RACIAL DISPARITY IN "CRACK" COCAINE SENTENCING
by Marcia G. Shein and Stephen Joseph
Marcia G. Shein, M.S., J.D., is President of National Legal Services, a Federal Sentencing and Appellate consulting firm located in Atlanta, Georgia. Ms. Shein has testified before the Federal Sentencing Commission and is author of the Sentencing Defense Manual published by the Clark Boardman Callaghan. Stephen Joseph is a recent graduate of Georgia State University College of Law and part time law clerk for National Legal Services and C.H. Miller & Associates. National Legal Services is located at 710 Lake View Avenue, N.E., Atlanta, Georgia 30308, (404) 874-9553.

Introduction

A New York Times/CBS News poll has periodically asked Americans to identify "the most important problem facing this country today."' In January, 1985, 23 percent answered war or nuclear war; less than one percent believed that the most important problem was drugs. In September of 1989, shortly after President Bush assailed the drug problem before a prime-time address on national television, another poll was taken to gauge the nation's attitude on drugs. The results of the poll showed that 54 percent of those polled believed that drugs were now the most important problem, and only one percent thought that war or nuclear war was most important . 2

During the late 1980's, the country entered into an era of frenzied focus on the drug problem. Politicians from both parties made increasing demands for a "war on drugs." 3 Newspapers, magazines and the popular media regularly carried stories of an alleged "epidemic" or "plague" of drug abuse that they claimed was at the heart of some of the gravest problems facing our society.

In response to the public clamor over drugs and crime, Congress passed the Comprehensive Crime Control Act (CCCA) of 1984. 4 The COCA has had a dramatic effect on the way that federal defendants are sentenced.5 Among the recent amendments to the CCCA was a provision for providing for a 100 to 1 enhancement ratio between powder cocaine and "crack" cocaine.6 Effective as of October 17, 1986, Congress created a mandatory minimum penalty structure for possession with intent to distribute cocaine hydrochloride (cocaine powder) and cocaine base, commonly known as crack cocaine:

Under new distinctions, a defendant who is convicted of possessing with the intent to distribute 453.6 grams (one pound) of powdered cocaine would serve significantly less time in a federal prison than a defendant convicted of possessing with the intent to distribute only five grams of cocaine base. The "100 to l ratio" of cocaine base to cocaine found in the Sentencing Guidelines is derived directly from 21 U.S.C.A. § 841(b), which mandates the same minimum sentence for crimes involving fifty grams or more of a substance containing cocaine base as it does for crimes involving 5,000 grams or more of powder cocaine.$ Crack cocaine is the poor man's cocaine.

This article argues that the crack provisions passed by Congress and the Guidelines tracking the Code are impacting on a disproportionate basis upon the black community 9 Among those in local jails charged with a drug offense, the percentage of blacks rose from 35 percent to 48 percent. 10 In 1989, nearly three-fourths of those confined in local jails for drug charges were either black or Hispanic.11 Further, powder cocaine and crack cocaine are not sufficiently distinguishable to warrant punishing crack cocaine users 100 times more severely than powder cocaine users. 12

Crack: Nebulous definitions

"Crack" cocaine, or cocaine base, has been described as any form of cocaine with a hydroxyl radical in the chemical compound. United States u Brown, 859 F.2d 974, 975-76 (D.C. Cir. 1988). In lay terms, "crack" is any form of cocaine that can be inhaled, goes rapidly to the for initial uses. 13 In spite of the public uproar about crack cocaine, recent studies show that crack cocaine is no more dangerous than ordinary powder cocaine. 14

Constitutional challenges to the crack provisions

There have been an array of challenges to the crack provisions of 21 U.S.C.A. § 841(b)(1)(A)(iii) and the Sentencing Guidelines for cocaine base under § 2D 1.1. Virtually all have failed.

Due process challenges

In United States u Galloway, 951 F.2d 64 (5th Cir. 1992) the Fifth Circuit held that the crack cocaine provisions of the Sentencing Guidelines did not violate due process or equal protection rights of black defendants. The Court noted that, "While it is indeed true that the guidelines treat crimes involving crack cocaine more harshly than those involving other forms of cocaine, Galloway's constitutional arguments are devoid of merit." 65. In finding that there was a rational basis for the 100 to 1 ratio, the Court stated:

Cocaine base is a different drug from cocaine, and, because it is prepared for inhalation, concentrates and magnifies the effect of one gram of cocaine to such a degree that dealers profitably can sell it in very cheap yet still-potent quantities.

