Crack, Congress, and the Normalization of Federal Sentencing: Why 12,040 Federal Inmates Believe That Their Sentences Should Be Reduced, and Why They and Others Like Them May Be Right - Michael Mcneill

• Publication year: 2012

Comment

Crack, Congress, and the Normalization of Federal Sentencing: Why 12,040 Federal Inmates Believe That Their Sentences Should Be Reduced, and Why They and

Others Like Them May Be Right

I. Introduction

The 1980s was a transitionary period in American history, when the general acceptance of casual drug use, which is still associated with the 1960s and 1970s, began to turn to widespread disapproval.¹ The practice and dangers of "freebasing"-smoking cocaine that had been purified with ether and inhaled over an open flame-came into the public spotlight in 1980 when a prominent comedian immolated himself in an accident blamed on the dangerous practice.² Beginning in 1984, a cheaper, more accessible form of freebase cocaine, called "crack," began

1. Robert Reinhold, Leveling Off of Drug Use Found Among Students, N.Y. Times, Feb. 19, 1981, at A1.

2. Richard Pryor's Tragic Accident Spotlights a Dangerous Drug Craze: Freebasing, People, June 30, 1980, at 69, available at http://www.people.com/people/archive/article /0,,20076864,00.html [hereinafter Freebasing].

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growing in popularity in New York, Miami, and Los Angeles.³ In November 1985, newspapers began running articles that raised public alarm over this new, cheap, and powerful form of cocaine.⁴ By mid-

1986, the term "crack epidemic" had come into widespread use as a way to describe this new drug's booming popularity.⁵

In response to the rising numbers of crack users across the nation, Congress took swift and decisive action by passing the Anti-Drug Abuse Act of 1986.⁶ This law rewrote federal drug regulations that had been in place since 1970 and added, for the first time, sentences for possession ofcontrolled substances that varied based on both the substance and the quantity possessed.⁷ The passage of the Act had been preceded by almost a year ofregular congressional hearings on the dangerousness of crack cocaine, with the conversations escalating in both alarm and urgency.⁸ As a result of these hearings, the quantity of crack that a defendant was required to have in order to trigger a mandatory minimum sentence of 5 or 10 years' imprisonment was set at 1% of the quantity of cocaine required to trigger the same sentence.⁹

While fiercely fighting the "crack epidemic," Congress was also creating a new federal agency, the United States Sentencing Commission, to promote uniformity and predictability in federal criminal sentencing.¹⁰ The Commission's first set of regulations took effect in

1987, and the sentencing guidelines therein were made compulsory on the judges applying them.¹¹ This included the heightened statutory minimum sentences required by Congress's 1986 Anti-Drug legisla-tion.¹² It was not long, however, before patterns began emerging. By the mid-1990s, it became apparent that African-Americans were

3. See, e.g., Ray Huard, Cocaine a Cheap High, Hotline Finding, Miami Herald, Nov. 21, 1985, at 1.

4. See id.

5. See Kevin Cullen, New "Crack"Drug a Major Challenge, Officials Say, Bos. Globe,

May 1, 1986, at 29.

6. Pub. L. No. 99-570, 100 Stat. 3207 (codified as amended at 21 U.S.C. §§ 801-971).

7. See Controlled Substances Import and Export Penalities Enhancement Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207-15 (this Act embodies "Subtitle G" of the Anti-Drug Abuse Act of 1986).

8. See, e.g., Mandatory Minimum Sentencing Laws-The Issues: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 110th Cong. 170-72 (2007) (statement of Eric E. Sterling, Former Assistant Counsel, House Subcommittees on Crime and Criminal Justice, 1979-1989) (describing how the drafters of the Anti-Drug Abuse Act of 1986 arrived at a 100:1 sentencing ratio).

9. Id.

10. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, 2017.

11. 18 U.S.C. § 3553(b)(1) (2006).

12. See U.S. Sentencing Guidelines Manual § 2D1.1 (1987) (amended 2011).

2012] FEDERAL SENTENCING 1361

subjected to a disproportionate number of federal crack convictions, along with their drastically heightened penalties.¹³ Meanwhile, those being convicted for possession of drugs without heightened penalties, such as powdered cocaine, were disproportionately white.¹⁴

These two new legal systems continued to operate side-by-side until 2005, with federal judges in the position of being compelled to sentence members of the overrepresented African-American community more harshly for drug crimes.¹⁵ Then, in 2005, the United States Supreme Court held in United States v. Booker¹¹⁶ that the statutes that made the United States Sentencing Guidelines compulsory on federal judges were unconstitutional, and reinterpreted the guidelines as being merely advisory.¹⁷

Since then, the call to end the disparity between crack and cocaine sentencing has drawn a great deal of support,¹⁸ and eventually Congress passed the Fair Sentencing Act of 2010.¹⁹ This Act has reduced the 100:1 ratio used in crack and cocaine sentencing to one that treats the possession of crack somewhat more leniently.²⁰ Furthermore, because the United States Sentencing Commission has modified the United States Sentencing Guidelines in accordance with the Fair Sentencing Act,²¹ and has chosen to make those modifications retroactively applicable to people serving sentences for crack convictions that predate the Act,²² this area of law is likely to be the subject of a large amount of litigation in the coming years-particularly as prisoners continue to struggle to receive the sentencing reductions to which they

13. See Douglas C. McDonald & Kenneth E. Carlson, Why Did Racial/Ethnic Sentencing Differences in Federal District Courts Grow Larger Under the Guidelines?, 6 Fed. Sent'g Rep. 223, 224-26 (1994).

