The opinion of the court was delivered by: LOUIS F. OBERDORFER
At issue here is whether the difference between the mandatory minimum sentences these defendants face after cooking or causing powder cocaine to be cooked into crack cocaine before they sold it and the lesser sentences they would have faced if they had delivered cocaine in powder form violates the Equal Protection Clause of the Constitution or the Eighth Amendment's prohibition of cruel and unusual punishment.
A jury convicted defendants on a multi-count indictment charging conspiracy and several counts of distribution of at least 50 grams of crack cocaine. The charges arose out of four separate sales to two undercover agents of the Drug Enforcement Administration between May and September of 1991. Defendants Riley Walls and Jerome Jackson made the sales. They initially delivered powder cocaine, but during the first transaction the agents specifically demanded that the powder cocaine be converted into crack. Agent Mark Ross testified at trial that the agents insisted on crack because they knew that crack carried heavier sentences than powder cocaine. See Trial Transcript (Nov. 25, 1992), at 50. None of the cocaine at issue in this case was sold to actual or potential users.
Walls has 15 prior criminal convictions, while Jackson has four drug convictions -- three involving distribution -- and an attempted prison breach. Walls is 45 years old, and Jackson is 38 years old. Walls and Jackson employed defendants Karen Blakney and Charles Campbell to perform the conversion by the simple process known in the trade as cooking. Both Blakney and Campbell are addicted to narcotics. Blakney was paid $ 100 by a DEA agent; Campbell's compensation was "a little piece . . . of crack cocaine." Trial Transcript (Nov. 23, 1992) at 48. In contrast to the records of Walls and Jackson, Blakney's criminal history consists of convictions for shoplifting in 1986, contempt of court for failure to appear for a court hearing in 1987, attempted possession of cocaine in 1988, a violation of the Bail Reform Act in 1988, and another violation of the conditions of her bail in that same year. Campbell has two prior felony convictions, both involving drug distribution.
In analyzing whether the crack-powder sentencing disparity denies constitutional equal protection to any of the defendants, the first necessary inquiry is whether the mandatory crack minimums, triggered by only one percent as much crack as the amount of powder cocaine required to trigger the same statutory minimum sentences, discriminate sufficiently based on race to necessitate a strict scrutiny analysis. Under such analysis, a statutory classification that discriminates based on race can only survive if the government demonstrates that the classification is "precisely tailored to serve a compelling governmental interest." Plyler v. Doe, 457 U.S. 202, 217, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). In order to prove that a facially neutral statute violates the Equal Protection Clause, a challenger must demonstrate a racially discriminatory purpose behind the statute. Washington v. Davis, 426 U.S. 229, 239, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). The challenger need not show that the statute rested exclusively on a racially discriminatory motivation. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). However, the statute violates equal protection only if it was enacted "because of, not merely in spite of" its discriminatory impact on a protected class. Personnel Administrator v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979).
Our Court of Appeals has determined, despite the foregoing, that there is a rational basis for the difference in the sentences imposed on account of crack transactions and powder cocaine transactions. United States v. Cyrus, 281 U.S. App. D.C. 440, 890 F.2d 1245, 1249 (D.C. Cir. 1989). However, it is not apparent that the Court of Appeals considered material produced by amici in this case with respect to the historical background and legislative history that culminated in the disparate punishment mandated by Congress for crack dealers and powder cocaine dealers.
In Arlington Heights, supra, the Supreme Court provided guidance about the "sensitive inquiry into such circumstantial and direct evidence of [discriminatory] intent as may be available" in examining a statute. Arlington Heights, 429 U.S. at 266. The Court identified several elements that tend to characterize intentionally discriminatory statutes. An initial factor is "the impact of the official action -- whether it 'bears more heavily on one race than another'" Id. (quoting Washington v. Davis, 426 U.S. at 242). Second, the Court suggested an examination of "the historical background of the decision . . . , particularly if it reveals a series of official actions taken for invidious purposes." 429 U.S. at 267. Third, the Court urged an inquiry into "the specific sequence of events leading up to the challenged decision." Id. Fourth, the Court stressed the importance of "departures from the normal procedural [and substantive] sequence . . . ." Id. Finally, the Court stated, "the legislative or administrative history may be highly relevant . . . ." Id. at 268.
Amici2 have put forward a powerful argument that imposition of the same sentence on a participant in a transaction involving 100 grams of powder cocaine and one involving one gram of crack violates the Equal Protection Clause. They point to expert opinion that there is no material difference between the inherent properties of powder and crack cocaine, or in their physical addictiveness. See Testimony of George Robert Schwartz, M.D., in United States v. Maske, Crim. No. 92-0132 (Feb. 17, 1993). Moreover, it is undisputed that, for example, for the year ending September 30, 1992, approximately 90 percent of those indicted for crimes related to crack cocaine were black, while only 3 percent were white; blacks constituted less than 30 percent of those convicted of crimes related to cocaine powder.
Amici have collected historical evidence that advocates of the Harrison Act of 1914, the very first federal law to police cocaine transactions, made a point of "the association of cocaine with the Southern Negro." Musto, The American Disease: Origins of Narcotic Control 254 (1973). A more recent scholarly work reiterates that "drugs were associated with unpopular subgroups. As David Musto observes, 'Cocaine raised the specter of the wild Negro, opium the devious Chinese, morphine the tramps in the slums.'" Friedman, Crime and Punishment in American History 355 (1993). There is other historical evidence that, after the election of 1912, "for the first time since the Civil War the federal government had placed its approval on the Southern caste system." Link, Woodrow Wilson and the Progressive Era 1910-1917 at 64-66 (1954). According to Musto, "the association of cocaine with the Southern Negro became a cliche a decade or more before the Harrison Act." The American Disease at 254. The House Ways and Means Committee that reported out the Harrison Act quoted a 1910 report by Dr. Hamilton Wright to the International Opium Commission, which stated that "the cocaine vice has been a potent incentive in driving the humbler negroes all over the country to abnormal crimes." International Opium Commission, Report of the International Opium Commission and on the Opium Problem as Seen Within the United States and Its Possessions 51 (1910), reprinted in House Committee on Ways and Means, 63d Cong., 1st Sess., Report on H.R. 6282 (June 24, 1913) at 2. According to Musto, "the purpose of Wright's strong statements in regard to cocaine and Negroes was, of course, to encourage the legislation . . ., partly by motivating hesitant southern Democrats . . . ." The American Disease at 44.
While much transpired in the world of drug law enforcement between the enactment of the Harrison Act and the mandatory minimum sentences enacted in the 1980s, it is judicially noticeable that it was not until the 1960s that many forms of racial discrimination were outlawed in the United States, and that racial tension relating to crime intensified by the time of the enactment of the 1986 sentencing laws. Amici found in the legislative history of the 1986 Act some embers of the discriminatory attitudes of early in the century and of the crime-related racial tensions of the 1980s in statements appearing in the legislative record of that Act. For example, a Florida sheriff testified before the Senate in support of the 1986 Act that "the seller we see is Haitian or black . . . ." "Crack" Cocaine: Hearing Before the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, 99th Cong., 2d Sess., at 58. Media accounts introduced into the Congressional Record included statements, which harked back to and thus connected with the Harrison Act era, that "most of the dealers, as with past drug trends, are black or Hispanic . . . . Whites rarely sell the cocaine rocks." 132 Cong. Rec. S4670 (daily ed. April 22, 1986) (emphasis added). The typical ...