Equal Protection and Sentencing Disparities between Rock and Powder Cocaine By Katie Davi

Equal Protection and Sentencing Disparities between Rock and Powder Cocaine

 

By

Katie Davis

Nearly one-third of all African-American men between the ages of twenty to twenty-nine are either incarcerated, on parole, or on probation on any given day.[1] The increase in incarceration for young African-American males can be traced back to the “War on Drugs.”[2] The number of African-American and minority inmates increased twice as much as the number of white inmates, and the number of African-American arrests for drug offenses was ten times that of white offenses between 1986 and 1990.[3] This is especially significant because young African-American men compromised only about 13% of monthly drug uses during this time frame.[4] These results can be traced back to federal drug sentencing legislation that differentiated between the two forms of cocaine.[5] Since rock cocaine and powder cocaine are prevalent in different communities, different sentences were issued for the possession of cocaine. As African-Americans quickly realized, they were being punished much worse than their white counterpart. The Equal Protection clause of the United States Constitution has failed to make sure all citizens are treated fairly under the law.

When a law treats two equally situated persons differently based on arbitrary distinctions, the Equal Protection clause has been violated.[6] However, “equal protection does not require that all persons be dealt with identically” but “it does require that a distinction made have some relevance to the purpose for which the classification is made.[7]

A substance derived from the coca plant, cocaine produces both euphoric and stimulant effects.[8] Powder cocaine is a salt, scientifically known as cocaine hydrochloride; while rock cocaine, a hard waxy substance, is made with the cocaine alkaloid but without the hydrochloride.[9] By heating it in water and mixing it with baking soda, powder cocaine can be easily made into rock cocaine.[10] A pound of powder cocaine roughly equals a pound of rock cocaine.[11] Powder cocaine is often inhaled through the nose, but it may also be mixed with water and injected.[12] Dissolving powder cocaine and baking soda in boiling water forms crack cocaine.[13] The resulting “rocks” are single doses that users smoke.[14] In both forms, cocaine is a very powerful stimulant.[15]

Although cocaine was commonly and routinely used for medicinal purposes, linking the drug to African-Americans created a fear that it would cause a rebellion that ended with an attack on white society.[16] Notwithstanding the evidence that proved otherwise, white leaders in the south claimed that cocaine would cause the African-Americans to forget their “place” within their segregated society.[17] Since this continued to fuel the public’s fear, African-Americans were presented as cocaine abusers within the media; this encouraged white America to favor criminalizing the drug in an effort to control the “Black threat.[18]

It was during the 1970s that the use of powder cocaine skyrocketed, mainly within affluent White communities.[19] However, the media did not portray this usage as a problem.[20] Crack in the form that has been constantly demonized within our society, and it is consistently associated with the inner-city and minority users.[21] Statistics collected by the federal government reveal a large correlation between ethnicity and preference for crack or powder cocaine.[22]

Commencing in the 1980’s, the “War on Drugs” caught the nation by storm.[23] With this declaration came legislation and controversy.[24] As the legislature attempted to control this “war,” practical problems have led to a racial disparity within the implementation of the guidelines.[25]  The early 1980s brought with it the buying and selling of crack cocaine.[26] During the 1980s, news stations declared a nationwide crack cocaine epidemic.[27] Fear came from a concern that the use of the drug was spreading outside of the minority groups and threatening white neighborhoods.[28]

This public outcry persuaded Congress to pass the Anti-Drug Abuse Act of 1986, in which a 100:1 ratio of crack versus powder was established.[29]  As demonstrated, a defendant convicted of simple possession of five grams of crack was subject to the mandatory minimum sentence of five years in prison, while a defendant convicted of possessing five hundred grams of powder cocaine was also subject to the same five-year sentence.[30] The 100:1 ratio was established based on five reasons: “crack was highly addictive; users and dealers were more likely to be violent than users and dealers of other drugs; it was more harmful to users than powder; crack use was especially prevalent among teenagers; and crack’s potency and low cost were making it increasingly popular.[31]

These rationales were proven to be untrue.[32] The United States Sentencing Committee conducted many reports after the 1986 act was passed and found that both forms of cocaine have the same physiological and psychotropic effects.[33] The Sentencing Committee also found that the 100:1 ration “’fosters disrespect for and lack of confidence in the criminal justice system’ because of a ‘widely-held perception’ that it ‘promotes unwarranted disparity based on race.[34]’”

