THE SLOW FADE OF LEN BIAS' GHOST

Twenty-four years ago, a talented young player from the University of
Maryland was drafted No. 2 overall by the Boston Celtics. Two days
later, he was dead of a drug overdose.

This simple tragedy led to one of the most frivolous detours in
American history - the onerous federal sentencing statute for crack,
which was finally amended by Congress on Wednesday. The story of Len
Bias is a wonderful example of the potential dangers of legislation
based on anecdote rather than study and analysis.

When Bias died, it was big news in Washington because he had played
his college ball with the best team in the D.C. media market. The
people most aggrieved by Bias' death were Boston residents, and they
gave two liberal Massachusetts Democrats, House Speaker Tip O'Neill
and Sen. Ted Kennedy, an earful about how crack had destroyed the
Celtic's future.

When O'Neill and Kennedy got back to Washington, they reacted in the
worst possible way. Because Bias was black, they didn't challenge the
assumption that he used crack (evidence eventually showed a good
possibility it was powder cocaine that caused his death), they did not
hold hearings and they did not consult experts.

Instead, they simply helped rally colleagues to impose harsh mandatory
minimums under which a sentence for selling just 5 grams of crack
would be the same as for dealing 500 grams of powder cocaine. This 100
to 1 ratio was not based on science; they just made it up.
Nonetheless, it was quickly embedded in federal statute and the
federal sentencing guidelines. To understand the severity of the 100:1
ratio, one need only consider the ratio that Texas employs: 1:1.
That's right - in Texas courts, crack is treated the same as powder
for the purposes of sentencing.

The result of the new law was startling: Thousands of black men
received extraordinarily long sentences, yet at the same time, crack
prices fell, indicating that supply was growing. In other words, we
achieved mass incarceration while failing to address the underlying
problem. We were imprisoning the wrong people. Crack is made out of
powder cocaine and usually not "rocked up" until the street dealer
handles it. Thus, the least culpable and most easily replaceable parts
of the supply chain were the ones locked up.

An equivalent plan would be to try to close down America's Walmarts by
arresting the greeters or stock boys.

Once the new ratio was in place, an army of federal agents and
prosecutors was employed to grab at this low-hanging fruit. I was one
of them. From 1995 to 2000, I served as an assistant U.S. attorney in
Detroit, and part of my job was to seek the imprisonment of many young
black first-offenders who either possessed or sold relatively small
amounts of crack. At the time, the guideline sentence for that act was
greater than what one would receive for many cases of manslaughter,
supporting terrorism, polluting groundwater with the knowledge that it
was likely to kill people, and even for prostituting a child.

I grew disgusted, as did many other prosecutors, judges and agents
well aware of the social cost of this ineffective measure. My own
revulsion led last year to a victory in the Supreme Court that allowed
sentencing judges to categorically reject the 100:1 ratio in the
sentencing guidelines, a decision I am happy to say is now largely
made moot by Congress' action.

It is pathetic that it took 24 years to fix this problem. It is also
disheartening that this legislation applies only to future cases and
does not change the sentences of those already in prison. Still, it is
change for the better. It is rare to reverse the ratchet on criminal
sentences, and, in amending the rules on crack, Congress has finally
begun to undo the hasty and untoward effects of Len Bias' ghost
haunting the halls of government.

[sidebar]

WHY I VOTED AGAINST THE CHANGE

"Reducing the penalties for crack cocaine could expose our
neighborhoods to the same violence and addiction that caused Congress
to act in the first place. Crack cocaine is associated with a greater
degree of violence than most other drugs. And more than any other
drug, the majority of crack defendants have prior criminal
convictions. ..."

"Why do we want to risk another surge of addiction and violence by
reducing penalties? Why are we coddling some of the most dangerous
drug traffickers in America?"

. Excerpts of remarks by Rep. Lamar Smith of San Antonio, the top
Republican on the House Judiciary Committee and the only lawmaker to
speak against the bill.