times as many deaths are reported from the intranasal use of cocaine hydrochloride, as opposed to the ingestion of cocaine base or the intravenous injection of cocaine hydrochloride. Dr. Schwartz surmised that the difference is due to the sustained level that an individual gets from ingestion from snorting as opposed to the rapid rise and fall that comes through the intravenous or pulmonary, i.e. smoking, method of injection. Dr. Schwartz also stated that he considers cocaine hydrochloride to be a more dangerous drug than cocaine base because of the 40% incidence of AIDS that has been found in individuals who intravenously inject cocaine.
During his testimony, Dr. Schwartz made the following conclusions. First, Dr. Schwartz concluded that there is no valid medical or scientific basis for the disparity in penalties between cocaine base and powder. Second, Dr. Schwartz concluded that there is no rational basis for distinguishing between cocaine powder and crack cocaine in terms of the addictive potential of these drugs. Although Dr. Schwartz conceded that it is possible that crack may have the potential for greater psychological addiction than cocaine, Dr. Schwartz asserted that to his expert knowledge, there is no objective scientific data which supports the conclusion that crack cocaine is more physically addictive than cocaine powder.
Having reviewed the entire record before it, the Court shall first determine the relevant level of scrutiny, and then apply it to the facts of this case.
2. Level of Scrutiny
For equal protection challenges, "the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate [government] interest." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (citations omitted). However, when a statutory classification disadvantages a suspect class or impinges upon the exercise of a fundamental right, a legislative classification must further a compelling governmental interest to withstand constitutional review. Plyler v. Doe, 457 U.S. 202, 216-17, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982).
Section 844(a) implicates neither a suspect class nor a fundamental right. Defendant has presented evidence which clearly demonstrates that the mandatory minimums imposed for possession and distribution of cocaine base have had a disproportionate impact on African Americans. However, "'[disproportionate impact] is not the sole touchstone of an invidious racial discrimination. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.'" Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1979) (quoting Washington v. Davis, 426 U.S. 229, 242, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) (citations omitted)). Defendant's evidence does not establish "that Congress enacted the more severe crack penalties, or allowed them to remain in effect, 'to further a racially discriminatory purpose.'" United States v. Willis, 967 F.2d at 1225 (quoting McCleskey v. Kemp, 481 U.S. 279, 298, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987)).
Therefore, the Court declines to apply any level of heightened scrutiny to § 844(a). The Court finds that § 844(a), like § 841(b)(1), permissibly differentiates on the basis of drug type and quantity, providing higher penalties for possession of over five grams of cocaine base than for possession of the same amount of powder cocaine. This holding is consistent with other federal cases which have considered similar equal protection challenges. See, e.g., n.4 supra. With the exception of State v. Russell, which was decided under the Minnesota Constitution, courts consistently have applied a rational basis test to statutory provisions that distinguish between cocaine base and cocaine powder for purposes of sentencing.
3. Rational Basis Review
Defendant contends that the legislative history behind the 1988 amendment to § 844(a) clearly indicates that Congress designed the mandatory five year provision to make it harder for dealers to avoid the mandatory five year penalty of § 841(b)(1) by carrying less than five grams while distributing.
In particular, defendant argues that a mandatory five year minimum penalty for a first time offender with more than five grams is logically incompatible with the "stated purpose" of the 1988 amendment.
Additionally, defendant maintains that the testimony presented by Dr. Seltzer and Dr. Schwartz "make[s] clear that the government's rationale has no basis in fact" and that the relationship of the classification in § 844(a) to its asserted goal "is so attenuated as to render the distinction arbitrary [and] irrational." City of Cleburne, 473 U.S. at 446. Defendant claims that § 844(a) irrationally distinguishes between individuals who possess more than five grams of cocaine base and the following groups:
1. those who possess, without intent to distribute, any quantity of any other controlled substance;
2. those who possess, without intent to distribute, any amount of cocaine powder;