The Anti-Drug Abuse Act of 1986 provided for increased penalties for violations of the Controlled Substances Act (91 PL 513), raised authorization ceilings for spending on drug enforcement by $1.7 billion and instituted mandatory minimum sentences for some drug users (Teasley 2001).[1] It is perhaps most notable for establishing minimum sentences for possession of crack cocaine at a much higher level than possession of powder cocaine.[2] The drafting and pass of the law was partially motivated by the death of University of Maryland basketball star Len Bias in 1986.

It was considered and adopted in the second session of the 99th Congress. Despite being an omnibus bill that featured fifteen separate titles, the measure was drafted, considered and passed exceptionally quickly. It was not referred to a Senate committee. Passage of the bill was broadly bipartisan: it initially passed the House 395 to 17 and the Senate 97 to 2. However, there were contentious aspects of its consideration. It was widely viewed as a tool for political gain, as each party tried to be the toughest on drugs to win votes of Americans for midterm elections. Consideration also featured substantial disagreement over an amendment that would have allow the death penalty in certain circumstances for drug-related crimes.

The Anti-Drug Abuse Act of 1986 was listed as landmark by both Stathis (2014) and Mayhew (1991). It was also ranked the sixth most important enactment of the 99th Congress by Clinton and Lapinski (2006). The House considered 25 amendments, adopting 18 of them. In the Senate, members filed 235 amendments, 43 of which were adopted on the floor. There were 21 roll call votes cast during consideration of the bill (15 in the House, three of which were on special rules; 6 in the Senate). The bill never officially went to a conference committee, rather, negotiations were held informally and the chambers traded amendments. Much of the conflict was over the proposed death penalty provision.

The Anti-Drug Abuse Act of 1986 was considered and adopted during the second session of the 99th Congress, just before the 1986 midterm elections. The Congress met from January 3, 1985 to January 3, 1987 during the fifth and sixth years of Republican President Ronald Reagan's presidency. Republicans retained their majority in the Senate, holding a 53-47 seat advantage, while Democrats retained their majority in the House, holding a 253-182 seat advantage. The Congress directly followed the re-election of President Reagan, with his landslide victory of 525-13 over the Democratic candidate, Walter F. Mondale. The Congress was perhaps most notable for passing the second of two "Reagan tax cuts," the Tax Reform Act of 1986, which simplified the tax code.

On the political climate at the time, The New York Times reported: "According to former White House aides, the Reagan drug policy was forged in the heat of a highly political summer when crack was appearing in enormous quantities on city streets, and two major sports stars died of cocaine overdoses."[3] Maryland basketball prodigy Len Bias was one of these tragic deaths (Cleveland Browns safety Don Rogers was the other). Meier (1994, 51) argued Bias' death led to a substantial increase in media coverage of the issue, noting that "[in 1986] 113 magazine articles appeared, six times the number of articles appearing in 1985."

In an interview with Salon, Eric Sterling, who served as counsel during the drafting of the Anti-Drug Abuse Act, stated, "Len Bias's death essentially rocked the world, especially that of sports fans, as many 1980s Congressmen were. He just been drafted at #2 and signed with the Celtics. He died the next morning." Sterling went on to explain additional motives for rushing the legislation: "Ronald Reagan won the presidency by campaigning that he was tougher on drugs and crime than his Democratic opponent. Democrats in the House, therefore, wanted to gain back control by hastily pushing through this legislation." It became a battle of which party could crack down on drugs the toughest and the fastest.

Bias passed away on June 19, 1986. One month later, House Speaker Thomas P. "Tip" O'Neal (D-MA) announced the chamber would undertake a bipartisan anti-drug initiative. Numerous bills were considered over a large number of committees before being merged into one omnibus measure, HR 5484.[4] HR 5484 was formally introduced by Majority Leader Rep. Jim Wright (D-TX) on September 8, 1986. President Ronald Reagan signaled his support for anti-drug legislation on August 4th. In doing so, he added a call for increased drug testing of federal employees.

