eric E. Sterling, who was then counsel for the House subcommittee on crime. According to Sterling, lawmakers believed that “if a healthy, superb athlete like him can be struck down by this drug, this country will be devastated if we don’t act.”

Although it was never determined whether Bias had been using crack or powder cocaine, then-House Speaker Thomas P. “Tip” O’Neill Jr. made crack a top priority when Congress returned from summer recess. Democrats, hoping to retake control of the Senate that fall, seized on the issue as a way to show their stripes in attacking crime.

The resulting legislation was tougher than had been recommended by the Reagan administration.

Mandatory prison terms were set making a drug dealer selling crack subject to the same sentence as one selling 100 times as much powder cocaine.

Selling 50 grams of crack triggered a 10-year term in federal prison, the same sentence for selling 5,000 grams of powder cocaine.

Thousands of young African American men, the predominant users and sellers of crack, were given lengthy prison terms.

What’s more, in their zeal to stem crack’s destructive effect, Congress set the amount that would trigger criminal charges so low that prisons soon became jammed with low-level dealers and operators. About half the 4,000 to 5,000 people charged with crack offenses in federal court every year are street dealers or couriers rather than wholesale suppliers.

By the mid-1990s, violent street crime associated with the drug was starting to abate and the dire, media-driven predictions of generations of crack babies were suspect. The sentencing commission began to recognize problems with the drug laws, and voted in 1995 to make the guidelines for crack sentences the same as for powder cocaine.

But Congress resoundingly intervened and blocked the more lenient crack penalties.

The panel also recommended that lawmakers abolish the harsh mandatory minimum sentences for crack offenders. But that recommendation, like several it would make in ensuing years, went unheeded.

“I thought, 10 years ago, as the [crack] issue lost its prominence, one would see more rational decision-making,” said Peter Reuter, professor of public policy at the University of Maryland and co-director of the drug policy research center at RAND. Instead, he said, “the issue lost its saliency,” and “politicians lost interest.”

In an October 2000 interview, then-President Clinton said the failure to address the disparity between crack and powder cocaine sentences was one of the major regrets of his administration.

Richard P. Conaboy, a federal judge in Scranton, Pa., who was chairman of the sentencing commission in 1995, laments the missed opportunity. “I was quite naive at the time,” he said. “I was led to believe that the report would be accepted.”

Conaboy said the actions taken this month were steps in the right direction, if less sweeping than his panel’s recommendation. “Our form of government does take a long, long time to bring about any change,” he said. “There is an inclination . . . not to admit that you were not exactly right the first time.”

Despite relaxation of the guidelines, people caught with crack cocaine still will face long prison terms. Congress so far has refused to retreat from the “mandatory minimum” laws that require prison terms of at least five years for possession of crack cocaine.

But some lawmakers have been pressing for change. Calling it “a terrible flaw in the criminal justice system,” Sen. Joseph R. Biden Jr. (D-Del.), a Democratic presidential candidate, proposes eliminating the 100-to-1 disparity between powder and crack cocaine.

Reps. Sheila Jackson-Lee (D-Texas) and Charles B. Rangel (D-N.Y.) have introduced similar bills in the House.

Sens. Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) -- have proposed raising the amount of crack cocaine that would trigger a mandatory prison term.

But none of these proposals has won approval from the judiciary committees of the House or Senate.

Mark Kleiman, a UCLA professor of public policy and a drug policy expert, said: “Nobody [in Congress] wants to go home and explain why they let the crack dealers out of prison.”

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rick.schmitt@latimes.com

david.savage@latimes.com