United States v. Clary

34 F.3d 709 (8th Cir.1994)

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Nature of the Case

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Facts

D was arrested for possession with intent to distribute 67.76 grams of cocaine base. Prior to sentencing, D, a black male, filed a motion challenging the constitutionality of the crack statute and contended that the sentence enhancement provisions violated his equal protection rights guaranteed by the Fifth Amendment. D asserts that the penalty differential of the '100 to 1' ratio of cocaine to cocaine base has a disproportionate impact on blacks because blacks are more likely to possess cocaine base than whites who are more likely to possess cocaine powder. Powder cocaine is 'cooked' with baking soda for about a minute to make crack. D claims that providing longer sentences for possession of cocaine base than for the identical amount of cocaine powder treats a similarly situated defendant in a dissimilar manner, which violates his right to equal protection under the law. The possession and distribution of 50 grams of crack cocaine carries the same mandatory minimum sentence of 10 years imprisonment as the possession and distribution of 5000 grams of powder cocaine. Congress says that crack cocaine is much more dangerous than powder cocaine. The trial court found that the root of unconscious racism can be found in the latent psyches of white Americans that were inundated for centuries with myths and fallacies of their superiority over the black race. So deeply embedded are these ideas, that their acceptance and socialization from generation to generation have become a mere routine. The illustration of unconscious racism is patently evident in the crack cocaine statutes. Had the same type of law been applied to powder cocaine, it would have sentenced droves of young whites to prison for extended terms. Before the enactment of such a law, it would have been much more carefully and deliberately considered. After all, in these days when 'toughness on crime' is a political virtue, the simplest and fairest solution would have been to make the severe punishment for powder cocaine the same as for crack cocaine. But when the heavy punishment is inflicted only upon those in the weak and unpopular minority community, it is an example of benign neglect arising from unconscious racism. Studies of the impact of race on white decision-making nearly always explain disparate effects by focusing on negative assessments of, or undesirable outcomes for, nonwhites, rather than positive results for whites. That is, they adopt a conceptual framework in which unconscious race discrimination is triggered by stereotyping. The focus on 'purposeful' discrimination is inadequate as a response to more subtle and deeply buried forms of racism. The inquiry to determine racial bias is still 'difficult, if not impossible.' Without consideration of the influences of unconscious racism, the standard of review set forth in Davis is a 'crippling burden of proof.' Arguably, most forms of overt racism have been eliminated. However, those who choose to discriminate on the basis of race find it easier to achieve the same results by basing their distinctions on class. Ergo, the identification of race bias has become more complex, more divisive, and morally more problematic. Black people constitute a disproportionate share of persons who exist in absolute poverty. Current equal protection analysis must therefore take into account the unconscious predispositions of people, including legislators, who may sincerely believe that they are not making decisions on the basis of race. A criminal defendant who alleges an equal protection violation must prove that the 'invidious quality' of governmental action claimed to be racially discriminatory 'must ultimately be traced to a racially discriminatory purpose.' The 'subjects of proper inquiry,' are: (1) adverse racial impact of the official action, (2) historical background of the decisions, (3) specific sequence of events leading up to the challenged decision, (4) departures from normal procedure sequence, (5) substantive departure from routine decisions, (6) contemporary statements made by the decision-makers, and (7) the inevitability or foreseeability of the consequence of the law. The Congressional Record, prior to enactment of the statute, is replete with news articles submitted by members for their colleagues' consideration which labeled crack dealers as black youths and gangs. The media reports associating blacks with the horrors of crack cocaine caused Congress to react irrationally and arbitrarily. The evolution of the 100 to 1 crack-to-powder ratio mandatory minimum sentence was a direct result of a 'frenzied' Congress that was moved to action based upon an unconscious racial animus. The development of the omnibus bill was extraordinary. The careful deliberative practices of Congress were set aside for the drug bill. The Senate conducted a single hearing between 9:40 a.m. to 1:15 p.m., including recesses. Attendance was intermittent. D's evidence that the impact of the crack statute 'bears more heavily' on blacks than whites is undisputed. 98.2 percent of defendants convicted of crack cocaine charges in the Eastern District of Missouri between the years 1988 and 1992 were black. Nationally, 92.6 percent of the defendants convicted in 1992 of federal crack cocaine violations were black and 4.7 percent of the defendants were white. In comparison, 45.2 percent of defendants sentenced for powder cocaine were white, as opposed to 20.7 percent of black defendants. All of the defendants sentenced for simple possession of crack cocaine were black. According to the U.S. Sentencing Commission, blacks receive sentences at or above the mandatory minimum more often than whites arrested on the same charge. The disparate application appears to be related to race, and the disparity is constant even when variables such as the nature of the offense and prior criminal record are considered. An estimated 90 percent increase in the prison population during the last several years is directly related to the mandatory minimum drug sentences and the sentencing guidelines. The focus on the prosecution of numerous low-level crack dealers appears to be part of a national policy. A law that burdens blacks disproportionately and whose influence has been traced to racial considerations, even if unconscious, warrants the most rigorous scrutiny. Such a law can survive only if the classification which is suspect is narrowly tailored to further a compelling governmental interest. P offered evidence that members of Congress considered crack to be more dangerous because of its potency, its highly addictive nature, its affordability, and its increasing prevalence. Ample evidence has been presented to this Court that contradicts many of Congress' claims. 'The dividing line between crack and powder cocaine is indistinct and arbitrary.' There was no reliable evidence at that time that crack cocaine was more addictive or dangerous than powder cocaine. Crack's purported greater potency was not supported by the evidence. There is no evidence that the use of crack makes the user physiologically or psychologically more prone to violence or other antisocial behavior than does the use of powder cocaine. According to the market approach, crack cocaine can be distributed in small packets at a low unit price. Crack is no cheaper than cocaine powder because cocaine is the essential product of crack. But all forms of cocaine are available today in greater quantity and at lower prices than a few years ago. The record does not support the fact that Congress had a reasonable basis to make the harsh distinction between penalties for powder and crack cocaine. It would be far more fair and just and in keeping with the 'get tough' rhetoric of today, to require that both black and white violators serve the same 10 years imprisonment, be it 'crack' or powder cocaine. Cocaine is, really, cocaine!! No crack could exist without cocaine powder. Eliminate cocaine and crack disappears!! This would be simple and fair and would eliminate racial injustice. Of paramount value would be the enhanced respect for the judiciary and the nation by bringing about equal justice for all -- not merely punishment for 'JUST US.' The court found that the disproportionate penalties for crack cocaine as specified in all of the pertinent sections of 21 U.S.C. § 841 violate the Equal Protection Clause of the U.S. Constitution generally and as applied in this case. The Court further holds that the prosecutorial selection of cases on the basis of race is constitutionally impermissible as applied to this defendant in this case. The court sentenced D to the same time as if he were tried for cocaine instead of crack. P appealed.