Many press accounts criticized the speed in which the House was proceeding on the issue. The New York Times noted that "[d]espite the nation’s serious drug problem, experts in drug abuse say that much of the torrent of recent statements and actions by public officials has been based on vague or poorly defined information."[5] Another article argued that federal agencies tasked with combating drugs were uncertain what they would do with the massive increase in funds.[6] Numerous pieces blamed the rushed legislation on the upcoming midterm elections. For example, the New York Times claimed the issue was "lending an emotional charge to an election year that for the most part has been short on national issues and themes." The piece went on to quote Roger Ailes, then a Republican television consultant, who explained "there is a growing feeling that you cannot be too tough on drug pushers." He added that it would be a popular issue with voters.[7]

An omnibus bill, HR 5484 was never referred to or reported out of a committee. Instead, the many bills that were merged to form HR 5484 were referred to a number of committees including but not limited to the House committees on Armed Services, Government Operations, Ways and Means, Energy and Commerce, and Judiciary during the second session of the 99th Congress. These House committees completed their work on the related bills in mid-August. HR 5484 was then formally introduced by Wright on September 8th.

Two days later, on September 10, 1986, Rep. Claude Pepper (D-FL) moved the House consider Hres 541, which would provide for consideration of HR 5484 under a rule that permitted floor consideration of amendments listed in part two of the resolution.[8] The rule was widely supported and debate over it focused more on the substance of the bill than the rule itself.[9] After a fairly short debate, Pepper moved the previous question motion on the rule and this was adopted via voice vote. Hres 541 was then adopted by voice, but Rep. Chalmers Wylie (R-WV) raised a point of order that no quorum was present, resulting in the passage of the rule by roll call, 382-19.

On September 11th, the House considered 25 amendments, adopting 18 of them. Most of the adopted amendments were fairly bipartisan, as members from both parties approved amendment after amendment that increased penalties against drug dealers and added money to programs. The process generated some criticism. Rep. Brian Donnelly (D-MA) asserted it had become "a mob mentality in there."[10] And Rep. Patricia Schroeder (D-CO) dubbed it a "political 'piling on' right before an election."[11]

Three floor amendments were particularly controversial. The first, co-sponsored by Representatives Duncan Hunter (R-CA) and Tommy Robinson (D-AR), required the President to deploy military forces to fight drugs being imported into the United States within 30 days after the law is signed.[12] Or as Robinson put it, the President would not be allowed to "have a jelly bean" before calling in the military.[13] Supporters argued the Hunter-Robinson amendment would be the most direct approach to fighting drugs. For example, Rep. Trent Lott (R-MS) argued in support of the amendment that he "had a constituent tell me, 'You guys quit talking about the war on drugs if you are not going to wage war.' This is war (Congressional Record, 99th Congress, September 11, 1986, 22929)."[14] In contrast, Rep. William Dickinson (R-AL) argued against the amendment, claiming that mandating the use of the military was not practical.[15] The Hunter-Robinson amendment was initially rejected by voice vote. However, Hunter requested a recorded vote and the amendment passed 237-177.[16]

A second amendment, proposed by Rep. Dan Lungren (R-CA), sought to change the "exclusionary rule" to permit the use in court of some evidence obtained illegally. Lungren argued that the "amendment merely says that when the officer in good faith has followed what he thought he should do-and that is based not only on being a reasonable man but also having a reasonable standard of training-that society ought not be punished and the victim ought not to be punished (Congressional Record, 99th Congress, September 11, 1986, 22956)." Rep. Henry Hyde (R-IL) supported the Lundgren amendment, arguing the exclusionary rule was "the criminal lawyer’s best friend (Congressional Record, 99th Congress, September 11, 1986, 22958)."

In contrast, House Judiciary Chairman Peter Rodino (D-NJ) dubbed the amendment "unconstitutional and unwise." He added that "today we have been fighting a war against drugs, and now it seems to me that the attack is on the Constitution of the United States (Congressional Record, 99th Congress, September 11, 1986, 22957)." Other opponents pointed to the lack of hearings on the measure and the subjective standard it established. Lungren’s amendment was adopted 260-154. Eight Republicans joined 146 Democrats in opposition.

