actions of Congress, police and prosecutors, and the courts, which ultimately brought the penalties to bear upon them: The emanations from the racist origins of the Harrison Act, the racist implications arising from the public clamor in 1986 about crack in the inner city, and the haste in which Congress passed and enacted the enhanced mandatory penalty for any crime associated with a crack, as distinguished from powder, cocaine transaction.
More specifically, in Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962), the Supreme Court held that criminal punishment of a drug addict on account of his or her addiction is cruel and unusual.
In light of Robinson, the sentences of 10 years for Blakney and 20 years for Campbell, both of whom are drug addicts, are manifestly "cruel." Blakney and Campbell were bit players in the conspiracy. Their compensation was a pittance. Yet Blakney faces a mandatory sentence of 10 years, and Campbell faces a mandatory sentence of 20 years. If their conduct is considered part of a powder cocaine conspiracy, the guideline range for persons with their criminal history would be 24 to 30 months and 27 to 33 months, respectively. Thus, if sentenced for 140 grams of crack, Blakney would serve 8 additional years, or five times longer than if she were sentenced for the powder originally tendered to the undercover agents.
Campbell would serve an additional 17 years and 9 months, or nine times longer. They face these enhanced sentences because, as addicts feeding their habits, they cooked powder cocaine into crack for the profit of Walls and Jackson and for delivery, not to the public, but to undercover officers who had induced the conversion of the powder to crack in the first transaction.
This decision has not been taken without consideration of the fact that imposition of a 10-year sentence for possession with intent to distribute 50 grams or more of crack is, in one sense, "usual"; it is done with great frequency. However, Furman, supra, held cruel and unusual not the death penalty itself, but arbitrary and capricious application of that penalty. The Supreme Court found the application of the death penalty unconstitutional where it was "imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). The facts on this record, taken as a whole, demonstrate that application of the mandatory crack minimums to Blakney and Campbell is arbitrary and capricious, and therefore unusual. Whether the same analysis, or the same conclusion, will be appropriate to some of the many defendants who face these penalties remains for the courts that sentence them to determine.
Nor have these conclusions been reached without consideration of the fact that Blakney's and Campbell's role in the conspiracy consisted of converting powder cocaine into crack. It could be argued that, even if Walls and Jackson were originally engaged in selling powder cocaine, Blakney's and Campbell's role involved only crack. However, Blakney and Campbell were convicted of preparing for sale what was essentially cocaine, albeit in a different form from powder. The cocaine was provided by Walls and Jackson. In order to feed their addictions, Blakney and Campbell performed as bit players, primarily as "cookers," in the Walls and Jackson enterprise. The question for sentencing is whether, in light of all the circumstances in this record, the addition of 8 years to Blakney's sentence and 17 years and 9 months to Campbell's sentence would be a cruel and unusual application of the statutory scheme for powder cocaine and crack, which evolved over the years in an atmosphere of discrimination,
ignores the underlying addiction that drove these defendants' behavior,
and, as applied, would, but for the Eighth Amendment, grossly distort the relationship between their conduct and the sanctions for it. Their particular ancillary role as cookers is a circumstance that would tend to support imposition of the heavier crack sentences. However, it does not trump the more significant circumstances that render the imposition of additional 8- and 17-year sentences cruel and unusual here.
In light of all the circumstances -- the historical context of the relevant law, its legislative history, and these defendants' condition, conduct, and compensation -- the imposition of additional sentences of 8 and 17 years on Blakney and Campbell would be not only cruel, but also "unusual," because their imposition would be arbitrary and capricious, Gregg, supra, and would provide "only marginal contributions to any discernible social or public purposes." Furman, 408 U.S. at 312 (White, J., concurring). Application of the heightened crack sentences to Blakney and Campbell would therefore violate the Eighth Amendment. Accordingly, Blakney and Campbell will be sentenced within the ranges prescribed for those who transact in powder cocaine: 24 to 30 months in the case of Blakney, and 27 to 33 months for Campbell. Upon release both will be under the supervision of the United States Probation Office of this Court for six years subject to special conditions that, among other things, each will participate in supervised drug surveillance and treatment and will be subject to being returned to prison by the Court for any violation of that, or any other, condition of release.
It is so ORDERED.
Date: January 26, 1994
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE