A 'second look' at crack cocaine sentencing policies: one more try for federal equal protection.

• Author: Angeli, David H.

1. Introduction

   On any given day, nearly one third of all black men aged twenty to twenty-nine are under the supervision of the criminal justice system -- in prison or jail, on probation, or on parole.(2) This represents an increase of 40% in the criminal justice supervision rate of black males since 1990.(3) As a result, an enormous segment of the young black male population is removed from both the job market and the black community at large by the disability and stigma of conviction.(4) The effects are devastating, both on an individual level and on the African American community as a whole.(5)

   The increase in the rates of incarceration of young black males is due primarily to the focus of the "war on drugs" on black drug users.(6) For drug offenses, the African American proportion of arrests increased from 24% in 1980 to 39% in 1993, even though African Americans comprise only 13% of monthly drug users.(7) From 1986 to 1990, the number of minority jail inmates increased more than twice as fast as the number of white inmates, and the increase in the number of arrests of minorities for drug offenses was almost ten times the increase in arrests of white drug offenders.(8) The precipitous increase in drug sentences for minorities is best understood by examining federal drug sentencing provisions that were adopted during the same time period.(9)

   In 1984, Congress enacted the Sentencing Reform Act(10) which provided, in part, for the creation of the United States Sentencing Commission to develop a system of guidelines that would structure and direct the sentencing discretion of federal judges. As the newly created Sentencing Commission began to develop its guidelines, Congress, engulfed in election-year pressures and a deluge of distorted media images,(11) enacted several "mandatory minimum" statutes aimed primarily at drug and weapons offenders. Among these statutes were two enacted in 1986(12) and 1988(13) for sentencing federal cocaine offenses. These statutes differentiate between powder and crack cocaine, singling out crack for much harsher punishment.(14)

   The Sentencing Commission subsequently recommended, and Congress adopted, this "100-to-1" quantity ratio in its Sentencing Guidelines. The ratio is therefore applicable to all federal offenses involving crack or powder cocaine.(15) At every quantity level federal defendants convicted of a crack cocaine offense receive the same sentences as powder cocaine defendants convicted of an offense involving 100 times as much cocaine.(16)

   The impact of the "100-to-1" disparity is felt almost exclusively by black defendants. In 1993, for example, blacks accounted for 88.3% of federal crack distribution convictions; 4.1% were white. in contrast, whites accounted for 32% of those sentenced for powder cocaine distribution; 27.4% were black.(17) Since the average sentence for trafficking in crack is more than five years longer than the average powder sentence,(18) federal cocaine laws clearly have a large disproportionate impact on black defendants.(19)

   Motivated in part by this racial disparity in cocaine sentencing,(20) the Sentencing Commission recently promulgated an amendment to the Sentencing Guidelines that would equalize "sentences for offenses involving similar amounts of crack cocaine and powder cocaine."(21) The Commission also recommended the elimination of the differential treatment in the "mandatory minimum" statutes.(22) Absent Congressional action, the proposed amendments would have become law on November 1, 1995.(23) Prior to November 1, however, Congress passed and the President signed a bill, disapproving the proposed amendments.(24) Congress directed the Commission to conduct further study and resubmit recommendations for changes to the Guidelines governing cocaine-related offenses. Congress further directed that the recommendations must reflect that sentences for trafficking in a given quantity of crack should generally exceed the sentence for trafficking in a like quantity of powder cocaine.(25)

   The United States Sentencing Commission is not the only group working to remedy the crack/powder disparity. Black defendants have challenged the constitutionality of federal crack policies in nearly every federal circuit, claiming a violation of their federal right to equal protection. Applying the deferential "rational basis" standard established in Washington v. Davis(26) and Village of Arlington Heights v. Metropolitan Housing Development Corp.,(27) the circuits have unanimously denied relief to these defendants.(28) Finding no discriminatory intent in the original enactment of the sentencing provisions,(29) every circuit has applied a deferential rational basis test, finding that the provisions were rationally related to a legitimate government purpose.(30)

   The unanimity of the circuits has led to a general feeling of hopelessness in the possibility of a successful federal equal protection challenge to the crack laws. Even those who harshly criticize the policies generally concede the futility of pursuing a federal equal protection challenge in this area.(31) This Note argues that this concession is premature.