Perhaps the most controversial of the three was an amendment by Rep. George Gekas (R-PA) that authorized the death penalty in certain cases. Specifically, cases where there had been "a killing a drug-related crime in the 'course of a continuing criminal enterprise.'"[17] Debate over the amendment was lengthy and heated. In his introductory speech, Gekas claimed his amendment "is society's response to this killer who seems unstoppable at this juncture in our history (Congressional Record, 99th Congress, September 11, 1986, 22965)."[18] He and other supporters argued the amendment would deter would-be drug dealers.[19] In conclusion, Gekas noted that the "American public demands [the death penalty] (Congressional Record, 99th Congress, September 11, 1986, 22976)."

Opponents, like Rep. Don Edwards (D-CA), questioned the amendments' effectiveness.[20] In addition to raising moral objections, they also argued the amendment was unconstitutional,[21] the death penalty was economically discriminatory,[22] would be expensive to enforce and would place a burden on the Court system. Perhaps most notably, they argued the amendment would jeopardize the bill's chances. Rodino, one of the most outspoken death penalty opponents, claimed this was why President Reagan came out against including the death penalty in the bill.[23] He and others, like Rep. Robert Kastenmeier (D-WI), argued that Reagan's position was due to his recognition that the bill would be filibustered in the Senate by death penalty opponents.[24]

The amendment was adopted 298 to 114. As the figure from voteview demonstrates, the division on this vote was ideological, with 104 of the 114 no votes coming from Democrats, most of whom were fairly liberal.

Despite concern over the speed in which the bill was considered and the content of some of the amendments, HR 5484 passed the House on September 11th with broad, bipartisan support. The roll vote was 395 to 17. As CQ Almanac (1986) notes, "all but one of the 'nays' cast by Democratic liberals who said the House was being stampeded by political considerations into approving provisions that threatened civil liberties. The lone Republican to oppose the bill was Philip M. Crane of Illinois."[25]

HR 5484 was reported to the Senate on September 15th.[26] Instead of being reported to a committee, the Majority Leader, Senator Robert Dole (R-KS), objected to the bill on second reading. Rule XIV of the Senate's rules state that:

"Every bill and joint resolution reported from a committee, not having previously been read, shall be read once, and twice, if not objected to, on the same day, and placed on the Calendar in the order in which the same may be reported; and every bill and joint resolution introduced on leave, and every bill and joint resolution of the House of Representatives which shall have received a first and second reading without being referred to a committee, shall, if objection be made to further proceeding thereon, be placed on the Calendar."

Thus, HR 5484 was placed directly on the calendar.

Floor speeches and press accounts suggest that several senators were concerned by the speed in which the bill was considered. For example, Senator Joe Biden (D-DE), argued the bill was "tailor-made for demagoguery" and he hoped senators would "check [their] political six-guns at the door (Congressional Record, 99th Congress, September 26, 1986, 26437)."[27] And Senator Charles Mathias (R-MD) cautioned against making drastic changes to issues like "a Federal death penalty, vitiating the exclusionary rule, and robbing mental health programs of their already meager funding (Congressional Record, 99th Congress, September 26, 1986, 26462)."

Despite these warnings, on September 26th, Dole asked for, and received "unanimous consent that the Senate now turn to the consideration of the Calendar 979, HR 5484, the House drug bill, and that it be in order to send to the desk on behalf of Senators Dole, Byrd and others, a complete substitute, which is the text of S 2878 (Congressional Record, 99th Congress, September 26, 1986, 26473)." The Senate substitute measure omitted the three most controversial provisions from the House passed bill: the death penalty provision; the weakening of the exclusionary rule and the military force amendment.[28] However, both the death penalty and military force provisions would be offered as floor amendments to the substitute.

