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Justice delayed

Howard Manly | 6/23/2008, 8:39 a.m.

The death of Len Bias is often mentioned in stories involving the dark days of the Boston Celtics.

Back in 1986, Larry Bird, Kevin McHale and Robert Parish had led the team to its 16th NBA championship, finishing off the Houston Rockets here in Boston on June 8. Nine days later, with the number two overall pick in the league’s first-year player draft, the C’s selected Bias, an All-American at the University of Maryland, to carry forth the winning tradition.

Two days after the draft, the 22-year-old Bias was dead from a cocaine overdose.

It was clearly a tragedy, a promising life cut short, and his death reverberated well beyond the rafters of the old Boston Garden, through the hallowed halls of Congress and ultimately to prisons across the nation.

It was on Capitol Hill that House Speaker Thomas P. O’Neill Jr. set forth an ultimatum for his congressional colleagues to come up with a comprehensive crime bill to help eradicate the crack epidemic spreading through inner cities across America.

If Bias’ death represented the beginning of the dark days for Celtics fans, it also symbolized an even darker period for the American justice system. With President Ronald Reagan at the helm, “get tough on crime” was more than an idle threat.

O’Neill was particularly motivated, largely because his home district office in North Cambridge was flooded with letters and telephone calls from horrified residents — and Boston Celtics fans — for one of the most powerful people in Washington, D.C., to do something, anything, to make things right.

What O’Neill did when he returned to Washington in August from a July 4 recess was instruct his colleagues to conclude all committee work on proposed legislation to combat crime. He gave them five weeks.

And what they came up with, the Anti Drug Abuse Act of 1986, included a section dealing specifically with crack.

Under those federal guidelines, enacted on Nov. 1, 1987, a person caught with five grams of crack faced a mandatory five-year sentence and maximum of 20 years.

That’s FIVE YEARS for possession of a drug weighing about the same as two pennies.

The only problem with those guidelines is that they were unconstitutional, and that it took almost as long for the powers that be to do anything about it as it did as for the Celtics to win their 17th championship.

The specific problem — and, some argue, the inherent racism — with the guidelines was the relative lack of punishment for those defendants caught possessing powder cocaine.

For the same five grams of crack cocaine, the guidelines called for those in possession of powder cocaine to receive a misdemeanor that carried no mandatory minimum sentence. The maximum sentence was one year. A person would have to possess 500 grams of powder cocaine to receive the same punishment as someone possessing five grams of crack, a 100-to-1 ratio.

As I reported in the Boston Globe in 1994, no separate hearings were held on the crack statute, and it was written into law after only about 3 and half hours of discussions.

“It was more like the floor of the Stock Exchange where there is a rush to sell or buy a particular commodity,” Eric Sterling, who served as counsel to the House Judiciary Subcommittee on Crime, told me at the time. “It was sheer panic. Everyone felt that the spotlight for solving the drug crisis was on them. And if it wasn’t, they wanted it to be on them.

“In some sense, legislators viewed the crack epidemic the same way Germans saw the Jews,” Sterling continued. “If only they could get rid of those people using crack, then we would have a better society. All of our other problems would go away. The crime bill was the distillation of every fear, anger and resentment that members of congress felt about their impotence to solve the scary things in life.”

According to one observer of the legislative process, the 100-to-1 ratio was originally a 50-to-1 ratio in the subcommittee’s bill, and was arbitrarily doubled to symbolize “redoubled congressional seriousness.”

The racial disparities were significant. Over a four-month period in 1992, the U.S. Sentencing Commission reported that in cocaine powder convictions, 45.2 percent of the defendants were white, 29.7 percent were black and 23.3 percent were Hispanic.

But in crack cocaine convictions, 92.6 percent of the defendants were black, 4.7 percent were white and 2.6 percent were Hispanic.

Another major problem with the sentencing guidelines was that there was no medical evidence to suggest that there was any pharmacological difference between crack and powder cocaine that would warrant a 100-to-1 ratio.

Cocaine is cocaine.

Proponents argued that crack was more associated with inner-city violence. But even that was weak, and certainly couldn’t withstand legal scrutiny.

And yet it did. In fact, in 1997, the U.S. Supreme Court refused to hear arguments on the racial disparities and let stand lower court rulings that defended the guidelines on the grounds that — at least in their minds — Congress had not intended to discriminate along racial lines.

But politics is politics, and during those dark days of brazen criminality, no politician wanted to be seen, perceived or even associated with anyone or anything that remotely resembled being soft on crime.

But justice is justice.

It took a while but it did, finally, come.

It was a trickle at first.

During a congressional hearing in March 1994, U.S. Supreme Court Justice Anthony M. Kennedy was subtle and critical. “I simply do not see how Congress can be satisfied with the results of mandatory minimums for possession of crack cocaine,” he testified.

His critique followed two lower level federal cases in 1994 that held that the crack sentences were unconstitutional. In the first, U.S. District Judge Louis Oberdorfer ruled that mandatory sentences violated the Eighth Amendment’s prohibition of cruel and unusual punishment.

A month later, U.S. District Judge Clyde S. Cahill of Missouri ruled that the statute violated the 14th Amendment’s guarantee of equal protection under the law.

The statute “has been directly responsible for incarcerating nearly an entire generation of young, black American men,” Cahill declared. He even refused to impose stiffer sentences on one defendant.

Cahill blamed Congress for passing a law that, though “well-intentioned,” suffered from “unconscious racism.”

It wasn’t until November 2007 that the U.S. Sentencing Commission changed the guidelines to reduce the disparity.

It wasn’t until a month later that the U.S. Supreme Court upheld decisions by lower court judges who rejected the federal guidelines as too harsh and instead imposed more lenient terms.

It would be unfair to compare Boston’s celebration of the Celtics to the righting of a legal wrong.

But it would also be unfair to let justice go unnoticed — without even a note of appreciation.

Howard Manly is the executive editor of The Bay State Banner. Want to let him know what you think? E-mail him at hmanly@bannerpub.com or sound off in the comments.