By: Edward Martinovich, Attorney at Law and Helen O. Kim
Crack cocaine (hereinafter referred to as crack) is the concentrated form of powdered cocaine, manufactured to be smoked through a heated pipe. An individual who smokes and inhales crack will immediately feel a short-lived euphoria, followed by a crash. Some people argue that the effects of ingesting crack is different than ingesting powder cocaine while others maintain that crack is chemically different from powdered cocaine. In the legal arena, federal and state legislatures have distinguished crack from powder cocaine and assign harsher punishment for those persons charged with possession of crack than those persons charged with possession of powdered cocaine.
United States Sentencing Guideline
The United States Sentencing Guidelines Manual 2D1.1(c) assigns a 1:100 ratio between crack and powder cocaine. In other words, it treats 1 gram of crack as being equivalent to 100 grams of cocaine in drug quantity. Congress has offered five reasons for the distinction: (1) crack is more addictive than powdered cocaine; (2) there is a greater relationship between crack and serious crimes than with other drugs; (3) crack has a more dangerous physiological effect than powdered cocaine; (4) young people are more prone to use crack than powdered cocaine; and (5) cracks affordable cost per dose leads to more widespread use. States have strayed from the 1:100 ratio; however, they continue to distinguish between crack and powdered cocaine, assigning harsher penalties for crimes involving the use, possession, sale or transportation of crack.
The Sentencing Commission and the Clinton Administration had offered a series of recommendations to amend the 1:100 ratio to narrow the penalty gap between crack and powder cocaine. In 1995, the Sentencing Commission submitted an amendment to eliminate the 1:100 ratio. In 1997, the Sentencing Commission submitted a report to reduce the 1:100 ratio to 1:5. When that suggestion was not well received, the Sentencing Commission further proposed to amend the distinction to a more favorable 1:20 ratio. The Clinton Administration submitted a proposal of a 1:10 ratio between crack and powder cocaine. However, Congress has not adopted any of these recommendations.
Equal Protection Clause
There have been numerous debates as to whether the disparity in sentencing between crack and powder cocaine violates the Equal Protection Clause of the United States Constitution. In State v. Russell, defendants claimed that the 3:10 ratio between crack and powder cocaine in Minnesota Statute 152.023 violated the Equal Protection Clause because it created harsher penalties for crack users than users of powder cocaine. 477 NW2d 886 (Minn. 1977). The defendants also claimed that the statute had a discriminatory impact on African-Americans because African-Americans predominantly use crack whereas non-African-Americans predominantly use powder cocaine. As a result, a far greater percentage of African-Americans was sentenced for possession of crack with harsher penalties than their caucasian counterparts, who possessed an equal amount of powder cocaine. Id. Defendants provided the Minnesota Supreme Court with statistics that revealed that in 1988, 96.6% of persons charged with possession of crack were black while 79.6% of persons charged with possession of powder cocaine were white. Ibid. at 887, note 1.
The state stated that the distinction is justified because crack is more addictive than powder cocaine, crack users display more violence than users of powder cocaine, and there is more street-level dealing of crack than powder cocaine. 477 NW2d at 890. The Minnesota Supreme Court was not persuaded by the states arguments and opined that crack is not more addictive or dangerous than powder cocaine because powder cocaine could readily produce the same effects purported to justify a harsher penalty for possession of crack. Id. at 891. The Court also stated that not enough evidence was produced to justify the contentions that there is greater violence in crack users than users of powder cocaine or that the 3:10 ratio was indicative of street-level dealing. Hence, the Minnesota Supreme Court held that the statute violated the Equal Protection Clause. Ibid.