14. Id.

15. See United States v. Booker, 543 U.S. 220, 233-34 (2005).

16. 543 U.S. 220 (2005).

17. See id. at 244-45.

18. See U.S. Sentencing Guidelines Manual, app. C, vol. III, amend. 706 (2011).

19. Pub. L. No. 111-220 § 2-3, 124 Stat. 2372, 2372 (codified in scatted sections of 21 U.S.C. ch. 13).

20. Compare id. § 2, 124 Stat. at 2372, with Anti-Drug Abuse Act of 1986 § 1002, 100

Stat. at 3207-2 to -4.

21. U.S. Sentencing Comm'n, Amendments to Sentencing Guidelines (2011), availableat http://www.ussc.gov/LegaVAmendments/Official_Text/20110428_Amendments .pdf.

22. News Release, U.S. Sentencing Commission, U.S. Sentencing Commission Votes Unanimously To Apply Fair Sentencing Act of 2010 Amendment to the Federal Sentencing Guidelines Retroactively (June 30, 2011), available at http://www.ussc.gov/Legislative_ and_Public_Affairs/Newsroom/Press_Releases/20110630_Press_Release.pdf.

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are entitled.²³ This Comment explores the issues and outcomes ofthose cases, including current circuit splits in the area, as well as the possibility for future litigation in the United States Supreme Court and other possible directions for this rapidly-evolving area offederal criminal

law.

II. History of the Issue

A. Cocaine and Cocaine Base

Cocaine is a powerful stimulant drug that is derived from the leaves of coca plants.²⁴ It came into popular use as an anesthetic near the end of the nineteenth century, but today it is widely understood to be a dangerous and highly addictive drug.²⁵ Cocaine is classified as a Schedule II drug under the Controlled Substances Act (CSA),²⁶ which means that it "has a high potential for abuse[,] . . . [it] has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions[,] . . . [and a]buse of the drug . . . may lead to severe psychological or physical dependence."²⁷

Cocaine is widely available as a fine, white powder.²⁸ This form is also known as cocaine hydrochloride (cocaine HCl).²⁹ Cocaine HCl is a salt form of cocaine that readily dissolves in water.³⁰ However, this salt form has a higher melting temperature than cocaine base, the chemically pure form of cocaine, which causes cocaine HCl to burn and lose its psychoactive properties at lower temperatures than those required to vaporize it for smoking or inhalation.³¹ In the 1970s, cocaine users started applying chemical processes to cocaine HCl to remove the hydrochloride component ofthe molecule and crystallize the

23. See generally Dillon v. United States, 130 S. Ct. 2683 (2010); United States v. Ware,

No. 08-625-01, 2012 WL 38937 (E.D. Pa. Jan. 9, 2012).

24. Powdered Cocaine Fast Facts: Questions and Answers, Nat'l Drug Intelligence Center (U.S. Dep't of Justice), Apr. 2003, available at http://www.justice.gov/ndic/pubs3/ 395173951p.pdf.

25. Id.

26. Pub. L. No. 91-513, tit. II, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C.

§§ 801-904 (2006 & Supp. IV 2010)).

27. 21 U.S.C. § 812(b)(2) (2006).

28. Powdered Cocaine Fast Facts, supra note 24.

29. Id.

30. Special Report, The CIA-Contra-Crack Cocaine Controversy: A Review of the Justice Department's Investigations and Prosecutions, Off. of the Inspector Gen. (U.S. Dep't of Justice), Dec. 1997, at app. B, available at http://www.justice.gov/oig/special/9712/index .htm.

31. Id. at app. B, n.1.

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purified cocaine base.³² This purified form, called "freebase," sublimates, or vaporizes, at a much lower temperature than cocaine HCl, and can be directly inhaled without losing its stimulant characteristics.³³ Using freebase, "freebasing,"³⁴ has a more immediate, more intense effect on the user than powdered cocaine, though the effects fade more quickly than those of powdered cocaine.³⁵

Before the popularization of crack cocaine, creating freebase involved using highly flammable ether to separate the drug base from chemical solvents that trapped the hydrochloride component of cocaine HCl.³⁶ This dangerous practice came to national attention in 1980 when comedian Richard Pryor was badly burned over a large portion of his body in an accident that the Los Angeles Police Department attributed to freebasing.³⁷ Despite the danger and complexity of...