Equal protection challenges

Like due process, claims of violation of equal protection have not fared well in the federal courts. In United States u Thomas, 900 F.2d 37, 39 (4th Cir. 1990), the court held that the penalty structure for crack offenses as outlined in 21 U.S.C. § 841(b) was rationally related to a legitimate state end. In United States u Cyrus, 890 F.2d 1245, 1248 (D.C. Cir. 1989), the court found a rational relationship between the disparity in crack and powdered cocaine sentencing provisions and a legitimate government purpose.

One bright spot has been the Minnesota Supreme Court's decision in State v. Russell, 477 NW.2d 886 (Minn. 1991) (en banc). In Russell, the court struck down Minnesota's crack cocaine statute, which is identical to the federal statute. The court held that the evidence did not establish the existence of a rational basis for statutory distinction between quantity of cocaine powder possessed and quantity of crack cocaine possessed, and therefore the statute violated the equal protection provision of the State Constitution due to its discriminatory impact on blacks. As with Galloway, the court in Russell pointed out that there were more blacks being prosecuted for crack than whites. The court noted that of all persons charged with possession of cocaine base in 1988, 96.8 percent were black. Of all persons charged with possession of powder cocaine, 79.6 percent were white. Russell,

Eighth Amendment challenges

In United States u Pickett, 941 R2d 411 (6th Cir. 1991), the court considered an Eighth Amendment challenge to the 100 to 1 ratio. The court held that the Cruel and Unusual Punishment Clause of the Eighth Amendment was not violated by the Sentencing Guidelines rule that illegal possession of one gram of crack cocaine was equivalent for sentencing to 100 grams of cocaine powder. The court cited other circuits that have considered an Eighth Amendment challenge to § 841(b) and rejected it. United States u Buckner, 894 F.2d 975 (8th Cir. 1990); United States u Colbert, 894 R2d 373 (10th Cir.), cert. denied-U.S. - , 110 S. Ct. 2601, 110 L. Ed. 2d 281 (1990); United States u Cyrus, 890 F.2d 1245 (D.C. Cir.1989); United States v Malone, 886 R2d 1162 (9th Cir.1989); See also United States v Whitehead, 849 F.2d 849, 860 (4th Cir.), cert. denied, __U.S._, 109 S. Ct. 534, 102 L. Ed. 2d 358 (1988); United States v. Holmes, 838 R2d 1175,1178-79 (11th Cir.), cert. denied, U.S. -,108 S. Ct. 2829, 100 L. Ed. 2d 930 (1988). The court in Pickett cited the United States Supreme Court's most recent look at the Eighth Amendment, Harmelin v Michigan, IJ.S.__, 11 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), and held that the 100 to 1 ratio was consistent with Harmelin. These constitutional arguments may be correct per se, but the disparate impact of "crack" statutes and sentences remains.

The "war on blacks"

Increasingly, the "war on drugs" is being transformed into a "war on the poor and the black." The situation is especially alarming when one considers that there are more black males in prison than in college. 15 In 1986, the number of young (defined as being in the age group of 20-29) black males under the control of the criminal justice system 609,690-was greater than the total number of black men of all ages who were enrolled in college-436,000. 16 Almost one in four (23 percent) of the nation's black men in the age group 20-29 are either in prison, jail, on probation, or on parole in any given day. 17 Up to 15 percent of all black males living in the United States will spend some portion of their adult lives in adult prisons. 18

The role of defense counsel in crack cases

Counsel in a few cases have been fortunate enough to get an evidentiary hearing regarding their contention that the crack provisions are unconstitutional. An evidentiary hearing on alleged discriminatory statutes are sought under the Supreme Court's holding in United States v Carolene Products Company, 304 U.S. 144 (1837). Carolene Products can be used as the basis to show that an evidentiary hearing is necessary to show that the crack provisions of the Code and the guidelines have no rational basis and have a discriminatory impact upon the black and hispanic communities. Carolene Products involved the constitutionality of the "Filled Milk Act." Carolene Products contended that the statute violated the Equal Protection Clause of the Fifth Amendment to the United States Constitution. In agreeing with Carolene Products that an evidentiary hearing was mandated by the facts, the Supreme Court stated that:

Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judical inquiry (cites omitted) ... Similarly, we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support and reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition (cites omitted). 153-54.

Another case that recognized the need for an evidentiary hearing was village of Arlington Heights v Metro politan Housing Development Housing Development Corporation, 429 U.S. 252 (1977). In this case, the petitioner contended that a zoning ordinance was racially discriminatory, in violation of the Equal Protection Clause. In siding with the petitioner and holding that an evidentiary hearing was needed, the Court made the following remarks:

Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available ... Sometime a clear pattern, unexplainable on grounds other than race emerges from the effect of the state action even when the governing legislation appears neutral on its face. (cites omitted). 267.