President Barack Obama signed the Fair Sentencing Act of 2010 on August 3, 2010 in an

effort to reduce the disparity between sentences of crack and powder cocaine.[35]  Although this act lessens, it does not completely eliminate the disparity between crack and powder cocaine.[36] This act changed the mandatory quantity from five grams to twenty-eight grams of crack cocaine to trigger the five-year mandatory sentence.[37] Since the amount of powder needed to activate the mandatory sentence stayed the same, the cocaine ratio was then reduced to 18:1.[38]

Even though this new legislation lessened the disparity, it still did not resolve the problem. The Equal Protection clause of the United States Constitution was created to assure all individuals were treated equally under the law. African-American defendants have challenged the constitutionality of this legislation and the sentencing disparity in almost every federal circuit by asserting a violation of their rights of equal protection under the laws.[39]  Unfortunately, almost all federal courts have rejected this argument by explaining that the defendants have failed to prove purposeful discrimination from sentencing disparities.[40] For a litigant claiming an equal protection violation regarding the disparity of cocaine sentencing, the Court has made clear that he must show more than the foreseeability of disproportionate impact; he must show that the decision maker “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of’ its adverse affects upon an identifiable group.”[41] Continuing to allow two different sentences for the same drug only furthers this discriminatory effect. Despite its intention, the Equal Protection Clause has failed to serve its purpose, as African-Americans will continue to be subjected to different treatment if this disparity is not corrected.

 

 

[1] David H. Angeli, A “Second Look” at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection Government, 34 Am. Crim. L. Rev. 1211, 1211 (1997).

[2] Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws? 45 Wash. U. J. Urb. & Contemp. L. 121, 130 (1994).

[3] David Cole, The Paradox of Race and Crime: A Comment on Randall Kennedy’s “Politics of Distinction,” 83 Geo. L. J. 2547, 2556 (1995).

[4] Angeli, supra note 1, at 1212.

[5] Id.

[6] Laura A. Wytsma, Punishment for “Just Us” – A Constitutional Analysis of the Crack Cocaine Sentencing Statutes, 3 Geo. Mason Independent L. Rev. 473, 490 (1995).

[7] Baxstrom v. Herold, 383 U.S. 107, 111 (1966).

[8] Paul M. Gahlinger, Illegal Drugs: A Complete Guide to Their History, Chemistry, Use, and Abuse 253 (2004).

[9] David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1290 (1995).

[10] Id.

[11] Id.

[12] Kimbrough v. U.S., 552 U.S. 85, 94 (2007)

[13] Id.

[14] Id.

[15] Id.

[16] Kathleen R. Sandy, The Discrimination Inherent in America’s Drug War: Hidden Racism Revealed By Examining the Hysteria Over Crack, 54 Ala. L. Rev. 665, 677-678 (2003).

[17] Id. at 679.

[18] Id. at 680.

[19] Id. at 681.

[20] Craig Reinarman & Harry G. Levine, Crack in Context: Politics and Media in the Making of a Drug Scare, 16 Contemp. Drug Probs. 535, 540 (1989).

[21] Id. at 539.

[22] Lowney, supra note 2, at 146.

[23] Andrew Sacher, Inequalities of the Drug War: Legislative Discrimination on the Cocaine Battlefield, 19 Cardozo L. Rev. 1149, 1149 (1997).

[24] Id.

[25] Id. at 1155.

[26] Sklansky, supra note 9, at 1291.

[27] Alyssa L. Beaver, Getting a Fix on Cocaine Sentencing Policy: Reforming the Sentencing Scheme of the Anti-Drug Abuse Act of 1986, 78 Fordham L. Rev. 2531, 2539 (2010).

[28] David F. Musto, The American Disease 245 (expanded ed. 1987).

[29] Tyler B. Parks, The Unfairness of Fair Sentencing Act, 42 U. Mem. L. Rev. 1105, 1114 (2012).

[30] Hyser, Sarah, Two Steps Forward, One Step Back: How Federal Courts Took the “Fair” out of the Fair Sentencing Act of 2010, 117 Penn. St. L. Rev. 503, 508-509 (2012).

[31] Kimbrough, 552 U.S., at 95-96.

[32] Parks, supra note 29, at 1114.

[33] Kimbrough, 522 U.S., at 94.

[34] Kimbrough, 552 U.S., at 98 (quoting 2002 COCAINE AND FEDERAL SENTENCING POLICY).

[35] Parks, supra note 29, at 1106.

[36] Hyser, supra note 30, at 505.

[37] Parks, supra note 29, at 1113.

[38] Id.

[39] Angeli, supra note 1, at 1214.

[40] Id. at 156-17.

[41] Pers. Adm’r of Mass. v. Feeny, 442 U.S. 256, 279 (1979).

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