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March 7, 2008 - Chicago Tribune (IL)

Mukasey Puts Latest Crack In Truth On Drugs

By Carol A. Brook

Return to Drug War News: Don't Miss Archive

This week, my phone has been ringing off the hook.

Mothers, sisters, wives and daughters, voices soft and shaking, ask whether their loved one might be eligible for the new retroactive crack cocaine reduction. When I tell them yes, they cry.

Many of those eligible for sentence reductions have no prior criminal history and were convicted of simple possession. Many more were convicted of distributing just a small amount of crack cocaine one time.

Nonetheless, U.S. Atty. Gen. Michael Mukasey recently told Congress that the early release of these offenders would unleash "violent criminals" onto our streets and pose "significant public safety risks."

His warning is the most recent in a long line of blunders that began with the death of Boston Celtics star draft pick Len Bias in 1986.

Since Bias' death, the onslaught of unsupported facts and overblown rhetoric about the relative dangers of crack versus powder cocaine has resulted in the disproportionate imprisonment of hundreds of thousands of mostly young black men.

Instead of closing its eyes to this injustice, Congress should be leading the movement to eliminate the disparity created by the crack cocaine laws.

Mukasey's warning to Congress came four weeks before the effective date of the U.S. Sentencing Commission's modest sentence reductions for people previously sentenced for crack. The commission, appointed by Congress, made its decision after taking testimony from criminal justice organizations, practitioners, academics, judges and doctors, who overwhelmingly agreed that the crack cocaine sentences are based on false assumptions, do nothing to solve the drug problem, and lead to unjust results.

Now, back to Len Bias.

Bias was drafted by the Boston Celtics on June 17, 1986, to the delight of Massachusetts residents and sports fans everywhere. He was then a 22-year-old African-American college student.

Two days later, he was dead. Reports that his death was caused by an overdose of crack cocaine set off a virtual epidemic of articles and television specials discussing the dangers of the previously little-known drug. In the three months after Bias' death, more than 1,000 articles appeared. Time Magazine made crack its "issue of the year." ABC later described crack as "a plague that was eating away at the fabric of America."

Today, although more than 65 percent of crack cocaine users are white or Hispanic, 82 percent of those prosecuted and imprisoned for federal crack cocaine offenses are African-American. They are serving median sentences twice as long as their white counterparts, who were convicted of possessing powder, not crack, cocaine. In 70 percent of all crack cases, low-level street dealers receive longer sentences than wholesale drug distributors.

These disparities exist, even though we know that the physiological and psychoactive effects of crack and powder cocaine are virtually identical. They exist even though the effects of prenatal exposure to crack and powder cocaine are identical. They exist even though the epidemic of violence and rapid spread to youth that crack was supposed to create, never happened.

How did things go so wrong?

As it turns out, 1986 was the same year that longtime House Speaker Thomas P. "Tip" O'Neill was set to retire. Moved by the death of Bias and its effect on his constituents, O'Neill requested that tough new drug legislation be drafted in time to become law before the November congressional elections. The legislation was hurriedly written during the five-week summer recess. No hearings were held. No experts were consulted.

The legislation resulted in the 1986 Anti-Drug Abuse Act, and was indeed passed before the elections. That act, and the 1988 act that followed, contain a unique 100-to-1 sentencing provision requiring judges to impose mandatory minimum sentences of at least 10 years for anyone possessing with intent to distribute just 50 grams of crack (about the size of a candy bar), and 5 years for simple possession of 5 grams. People convicted of possessing powder cocaine are not subject to mandatory sentences unless they are convicted of possessing with intent to distribute 100 times more powder.

The Sentencing Commission's recent attempt to ameliorate this disparity touches just the tip of the iceberg. Still, it is a beginning. Eligible crack offenders will generally receive a one-to two-year decrease in their sentences. The commission calculates that 16,700 of the 19,400 offenders potentially eligible for the decrease are African-American. In northern Illinois, 36 people will be eligible for release this year.

And, although Mukasey neglected to tell Congress, the commission's proposal gives the government the right to argue, in every case, that an offender should remain in prison because of public safety concerns.

As for Len Bias -- autopsy reports show he did not die of crack cocaine. He died of an overdose of powder cocaine and alcohol.

Carol A. Brook is deputy director of the federal defender program for the Northern District of Illinois.

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