   In a concurrence to an opinion rejecting an equal protection challenge to the crack laws,(32) Judge Guido Calabrese provided renewed hope for a federal equal protection challenge to crack sentencing policies. Judge Calabrese agreed that "at the time the sentencing ratio was adopted, the link between foreseeable discriminatory impact and motive was insufficient to establish the kind of discriminatory intent" necessary to satisfy the Davis/Arlington Heights Standard.(33) Likewise, he concurred that "based on the evidence available at the time, Congress and the Sentencing Commission did not act irrationally in making the distribution of a given quantity of crack an enormously more serious crime than the distribution of the same quantity of cocaine."(34)

   Judge Calabrese recognized, however, that "what is known today about the effects of crack and cocaine, and about the impact that the crack/cocaine sentencing rules have on minority groups, is significantly different from what was known when the 100-to-1 ratio was adopted. As a result, constitutional arguments that were unavailing in the past may not be foreclosed in the future."(35) Judge Calabrese suggested that if Congress, when faced with the faced with the Sentencing Commission's evidence of dramatically disparate impact(36) and data contradicting Congress' previously-held assumptions,(37) nevertheless fails to adopt the Commission's recommendations, "subsequent equal protection challenges based on claims of discriminatory purpose might well lie."(38)

   Moreover, Judge Calabrese concluded that "[e]ven if the new data were not considered sufficient to make out a case of purposeful discrimination ... it might nonetheless serve to support a claim of irrationality."(39) Regardless of the original intent of Congress and the Sentencing Commission, Judge Calabrese concluded that a reaffirmation of a given policy nM be evaluated in light of what is known at the time of the reaffirmation.(40) In essence, a court should be willing to take a "second look" at the legislative action based on the circumstances surrounding the reaffirmation.

   Judge Calabrese's suggestion to take a "second look" is consistent with the Davis/Arlington Heights standard, and suggests a new category of cases which may require a heightened level of scrutiny. Since Davis, the Court has generally avoided review of the substance of government decisionmaking, invalidating only those laws that result from a failure in the decisionmaking process.(41) A facially neutral classification will generally survive an equal protection challenge so long as it is rationally related to a purpose "the Government is constitutionally empowered to pursue."(42) In fact, the "legitimate goal" furthered by the classification need not even have been one Congress actually considered; courts are generally willing to hypothesize such a goal.(43) Essentially, the Court is unwilling to consider evidence relating to the results of certain legislation as evidence that Congress had a wrongful purpose or motive at the time of enactment; Congress is presumed to have acted on valid assumptions, and made classifications based on good-faith predictions that legitimate goals would be furthered.

   If, however, Congress had the benefit of hindsight when it enacted a law, the analysis may very well be different. If Congress could not only foresee, but also had historical evidence of, a law's disparate impact upon a traditionally burdened class, and knew that the assumptions upon which it acted were inaccurate, its actions may not be deserving of such deference. If Congress knew that a classification did not furthers its stated goals, courts would likely be less willing to presume otherwise. Such was the case in 1995 when Congress reaffirmed its crack cocaine sentencing policies At that time, Congress was presented with a Special Report containing the results of extensive research conducted by the Sentencing Commission pursuant to Congressional directive. The data showed that in 1986, Congress relied on inaccurate assumptions in enacting the crack sentencing laws.(44) Furthermore, the Report demonstrated that the sentencing scheme failed to further the stated intent of federal drug policy: to target mid- to the narcotics distribution chain.(45) Regardless of the good-faith of Congress when enacting the scheme in 1986, in 1995 Congress reaffirmed the crack sentencing scheme knowing that its underlying assumptions were false and that the scheme did not further die overall purposes of federal drug policy.

   This Note more fully develops the implications of Judge Calabrese's concurrence in Then. Part II examines the relevant factors set forth in Arlington Heights and subsequent jurisprudence and concludes that current data does support an inference of discriminatory...