An evidentiary hearing on the disproportionate impact of crack prosecutions was held on April 15, 1992 before U.S. Magistrate Joel Feldman in the Northern Disrtict of Georgia. 19 Attorneys for the several black defendants charged with crack offenses managed to get a consolidated evidentiary hearing on the issue of the disproportionate impact of crack prosecutions on black defendants- 20

At the hearing, attorneys from the Federal Defender Program introduced into evidence an Affidavit from Michael Hutcheson, an investigator with the Federal Defender Program in Atlanta. Mr. Hutcheson's Affidavit showed that he obtained a list of 345 drug defendants charged in drug related cases in the Northern District of Georgia for the year 1990 through September 30, 1991. Statistical information on 334 out of the 345 defendants were gathered. Out of the 334 cases, seventy were crack prosecutions. After dividing the seventy defendants by race and gender, the investigator was able to determine that fifty-one of the seventy defendants were black males; thirteen were black females; two were white-Hispanic males; one was a white-Hispanic female; two were blackHispanic males; and one was a white female (who was married to a black male). There were no white males charged with crack offenses. A breakdown of the statistics 22 indicated that 99 percent of the crack defendants were black or Hispanic. Though not conclusive, this data suggests that the brunt of the crack cocaine prosecutions are directed at blacks. 23

Conclusion

Crack is an especially dangerous way to use an already risky drug. Even if crack causes more immediate addiction responses than cocaine they would not justify the end result of the interest disparity issues evidenced. This, however, should not form the basis for punishing crack users 100 times more severely than cocaine powder users. The purposes of sentencing are defeated by the crack provisions of the Code and the Guidelines. The ABA has recognized the importance of proper sentencing determinations when it stated that:

The consequence of a sentence are of the highest order. If too short or of the wrong type, it can deprive the law of its effectiveness and result in the premature release of a dangerous criminal. If too severe or improperly conceived, it can reinforce the criminal tendencies of the defendant and lead to a new offense by one who might not have offended so seriously again.

The onerous mandatory minimum sentences for crack offenses provided for under the under the Anti-Drug Abuse Act of 1986 was the result of frenzied political action. Less severe penalties would just as well serve society's interests of deterrence and punishment. While segregating crack users from society is a laudable goal of the federal government, it cannot come at the expense of punishing on a disproportionate basis the most vulnerable members of our society. Severe sentencing for crack offenders may send a message to drug users, but it does very little to assist the penological efforts to reform and rehabilitate drug offenders.

Notes

1 Reinarman, C. & Levine, H., "Crack in Context: Politics and Media in the Making of a Drug Scare," 16 Contemporary Drug Problems 535, 537 (Winter, 1989).

2 Id.

3 536.

4 Pub. L. No. No. 98-473, reprinted in 1984 U.S. Code Cong. & Ad. News (98 Stat.) (Title II of H.R.J. Res 648).

5 For a review of the CCCA and its legislative history, see Berg, D., & Androphy, J., "The Comprehensive Crime Control Act of 1984," 23 Houston Law 37 (MarchApril 1986); See also "Symposium on the Crime Control Act of 1984," 22 (1985); "The Comprehensive Crime Control Act of 1984," 32 Fed. Bar News J. 7 (Feb. 1985).

6 Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (amending various titles of U.S.C.).

7 The Drug Equivalency Tables following the Com mentary to § 2D1.1 equate one gram of crack cocaine to 100 grams of cocaine powder. See Federal Sentencing Guidelines Manual, § 2D1.1, Drug Equivalency Tables, p. 76 (West 1990).

8 Compare 21 U.S.C.A § 841(b)(1)(A)(iii) (1982 & Supp. V 1987) (crack) with § 841(b)(1)(A)(ii)(II) (1982 & Supp. V 1987) (cocaine).

9 See Ross, J., "Coming down on `crack'; well-intended efforts run the risk of becoming racist in nature," The Los Angeles Daily Journal, p. 4, col. 3 (September 16, 1986).

10 Harlow, C., "Drugs and Jail Inmates," Bureau of Justice Statistics Special Report (U.S. Department of Justice) (1989).

11 3.

