Issues
Whether Congress’s intention, in enacting the Anti-Drug Abuse Act of 1986, to target users of crack cocaine should limit the scope of the term “cocaine base” or whether the term should be given its ordinary chemical definition.
Reacting to the growing concern over “crack” cocaine, Congress passed the Anti-Drug Abuse Act of 1986 (ADAA), part of which imposes a 10-year mandatory minimum prison sentence for offenses involving either 5 kilograms or more of powder cocaine or coca leaves, or “50 grams or more of a substance…which contains a cocaine base.” Petitioner Frantz DePierre sold 55.1 grams of drugs to a police informant and received a sentence of 10 years in prison for distributing 50 grams or more of “cocaine base.” The court of appeals affirmed the sentence, holding that the term “cocaine base” covers all base forms of cocaine, including but not limited to crack. DePierre argues that in light of the purpose and language of the statute, “cocaine base” applies only to crack cocaine, while the United States claims that interpreting the ADAA to include all chemically-classified “base” forms of cocaine is consistent with the ADAA as a whole. The Supreme Court’s decision in this case will resolve a circuit split by establishing the scope of “cocaine base” and will ultimately determine the mandatory minimum sentence lengths for offenses involving non-crack cocaine.
Questions as Framed for the Court by the Parties
Section 841(b)(1)(A) of Title 21 requires the imposition of a ten-year mandatory minimum sentence upon persons who engage in a drug-related offense involving either (a) five kilograms or more of "coca leaves" or "cocaine," or (b) fifty grams (.05 kilograms) or more of those substances, or of a mixture of those substances, "which contain[] cocaine base."
The question presented is whether the term "cocaine base" encompasses every form of cocaine that is classified chemically as a base - which would mean that the ten-year mandatory minimum applies to an offense involving 50 grams or more of raw coca leaves or of the paste derived from coca leaves, but that 5000 grams of cocaine powder would be required to trigger the same ten-year minimum - or whether the term "cocaine base" is limited to "crack" cocaine.
Facts
Sentencing under the Anti-Drug Abuse Act of 1986
The Controlled Substances Act (CSA), enacted in 1970, regulates the production, distribution, possession and use of certain illegal drugs, including cocaine. In 1984, Congress amended the CSA to prescribe sentences for drug-related offenses based on the quantity and type of drug involved. In response to an increasingly widespread use of a smokeable and more addictive form of cocaine called “crack,” Congress passed the Anti-Drug Abuse Act of 1986 (ADAA), imposing mandatory minimum prison sentences for cocaine-related offenses. At the time of Petitioner Frantz DePierre’s conviction, the ADAA imposed a mandatory minimum sentence of 10 years for either offenses involving at least 5 kilograms of unaltered coca leaves or powder cocaine, or for offenses involving 50 grams or more of substances containing a “cocaine base.” The statute also imposes a 5-year sentence for crimes involving 500 grams or more of powder cocaine or coca leaves and 5 grams or more of “cocaine base.”
In 1993, the United States Sentencing Commission, an agency of the Federal Judiciary, amended their Sentencing Guidelines for federal courts, limiting “cocaine base” to mean only “crack.” In 2005, however, the Supreme Court of the United States held that the guidelines were not mandatory, and that trials courts may exercise discretion in applying them. The federal circuit courts of appeal are currently divided on whether to apply the guidelines’ limited definition of “cocaine base.”
Cocaine and “Cocaine Base”
The chemical properties of cocaine in its natural form (“cocaine”) make it a “base,” though it can be combined with hydrochloric acid to form cocaine hydrochloride (“powder cocaine”), which is a salt. Powder cocaine users can either sniff or intravenously inject the drug. If powder cocaine is dissolved in water with certain other substances, it converts back into the base form of cocaine, which a person can use to make “crack,” a smokeable cocaine base with a shorter, more intense effect on the user. Crack is the most common form of “cocaine base.” Cocaine and crack have similar effects on their users, but have different chemical compositions.
DePierre’s Arrest, Conviction, and Appeal
In 2005, Frantz DePierre offered to sell crack to a police informant. When DePierre met with the informant, he produced only powder cocaine, which the informant bought. After numerous other meetings with the informant, who repeatedly asked for crack, DePierre sold him 55.1 grams of a white substance later determined to contain “cocaine base,” although it was not conclusively established at trial whether this was crack cocaine. Federal prosecutors indicted and tried DePierre for distribution of 50 grams or more of “cocaine base” under 21 U.S.C. § 841(b)(1)(a)(iii). The trial judge instructed the jury to decide whether DePierre had sold the informant “cocaine base,” mentioning that although some evidence at trial indicated that the substance might be crack cocaine, the only issue for jury determination was whether the substance involved was “cocaine base.” The jury convicted DePierre and sentenced him to 10 years in prison.
