1986
The 1986 Anti-Drug Abuse Act marked a profound shift not only in America's drug-control policy but also in the workings of the criminal justice system. It established the bulk of drug-related mandatory minimums, including the five- and 10-year mandatory minimums for drug distribution or importation, tied to the quantity of any "mixture or substance" containing a "detectable amount" of the prohibited drugs most frequently used today. More importantly, these mandatory sentences completed the transfer of sentencing power from federal judges to prosecutors.
Although the U.S. Sentencing Commission was busy working on federal sentencing guidelines for all crimes, there was not a word of discussion in either the House or the Senate of any potential inconsistency or overlap between the new drug-related mandatory laws and the guideline system that Congress had set in motion just two years earlier.
Crack cocaine and Len Bias
Instead, unprecedented media attention on drugs, bad timing, and tragedy appeared to be driving the drug bill. University of Maryland basketball star Len Bias, 22, had just been drafted by the Boston Celtics and was a local hero. On June 17, 1986, Bias attended a ceremony in Boston to sign a contract with the Celtics. Two days later he died of heart failure, allegedly caused by an accidental cocaine overdose.
Speaker of the House Tip O'Neill (D-Mass.) returned to Boston for the Fourth of July congressional recess and everyone seemed to be talking about the death of the Celtics' first-round draft pick. As fears of crack cocaine swept the nation, O'Neill drove Congress into action. The 1986 Anti-Drug Abuse Act debate was likened to a poker game, with members of Congress upping the ante (and the sentences) for drug offenses. Thoughts of sentencing uniformity and the integrity of the guideline system were quickly eclipsed by the day's headlines. Rep. Robert Dornan (R-Calif.) explained, "I think it comes down to one young man not dying in vain."14
As President and Mrs. Reagan were calling for tough new drug-control laws, Congress rushed to provide them - within a month, the legislation was drafted. Only 16 Congressmen voted against the bill, which passed the Senate by a voice vote. President Reagan signed the final version of the bill on October 27, 1986, just a week before Election Day. By 1987, the U.S. Sentencing Commission had completed its work on the federal sentencing guidelines. Because of the Anti-Drug Abuse Act, the mandatory minimums became "anchors" to set the drug sentencing ranges - but Congress created more mandatory minimums. The Omnibus Anti-Drug Abuse Act of 1988 targeted different drug offenses. At one end of the drug distribution chain, Congress created a mandatory minimum of five years for simple possession of more than five grams of "crack" cocaine. Simple possession of any amount of other drugs - including powder cocaine and heroin, or 4.9 grams of crack - remained a misdemeanor with a mandatory 15-day sentence required only for a second offense. At the other end, Congress doubled the existing 10-year mandatory minimum for anyone who engages in a continuing criminal enterprise (CCE), requiring a minimum 20-year sentence in such cases.
The most significant provision of the 1988 Act, however, was a change in the drug conspiracy penalties. This change increased the potential that the applicable penalties could apply equally to the major dealer and the mid-or low-level participant. Therefore, if a woman tells an undercover federal agent where to buy some LSD, and the agent buys some LSD from a person who possessed five grams of LSD, the woman, as a "conspirator," faces the same mandatory minimum as the person who actually possesses the LSD.
If federal prosecutors had any questions about their role in the war on drugs, the infamous "Thornburgh memorandum" answered them in 1989. Written by the U.S. Attorney General Richard Thornburgh, the memo required them to charge to the fullest extent of the law "the most serious readily provable offense or offenses consistent with the defendant's conduct." This greatly exacerbated the effects of mandatory sentences by insuring federal prisons would be packed with drug offenders.