12 For a thorough discussion of cocaine, its effects and its usage rates, see the following articles: Cravey, R., "Cocaine Toxicity," 32 Trauma 43 (August 1990); As selin, W., "Cocaine, `Crack,' `Ice' and Cannabis: Phar macological Effects, Dosage Forms, and Recent Trends in Abuse," 48 The Advocate 533 (July 1990); Cordess, C. & Murray, K., "Forensic Aspects of `Crack' Abuse," 31 Medicine, Science, and the Law 249 (July 1991); Cloud, M., "Cocaine, Demand, and Addiction; A Study of the Possible Convergence of Rational Theory and National Policy," 42 Vand. L. Rev. 725 (1989); "Research on Crack" (Symposium), 16 Contemporary Drug Prob lems (Winter 1989 & Spring 1990).

13 Cocaine powder is an acid salt in which cocaine is joined with hydrochloride; the chemical formula is C17H21NO4. HCL. Crack cocaine is a bitter crystalline alkaloid (hence the term, cocaine base) made from co caine hydrochloride, usually by adding ammonia or bak ing soda and heating the mixture to drive off the hydrochloride molecule by causing it to react with the ammonia or baking soda. State u Russell, 477 N.W.2d 886,897&n.3 (Minn. 1991) (en banc). See also "Crack" Cocaine: Hearing before the Permanent Subcommittee on Investigations of the Senate Committee on Govern mental Affairs, 99th Cong., 2d Sess. 20 (1986) (statement of Robert Byck, M.D., Professor of Psychiatry and Phar macology, Yale University School of Medicine).

14 See Fagan & Chin, "Initiation Into Crack and Co caine: A Tale of Two Epidemics," 16 Contemporary Drug Problems 579 (Winter 1989). The authors point to weak evidence that "new generations" of drug users and sellers were created by crack. Comparison of criminal justice and socio-economic data collected from successive and contiguous eras of cocaine use in New York City-cocaine HCL (powdered cocaine) in the early 1980's and crack in the mid-1980's-indicate that crack has not been a wider gateway than powdered cocaine for criminal justice involvement, violent behavior or drug selling.

15 Maurer, Young Black Men and the Criminal Justice System: A Growing National Problem, The Sentencing Project, p. 9 (February 1990).

16 Id.

17 Id. By comparison, only 6.2 percent of the nation's white population is under the control of the criminal justice system (as of 1989). Id.

18 15 Criminal Justice Review 98 (1990) (citing research by Jewelle Taylor Gibbs in her book, Young, Black and Male in America; An Endangered Species, Auburn House Publishing Company (1988)).

19 Renaud, "Crack Penalties Under Attack," Fulton County Daily Report, p. 1 (March 13, 1992).

20 United States v. Rodney Willis, Indictment No: 1:91CR-194-2) (United States District Court for the Northern District of Georgia, Atlanta Division).

21 See attached Affidavit. The Affidavit was submitted in the case of United States v. Ramsey, (1:91-CR-217) (United States District Court for the Northern District of Georgia, Atlanta Division).

22 One major hurdle facing defense counsel in trying to get statistical data into the courtroom is the Supreme Court's holding in McCleskey v Kemp, 481 U.S. 279,107 S. Ct. 1756, 95 L. Ed. 2d 262 (1988). In McCleskey, the Court held that criminal defendants in capital punishment cases alleging an equal protection violation have the burden of proving the existence of purposeful discrimination "had a discriminatory effect" on him. The Court held that statistics (in this case, a complex statisti cal analysis know as the "Baldus Study") could not be used to prove this1767. One possible way around the McCleskey hurdle is to raise a Batson chal lenge. Batson v. Kentucky. 476 U.S. 79,106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In Batson, the Court held that the Equal Protection Clause forbids prosecutors from chal lenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to consider the State's case against a black defen dant

23 Cocaine cases can be analogized to a few marijuana prosecutions in which district courts have struck down the "1000 to 1" marijuana ratio of the Sentencing Guidelines. In United States v Osburn, 756 F. Supp. 571 (N.D. Ga. 1991), the district court held that the drug quantity table of the Sentencing Guidelines violates the due process clause of the Fifth Amendment insofar as it treats one marijuana plant as the equivalent of 1,000 grams of marijuana, as there was no evidence to support the arbitrary 1000 gram ratio. See also United States v. Lee, 762 F. Supp. 306 (D. Kan. 1991) (statute imposing mandatory minimum sentence if defendant possessed with intent to distribute 100 kilograms or more of marijuana plant regardless of weight violated equal protection); But see United States u Lewis, 762 F. Supp. 1314 (E.D. Tenn. 1991) (sentencing guideline that treats one marijuana plant as the equivalent of to one kilogram of marijuana if the offense involves fifty or more marijuana plants does not violate due process; one kilogram is a reasonable estimate of the weight of the entire marijuana plant, stalks, stems, and seeds are often mixed with marijuana leaves to "cut" or dilute them when sold).