On appeal, DePierre argued that the term “cocaine base” meant only “crack,” and thus that the judge’s instructions to the jury were improper. The United States Court of Appeals for the First Circuit affirmed, holding that although the ADAA was enacted to target crack offenses, First Circuit precedent interprets “cocaine base” to include all base forms of cocaine base, not just crack. DePierre filed a petition for writ of certiorari, which theSupreme Court granted on October 12, 2010 to resolve a circuit split.
Analysis
The case considers whether the term “cocaine base” in 21 U.S.C. 841(b)(1)(A)(iii) refers specifically to “crack” or to all base forms of cocaine. The government argues that Congress intended for a broad definition of the term and that a clear reading of the statute reflects that goal. However, Frantz DePierre argues that it was Congress’s intent to use a street term which covers only smokeable forms of cocaine, and that a clear reading of the statute requires that “cocaine base” be limited to “crack” in order to prevent most of the statute from becoming irrelevant.
Clear Reading of the Statute
The Anti-Drug Abuse Act (ADAA) states that a substance with a “cocaine base,” which the United States contends refers to any substance that is chemically similar to the basic form of cocaine, is subject to the penalties listed in 21 U.S.C. 841(b)(1)(A)(iii). The government points out that the statute makes reference to “cocaine base,” with no reference to “crack.” The government additionally notes that although crack is a substance with a “cocaine base,” it is not the only kind of “cocaine base” substance. The government argues that the statute clearly reflects this interpretation, separating offenses involving “cocaine base” and offenses involving similar cocaine-related substance without a “cocaine base.”
In contrast, DePierre contends that the plain language of the statute emphasizes that the increased punishments are applicable only to a subset of cocaine substances. He argues that because the term “cocaine base” does not appear in the ADAA’s description of all the cocaine-related substances affected by the statute, it must refer to a limited subset of cocaine-related substances, the most important of which is crack. This contention is supported by the language of clause (iii) of the statute, which imposes a heightened penalty only for those substances listed in clause (ii) that also contain a “cocaine base.”
The government argues that “cocaine base” is used in the ADAA the same way it is used in organic chemistry, and that the overall statutory framework in categorizing controlled substances supports the presumption that “cocaine base” is not limited to “crack.” Specifically, the United States argues that the ADAA as a whole refers to drugs in terms of their chemical and botanical names rather than referring to the drugs’ street names, and that this is consistent with other federal drug statutes, implying that “cocaine base” refers to all cocaine substances with chemically base forms.
DePierre points out that there are fundamental chemical differences between crack cocaine and powder cocaine – powder cocaine is chemically known as cocaine hydrochloride, which is a salt, while crack cocaine is a chemically basic compound and has an identical chemical composition to coca paste. Further, he asserts, all forms of cocaine besides cocaine hydrochloride are chemically base compounds, and thus treating “cocaine base” as a chemical term is redundant, and would render most of the other ADAA provisions useless, since the lower threshold of 50 grams for “cocaine base” would apply in all cases where the offense involved any form of cocaine except powder cocaine.
On the other hand, the United States contends that other types of “cocaine base” are chemically indistinguishable from “crack,” and using street names to interpret the statute is unreliable and more problematic than the First Circuit’s approach. The United States notes that the federal courts have not agreed on the definition of “crack” and the this lack of uniformity creates the possibility that a simple change in production method of a cocaine-related substance would bypass clause (iii)’s statutory penalties.
Congressional Intent
The United States argues that because the statutory language is clear, an analysis of congressional intent is not necessary; nevertheless, the government still notes that a broad definition of cocaine base is consistent with congressional intent. The government concedes that Congress amended the ADAA after learning of the popularity of crack cocaine, which is highly addictive and can be smoked for a more intense high. However, the government argues that when Congress amended the penalties for cocaine base it was also concerned about other forms of smokeable cocaine, including “freebase” cocaine, which were just as problematic. The United States argues that Congress’s intent to increase the penalties for all types of “cocaine bases” should not be limited to a single form of the drug.
DePierre states that Congress did not intend for “cocaine base” to refer to all compounds chemically similar to “crack,” but rather intended it to only refer to crack cocaine. Specifically, DePierre contends that Congress uses “industry language” to draft legislation and that the term “cocaine base” was originally drafted as “cocaine freebase,” demonstrating Congress’s desire to use language specifically targeted at smokeable cocaine. According to DePierre, Congress changed the language because the term “freebase” was too casual for a statute. DePierre adds that Supreme Court decisions concerning the statute at issue have parenthetically referred to cocaine base as “crack”: for example, in United States v. Armstrong, 517 U.S. 456, 458 (1996), Chief Justice Rehnquist wrote that the petitioners were charged with conspiring to “distribute more than 50 grams of cocaine base (crack).”
