Crack cocaine, congressional inaction, and equal protection.

• Author: Larkin, Paul J., Jr.
• Position: I. The History Of Federal Drug Policy through II. Crack Cocaine, Race, and Equal Protection Law B. Legislative Inaction and Equal Protection 2. The Due Process Clause, p. 241-265

1. THE HISTORY OF FEDERAL DRUG POLICY II. CRACK COCAINE, RACE, AND EQUAL PROTECTION LAW A. Legislation and Equal Protection Law B. Legislative Inaction and Equal Protection Law 1. The Article I Lawmaking Process 2. The Due Process Clause 3. Equal Protection Principles III. CRACK COCAINE, RACE, AND FEDERAL DRUG POLICY IV. CONCLUSION Criminal justice policy, drug policy, and racial policy are three of the most contentious subjects in contemporary American society. (1) For the past thirty years, they have intersected because of the Anti-Drug Abuse Act of 1986. (2) Enacted in the midst of a panic over the emergence of a new form of cocaine colloquially known as "crack," (3) the act imposed severe mandatory minimum sentences on drug dealers. (4) Of particular importance was the penalty for selling crack cocaine, as the amount that triggered the mandatory minimum sentence was 100 times less than the predicate amount for the powdered version of the same drug. (5) The result is that the statute mandated equally serious punishment for both small-scale crack dealers and large-scale powdered cocaine traffickers. (6)

   Defendants convicted of distributing crack cocaine have challenged the Anti-Drug Abuse Act of 1986 on the ground that its sentencing provisions violate equal protection principles applied to the federal government by virtue of the Fifth Amendment Due Process Clause. (7) The federal courts have almost uniformly rejected that argument, (8) even though most of the academy has found it persuasive. (9) The debate has grown quiet over the last decade, principally because of the uniformity of the circuit court rulings and Congress's decision in 2010 to reduce the crack-to-powder ratio from 100:1 to 18:1. (10)

   Recently, however, a panel of the U.S. Court of Appeals for the Sixth Circuit revived the debate. In United States v. Blewett, (11) the court, by a divided vote, (12) set aside ten-year mandatory minimum sentences imposed on two defendants convicted in 2005 of possessing crack cocaine and sentenced under the mandatory minimum provisions of the Anti-Drug Abuse Act of 1986. According to the majority, equal protection principles dictated that the Fair Sentencing Act of 2010 be read to apply to every defendant sentenced under the 1986 Act. (13) The court believed that refusing to apply the 2010 statute retroactively would render the courts a party to the continuation of the unlawful discriminatory effects of the 1986 law. (14)

   The Sixth Circuit's ruling in Blewett is the first circuit court decision upholding an equal protection challenge to the federal drug sentencing laws. (15) The decision is important not only for its novelty, but also because it revives a controversy that all three branches of the federal government hoped had disappeared. The Blewett decision forces each branch of the federal government to revisit the legality and wisdom of the nation's drug sentencing laws as well as the contentious debate over what is the greater scourge of the nation's urban black communities: crack cocaine or the federal law punishing its possession and sale. (16)

1. THE HISTORY OF FEDERAL DRUG POLICY

   Cocaine is not the nation's drug of choice; either alcohol or tobacco holds that distinction. (17) By and large, the nation has reacted differently to the use of alcohol and tobacco than to other mood-altering substances. Western society has used alcohol widely for millennia, (18) and our nation's response to that practice has varied widely over time. (19) Today, the law largely leaves to the States the authority to decide whether and how to regulate the use and distribution of alcohol. (20) Tobacco use is likewise deeply rooted in American culture. Natives in the New World introduced European explorers to tobacco, and it soon became a cash crop in colonies like Virginia. (21) Current regulation of tobacco is generally left to the States, (22) but the federal government plays a role by requiring warning labels on cigarette packs and cartons and by forbidding the use of television and radio media to advertise tobacco. (23)

   Society treats other drugs differently. For a century, Congress has principally regulated opiates and other controlled substances by taxing their sale, by requiring a physician to prescribe them, and by outlawing any distribution of some particular drugs deemed medically unnecessary and especially dangerous. (24) Individual attitudes toward drug use, however, vary considerably. Although some would punish drug use as being intrinsically immoral, inherently dangerous, and socially corrosive, others deem the use of drugs such as marijuana as a relatively harmless diversion. (25)

   The landscape changed in the 1980s. The decade witnessed an unprecedented increase in cocaine use, as well as the emergence of a new form of cocaine, colloquially known as "crack." (26) The media played up stories on the proliferation of cocaine use, which finally reached a fever pitch in 1986 with the death of two professional athletes from its use--Don Rodgers of the Cleveland Browns and Len Bias, the first-round draft choice of the Boston Celtics. (27) Concerned that the nation was succumbing to a dangerous new drug and fearful that its lower price might attract new, younger, first-time drug users, Congress decided it could not wait for the recently chartered United States Sentencing Commission to devise appropriate penalties for cocaine. (28) Instead, Congress preempted the Commission by enacting the Anti-Drug Abuse Act of 1986. (29) Through this statute, Congress imposed lengthy, mandatory penalties for any violation of federal drug laws. (30) Of particular importance is the way that Congress sought to deter crack cocaine trafficking: The amount that triggers the minimum sentence for crack offenses is 100 times less than the amount required for the powdered form. (31)

   The Anti-Drug Abuse Act of 1986 has proved quite controversial due to the disparate results that its application has had on black and white drug traffickers. (32) Critics of the Act have quarreled with it for three reasons. First, law enforcement officials have scrupulously enforced the crack laws against black dealers working in the open-air markets often found in predominantly urban black communities, but law enforcement has not pursued similarly intensive investigations of more discreet powdered cocaine distribution and use in the predominantly white suburbs. (33) Second, the 100:1 ratio produces a prison population with an exponentially larger number of black than white cocaine trafficking convicts, because the sentences imposed on mostly black defendants convicted for selling crack are far longer than the sentences imposed on mostly white defendants for selling powdered cocaine. (34) Third, although these aggressive law enforcement efforts take advantage of poor, urban blacks marginalized by society, denied the economic opportunities available to suburban whites, and shunted off...