Drug sentencing frenzy.

• Author: Elden, Jennifer
• Position: Edward Clary's crack sentence appeal - Cover Story

Two months after his eighteenth birthday, Edward Clary visited friends in California. While he was there, one of them persuaded him to take some drugs back home to St. Louis. Clary didn't even make it past the St. Louis airport. Identified as someone who looked like a drug courier, he was arrested upon arrival and charged with possessing crack. Clary had never attempted to deal drugs before, and he had no criminal record. He was so inexperienced that the crack he bought was only about 20 percent pure, and so adulterated it melted in the evidence room.

According to Clary's lawyer, assistant federal public defender Andrea Smith, Clary is "a nice kid who didn't know what he was doing." Clary grew up in a troubled home, raised by aunts and other family members who took the place of his absent parents. He dropped out of high school and had no skills, and he got caught doing something stupid. Now approaching his twenty-second birthday, Clary has spent forty months in jail.

"He's still a nice kid, even after all this time in jail," says Smith. "I think he's learned his lesson."

Clary was convicted and sentenced under federal guidelines that punish crack offenses 100 times more severely than those involving powder cocaine: a crime involving one gram of crack is penalized the same as a crime involving 100 grams of powder cocaine.

Clary, like defendants in other cases, has challenged the constitutionality of the 100-to-1 ratio. These defendants claim the law is arbitrary and irrational because it assigns such disproportionate penalties to two forms of the same substance. Clary and others also argue that the law discriminates against African-Americans, since the majority of those charged with crimes involving crack are black (92.6 percent of those convicted in 1992 for violations involving crack were black, 4.7 percent were white), whereas powder cocaine users are predominantly white.

Federal courts, however, have consistently rejected the argument that the 100-to-1 ratio violates the equal-protection clause of the Constitution. Several judges have upheld the ratio, finding that Congress had a rational basis for imposing more severe penalties for crack than for powder cocaine, and that there was no evidence of a discriminatory purpose in passing the guidelines. Congress, according to these judges, believed that crack was more dangerous to society because of its potency, its affordability, its highly addictive nature, and its increasing prevalence...