In total, senators filed 235 amendments to the bill. Of these, only around 45 were considered on the chamber floor. A large number of these amendments were not directly related to the drug bill (CQ Almanac 1986). For example, by a 57 to 29 vote, the Senate adopted an amendment co-sponsored by Senators Daniel Patrick Moynihan (D-NY) and Hubert Humphrey (D-MN) that urged President Reagan not to meet with Soviet leaders until they had released Nicholas Daniloff. Daniloff was an American journalist arrested in the Soviet Union on espionage charges. The New York Times (1986) went so far as to dub the bill a "drug Christmas Tree."[29]

On September 27th, Senator Alan Dixon (D-IL) offered a modified version of Hunter's military force amendment. Dixon asserted Hunter's amendment was "much stronger" but his would still allow the government to "enforce these [drug] laws (Congressional Record, 99th Congress, September 27, 1986, 26737)." Opponents criticized it as unpractical. The Wall Street Journal noted that then-Secretary of Defense, Caspar Weinberger, had dismissed the House-passed version as "absurd."[30] And Senator Barry Goldwater (R-AZ) claimed that despite its "sex appeal," the amendment would harm military readiness (Congressional Record, 99th Congress, September 27, 1986, 26737)." Goldwater later moved to table Dixon's amendment. The tabling motion was agreed to, 73-14, and Dixon's amendment was not brought up again.

The death penalty provision was offered in an amendment from Senator Mack Mattingly (R-GA), who asserted it was an "essential component of any serious, comprehensive effort to control drug trafficking in this Nation (Congressional Record, 99th Congress, September 27, 1986, 26746)." The amendment was met by a brief, but charged debate. Senator Paula Hawkins (R-FL) read letters from supporters of the amendment. Opponents, like Senator David Durenberger (R-MN), railed against it. Durenberger announced he would "oppose with all the conviction he posses[ed], this ill-timed, unfounded, and unconscionable amendment to this anti-drug bill (Congressional Record, 99th Congress, September 27, 1986, 26748)."

Claiming it was not time to have this debate, Senator William Cohen (R-ME) moved to table Mathias' amendment. The motion to table failed 25-60. Cognizant of a filibuster threat from death penalty opponents lead by Mathias, Mattingly withdrew his amendment. Prior to withdrawing the amendment, Mattingly argued the "test vote" on the failed tabling motion vote should send "a very strong signal to the Senate conferees that we believe that the Senate should accept the House provision on the death penalty (Congressional Record, 99th Congress, September 27, 1986, 26752)." The Senate would pass HR 5484 on September 30th by a 97-2 roll call vote.[31]

Instead of going to a conference committee, House and Senate leaders negotiated informally over the content of the two bills. In addition to stripping the three most controversial amendments, the Senate bill authored 1.4 billion dollars, far less than the 2.2 billion authorized in the House-passed bill.[32] While House leaders considered adopting the Senate bill as is, they instead opted to agree to the Senate bill with an amendment. This amendment increased the amount authorized to 1.7 billion. And while it omitted the exclusionary rule and military force amendments, it included the death penalty provision. The Washington Post suggested the "strong, election-year support for tough criminal penalties against drug-dealers" motivated the decision.[33]

On October 8th the House consider a rule, Hres 576. The rule was self-executing, providing that by adopting it, the House "shall be considered" to have concurred in the Senate amendment to HR 5484 with an amendment.[34] Nearly all House members who spoke on the rule spoke in favor.

For example, Gekas urged its adoption and lauded the inclusion of the death penalty amendment. Speaking about drug kingpins, he asserted it was "appropriate for our American public to enact, as it will today, the ultimate penalty for that scum of the Earth, the death penalty where appropriate (Congressional Record, 99th Congress, October 8, 1986, 26752)." Hunter and Lungren expressed disappointment their amendments were omitted, but Hunter vowed to continue to work on the military intervention amendment in the future. Others, like Rep. James Scheuer (Democrat-Liberal-NY) praised the bipartisan nature of the bill. Scheuer asserted the bill was "truly nonpartisan effort, a brilliant example of how well this two-party House can work when it sets its mind to it (Congressional Record, 99th Congress, October 8, 1986, 29621)." In a statement, Rodino noted he would oppose the rule and amendment on account of the death penalty provision. Hres 576 was adopted 391-23.