In State v. Bryant, the defendant was indicted for possession of crack in violation of the Ohio Revised Code (ORCA) 2925.11(C)(4)(d). 1998 Ohio App. LEXIS 3308. Under ORCA 2925.11(C)(4)(d), the defendant was charged with second-degree felony for possession of 13.07 grams of crack. ORCA2925.11 assigns a 1:20 ratio between crack and powder cocaine so under ORCA2925.11(C)(4)(b), the defendant would have been charged with the significantly lesser offense of fourth degree felony for possession of 13.07 grams of powder cocaine. The Ohio Court of Appeals determined that crack is chemically different from powder cocaine and has a greater addictive impact on its users than powder cocaine. The Court stated that crack is more potent than powder cocaine because crack is smoked and inhaled, creating a more potent rush and a more powerful high than powder cocaine. Bryant, 1998 Ohio App. LEXIS 3308 at 9. The Court concluded that crack is more dangerous to the user and society than powder cocaine, and, therefore, the statute was not in violation of the Equal Protection Clause of the US Constitution, and that the1: 20 ratio between crack and powder cocaine was justified and rational based on the greater danger posed by crack. Id. at 10.
In US v. Chisholm, the defendant was charged with supplying powder cocaine to crack dealers who were planning to convert the defendants powder cocaine to crack. 73 F.3d 304 (11th Cir. 1996). The defendant maintained that he could not have reasonably foreseen that the powder cocaine he sold to co-defendants would be converted to crack. Hence, the defendant argued that he should be sentenced in accordance with the guidelines for powder cocaine and not crack under the United States Sentencing Guidelines Manual 2D1.1 (c)(1). Id. at 308. The United States Court of Appeals agreed that there was no evidence in the record to show that the defendant knew of, or agreed to, the planned conversion of powder cocaine to crack from his limited communication and contact with the co-defendants. Thus, the Court concluded that the defendant should be sentenced according to the schedule relevant to the crime relating to powder cocaine and not crack under the United States Sentencing Guidelines 2D1.1(c)(1), resulting in a lesser penalty. Id. at 309.
While Congress has not amended the 1:100 ratio in the United States Sentencing Guidelines, the Supreme Court has made federal sentencing guidelines merely advisory. US v Booker, 125 S. Ct. 738 (2005). In US v Tabor, United States District Judge Richard G. Koph commented that, although he did not agree with the 1:100 ratio in the sentencing guidelines, he would abide by the 1:100 ratio because judges lacked the institutional capacity to set and enforce national standards. 365 F. Supp. 2d 1052, 1061. In US v Villalona, the Court upheld the validity of the legislatures distinction between crack and powder cocaine based on the difference in their usage and effect. 2005 U.S. App. LEXIS 14281, 4. The Court stated that crack is chemically different from [powder] cocaine. It is used differently than [powder] cocaine. Its effect upon the human body is different from that of [powder] cocaine. Id. Although the Court found that the 1:100 ratio did not violate defendants Equal Protection rights, the Court assigned a punishment that represented approximately a 1:5 ratio instead. Id. Furthermore, in US v Leroy, the Court applied a 1:20 ratio for sentencing the defendant, as suggested by the 2002 Sentencing Commission, instead of the current 1:100 ratio. 2005 U.S. Dist. LEXIS 12653.
As one can see from the discussion herein, the courts have unevenly applied the federal sentencing guidelines as they relate to crimes involving powdered cocaine and those involving crack cocaine. Some federal trial courts have made it clear that there should be no difference in sentencing while others maintain the opinion that crimes involving crack cocaine should be treated more severely. One thing is very clear, though, any person involved in a federal criminal prosecution needs to consult with an attorney who is licensed to practice law in the jurisdiction in which the prosecution is based and one who is fully experienced in federal criminal law and procedure.
It is clear by the United States Supreme Courts opinion in the controversial US v. Booker case, 125 US 738 (2005), the federal sentencing law is under scrutiny and a smart attorney will use the reasoning in this case to his clients best advantage. The Court held in pertinent part, in Booker, that the federal sentencing guidelines are mandatory and must be followed by federal trial judges in the imposition of sentence. It went on to state that where departures from the guidelines are recognized, and these instances are rare, judges must give reasons on the record for the mitigated or aggravated term imposed. In Booker, however, the court imposed a much harsher sentence than was permitted by the guidelines by making factual findings not otherwise found by the jury, the finders of fact therein. Consequently, the Supreme Court held that was contrary and at odds with defendant Bookers 6th Amendment right to a trial by jury. Again, there is no substitute for the advice and counsel of a skilled and experienced criminal defense attorney. If faced with a federal investigation or prosecution, seek such advice immediately.