In a 1986 law that must surely rate as one of Congress’s most ill-informed overreactions to a high-profile tragedy– the cocaine-related death of college basketball star Len Bias — a new mandatory minimum ten-year sentence was created for drug offenders involved in dealing 50 or more grams of “cocaine base.” Never mind that Bias used the powder form of cocaine. Never mind that crack — the form of cocaine that everyone was really concerned about at the time — is only one type of cocaine base. Congress instead chose to direct the harsh new penalties at cocaine base, a category that is narrower than all cocaine, but broader than just crack (at least if the term “cocaine base” is understood literally). As is now well known, the result of this unfortunate law has been to create massive racial disparities in federal drug sentencing between white defendants (who are typically involved with powder) and black defendants (who are more typically involved with crack).
Although “cocaine base” cases normally involve what is undisputably crack, defendants have from time to time litigated whether a particular susbtance really triggers the ten-year minimum. These cases have produced a longstanding circuit split, with six circuits (the First, Second, Third, Fourth, Fifth, and Tenth) reading “cocaine base” to encompass all forms cocaine that are chemically classified as a base, and five circuits holding that “cocaine base” means more narrowly what Congress was really concerned about, i.e., crack and other types of smokable cocaine base. With today’s cert. grant in DePierre v. United States, 599 U.S. 25 (1st Cir. 2010), the Supreme Court appears poised finally to resolve the issue.
The facts of DePierre nicely illustrate the pernicious effects of the artificial distinction created by the 1986 law. A government informant purchased powder cocaine from DePierre in February 2005. Federal agents could have arrested DePierre at that time, but decided instead to invite a crack deal with the deliberate purpose of increasing the sentence. Cocaine is easily cooked into crack, so the informant’s request to receive his next delivery of cocaine in crack form presented no large difficulty for DePierre, who eventually sold the informant 55.1 grams of what the government alleged was crack — just a little more than necessary to trigger the ten-year minimum. Whether or not these facts satisfy the demanding legal requirements for the entrapment defense — DePierre’s jury decided not, and the question is not now before the Supreme Court — the government’s conduct was at the least unseemly. Yet, given the enormous consequences the law attaches to an arbitrary distinction, it is easy to see the temptation for the government to induce crack deals.
Although we ought to welcome any narrowing of the “cocaine base” law, even if the Court does rule on the side of the defendant in DePierre, we will still have a basically arbitrary distinction in place. (For an illustration of the difficulties created by using “crack” as the key term, see my earlier post here.) More promising is the recently-enacted Fair Sentencing Act of 2010, which raised the triggering quantity for the ten-year minimum to 280 grams. It will be interesting to see if and how the new law affects law-enforcement practices. For instance, would the agents pursuing DePierre have engineered several additional crack deals in order to reach the 280-gram threshhold?
Cross posted at Marquette Law Faculty Blog.