CQ Almanac (1986) noted: "The addition of the death penalty language all but ensured that the bill would face a filibuster in the Senate, where even before the House acted, 11 moderate Republicans and 14 Democrats sent letters to their respective leaders warning that inclusion of such a provision would 'make it extremely difficult, if not impossible, to complete action' on the bill." Mathias met with Majority Leader Dole and informed him that he was "prepared to spend Christmas [in the Senate]" to block the death penalty amendment.[36]

On October 15th, a motion to invoke cloture and thus, limit debate, failed 58-38. This was two votes short of the three-fifths requirement. Following the vote, Dole held a negotiating session in his office to seek compromise between opponents and proponents of the death penalty. Eventually, it was agreed that death penalty language in the bill would be replaced with a mandatory minimum life sentence with no parole for those convicted of drug-related murders. The Senate approved of this package by voice vote and sent it back to the House that day.

House and Senate leaders again negotiated over a compromise. House death penalty opponents vowed to opposed any proposal that did not include the provision. Other members objected to a few other changes made by the Senate. Ultimately, a compromise was reached that involved an unusual House rule.

On October 17th, the House considered a second self-executing rule, Hres 597.[37] The rule did two things: First, it concurred in the Senate amendment to the House amendment to the Senate amendment to HR 5484 with another amendment. This amendment did not include the death penalty provision. But adopting the rule also enacted a separate resolution, HCR 415, that would "correct" the legislation by reinserting the death penalty language. This would allow House members to vote for both the bill without the death penalty language and the bill with the death penalty language simultaneously. Or, in the words of the New York Times, "[u]sing a highly unusual procedure devised by the leaders of both parties in the House, a single vote served to send to the Senate bills that were identical in all respects except for the death penalty."[38]

Members of both parties praised the approach and broader process. Rep. Charles Rangel (D-NY) argued this was "one of the finest moments that we have had in the House," and praised the "creativity of the rule" for the success of the bill (Congressional Record, 99th Congress, October 17, 1986, 32718). Gekas expressed disappointment but supported the rule. He noted that that by adopting it, it would send "back to the Senate the drug bill and the death penalty as separate elements. The Senate may adopt either or both, that is a matter it must decide (Congressional Record, 99th Congress, October 17, 1986, 32721)." Calling it a "red-letter day" for the House, Rep. Mike Oxley noted it was unfortunate that it "took the very widely publicized death of basketball star, Len Bias, and football star, Don Rogers, to bring the issue to where it is now." Hres 597 passed 378 to 16, sending both bills to the Senate.

Later in the day on October 17th, Dole moved the Senate concur in the House amendment to the Senate amendment to the House amendment to the Senate amendment to H.R. 5484. He credited the American people and claimed that despite traveling between the chambers five times, "the momentum behind the measure was enormous (Congressional Record, 99th Congress, October 17, 1986, 33246)." After a brief discussion, the motion was adopted via voice vote. As expected, the Senate ignored HCR 415 and avoided another filibuster. The 99th Congress would adjourn the next day.

President Reagan signed HR 5484 into law on October 27, 1986.

The adoption of HR 5484 resulted in numerous consequences. The New York Times reported a statement from Representative Charles Schumer (D-NY) as he recalled the hasty passage of the bill: "Maybe we had the wrong solutions, but not the wrong problem...What happens is that this occurs in one seismic jump instead of a rational buildup. The down side is that you come up with policies too quickly and that the policies are aimed at looking good rather than solving the problem."[40] Some Democrats argued that the legislation focused far too much on law enforcement and not nearly enough on drug education for the youth, as only 12 percent of the $1.7 billion in financing was allocated to such a purpose.