DePierre also notes that the United States Sentencing Commission amended the Sentencing Guidelines in 1993, clarifying that the term “cocaine base” refers specifically to crack. While the Sentencing Commission’s decisions are not binding on the Court, DePierre argues that its interpretations are persuasive when, as was the case here, the Commission closely analyzed the structure and purpose of the statute before making its finding. Finally, DePierre argues that Congress amended the statute to enhance penalties for possession of “crack” because Congress considered crack cocaine much more dangerous than other types of cocaine, implying that “cocaine base” should have a limited definition reflecting this intent.
Discussion
The Court’s decision in this case will determine whether the definition of the term “cocaine base” in 21 U.S.C. § 841(b)(1)(a)(iii) should include all forms of cocaine base or should be limited only to crack. A decision adopting the limited definition proposed by Frantz DePierre may create practical difficulties and allow criminals to avoid longer sentences. On the other hand, a decision adopting the interpretation proposed by the United States may produce unfair and disproportionate sentencing for cocaine-related offenses.
Absurd Results v. Improper Incentives
DePierre argues that if “cocaine base” is held to include non-crack cocaine bases, defendants convicted under the statute would be subject to unfairly disproportionate sentences. He notes that, under the government’s interpretation of the statute, a defendant convicted of distributing 499 grams of powder cocaine, which can produce hundreds of grams of crack, would not be subject to a 5-year minimum sentence, while distributing 5 grams of coca leaves, which can only produce .05 grams of crack, would trigger the 5-year sentence. Given Congress’s goal of targeting crack-related offenses, DePierre argues, this would be an illogical and unfair result. In contrast, the United States maintains that the limited definition proposed by DePierre would result in increased criminal ingenuity. It argues that if “cocaine base” only applied to crack, drug traffickers would have the incentive to develop new production methods for non-crack cocaine bases, forcing courts to sentence them under provisions of the statute that deal with other forms of cocaine. Because these provisions only apply the mandatory minimum sentence if the quantity of cocaine is much larger, the United States contends that many of these defendants would be able to avoid harsher penalties and receive lighter sentences.
Undermining Congressional Authority
DePierre further claims that because the Sentencing Commission’s limited definition of “cocaine base” reflects the ADAA’s intention of targeting crack users, failing to apply the Sentencing Guidelines’ definition would undermine congressional authority. The United States Court of Appeals for the Third Circuit, on the other hand, has stated that allowing the Sentencing Guidelines to dictate the meaning of a federal statute would be an improper extension of judicial power, as it would allow a judicial agency to perform the legislative role of making substantive changes in the law.
Equal Protection and Racial Disparities in Sentencing
In the United States Court of Appeals for the Tenth Circuit, at least one defendant has challenged the constitutionality of the sentencing under the ADAA. In Easter, the defendant claimed that because “blacks are more likely to possess cocaine base than whites[,] who are more likely to possess cocaine hydrochloride,” imposing lengthier sentences for cocaine base offenses than for identical amounts of powder cocaine violates the constitutional guarantee of equal protection under the law. The United States Sentencing Commission has similarly noted that African Americans tend to be the primary recipients of the ADAA’s harsher sentences. The EasterCourt, however, rejected this argument because the statute does not indicate that Congress created this disparity with a discriminatory purpose. Arguing along the same lines, the United States contends that forms of cocaine base other than crack, including “freebase” cocaine, are covered by the phrase “cocaine base,” and that any effects of the statute on crack users would also apply to users of these other drugs.
In this case, the Supreme Court will determine the definition of “cocaine base” under 21 U.S.C. § 841(b)(1)(a)(iii). Limiting the definition to “crack” could create difficulties in application, overextend judicial power, and allow defendants to avoid harsh sentences, but a broad definition of “cocaine base” could impose unfairly harsh and disproportionate sentences on defendants.
Conclusion
The Supreme Court will determine whether the scope of the term “cocaine base” in the Anti-Drug Abuse Act is limited to crack cocaine or includes all chemically base forms of cocaine. DePierre argues that the language and purpose of the Act indicate that “cocaine base” means “crack,” claiming that a broader interpretation would produce redundancies and result in disproportionate sentencing. The United States maintains that an interpretation of the term that includes all cocaine bases is consistent with the ADAA’s history and purposes, and that a limited definition would be difficult and dangerous to apply. The Court’s decision on the scope the term “cocaine base” will determine the mandatory minimum sentence lengths for defendants convicted of offenses involving cocaine bases other than crack cocaine.
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Acknowledgments
Additional Resources
· National Drug Intelligence Center: Crack Cocaine Fast Facts
· National Institute on Drug Abuse: Cocaine
· Drug Watch International, David Risley: Mandatory Minimum Sentences – An Overview
· RAND Corporation: Are Mandatory Minimum Drug Sentences Cost-Effective?