In another interview with the New York Times, Schumer argued: "The drug boom is fueled by the demand of our children. We need to educate our young people to the hazards of drug abuse. Focusing on the supply side alone won’t solve the drug problem." The article went on to explain that education is not as politically expedient as other causes such as law enforcement, which may explain why it wasn't a priority of elected government officials: "Drug education may not produce noticeable effects for a generation, long after most of the Government officials and members of Congress who crafted this bill will have left office."[41]

Further expanding the 1986 legislation, two years later, the Anti-Drug Abuse Act of 1988 (HR 5210; 100 PL 60) was passed. Like its predecessor, it was completed just before the close of the Congress. HR 5210 was also an omnibus bill. CQ Almanac (1988) stated: "The House moved first on an anti-drug bill in 1988 partly in response to the number of drug-related amendments that continued to appear on other bills. By the time the legislation appeared on the House floor over 10 separate House committees had contributed provisions to it."[42] The 1988 bill authorized an additional $2.8 billion to attack the drug problem, widely increased federal anti-drug efforts, and created the Office of National Drug Control Policy to end inter-agency conflict. It also included Gekas' death penalty amendment.

In addition, the Washington Post reported "[t]he bill also contains new attacks on 'recreational' users, including revocation of professional licenses and stiff civil penalties for any drug offenders. 'This sends a strong, unmistakable message,' says Senate Majority Lead Robert C. Byrd (D-WV), 'Don't do drugs. The country will not tolerate it.'"[43] Policymakers believed that mandatory minimum sentences and increased law enforcement efforts would appease the public, win the tougher party votes, and solve the drug problem, but this was not the case.

In the years following the passage of the two anti-drug omnibus bills, negative implications started to arise. In his 1990 piece in the Washington Post, Judge William Schwartzer shared his opinion on the new challenges within the judicial system: "...this sentencing reform is inflicting great evils on the federal courts. It is clogging the courts by forcing to trial many defendants who would have otherwise pleaded guilty and by bringing into federal court many state cases in which the prosecutors seek the benefit of much heavier federal sentences."[44] Regrettably, the anti-drug legislation called for felony charges for possession of small amounts of powder cocaine, and mandatory minimum sentences for possession of even smaller amounts of crack cocaine with the crack-to-powder ratio at 100 to one.

In the previously mentioned interview by Salon, Sterling stated: "Nobody looked at the proper ratios based on how harmful it was. It was completely detached from science. Nobody could say that crack was 100 times more dangerous than powder." Because of its quick drafting, there wasn't sufficient time for research to properly differentiate between the dangers of powder versus crack cocaine, and this lack of diligence produced decades of consequences and racial injustices. In 2011, on the 25th anniversary of Len Bias' death, Sterling stated: "In 1986, the federal prison population was 36,000. Today it's 216,000. And in the 25 years since, more than half of federal prisoners are brought in on drug charges. The prison population is disproportionately black and Hispanic. The federal government does about 25,000 cases a year and only one out of four of those defendants is white."

Attempting to correct their severely flawed and racially biased legislation, Congress passed, and President Barack Obama signed into law the Fair Sentencing Act of 2010 (S. 1789; 111 PL 220). The New York Times reported that "Congress addressed the issue by passing the Fair Sentencing Act of 2010, which reduced the sentencing disparity to 18 to one. In June, the United States Commission voted to apply the guidelines retroactively, with the new policy going into effect on Monday this week."[45] The article went on to discuss the effects of the Commission's interpretation of the bill: "Over time, some 12,000 inmates could have their sentences, which average 13 years, shortened by an average of three years." This legislation has successfully helped to partially right the wrongs caused by the 1986 bill, but many argue that the ratio should be zero to zero.

Clinton, Joshua and John Lapinski. 2006. "Measuring Legislative Accomplishment, 1877-1994," American Journal of Political Science 50(1): 232-249.

Mayhew, David R. 1991. Divided We Govern: Party Control, Lawmaking and Investigating: 1946-1990. New Haven, CT: Yale University Press.

Meier, Kenneth J. 1994. The Politics of Sin: Drugs, Alcohol and Public Policy: Drugs, Alcohol and Public Policy. Routledge.

Stathis, Stephen W. 2003. Landmark Legislation 1774-2002: Major U.S. Acts and Treaties. Washington, D.C.: CQ Press.

Stathis, Stephen W. 2014. Landmark Legislation, 1774-2012: Major U.S. Acts and Treaties, 2nd Edition. Washington: CQ Press

Teasley, David. 2001. “Crime Control: The Federal Response.” Congressional Research Service, January 24.