as well as changes in the statutory mandatory minimum penalties. See United States Sentencing Commission, Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25074 (1995)[hereinafter Guideline Amendments ]; United States Sentencing Commission, Materials Concerning Sentencing for Crack Cocaine Offenses 57 CRL 2127 (May 31, 1995)[hereinafter Sentencing Materials ]. Based on the factual information gathered in the Special Report, these proposals would "equalize sentences for offenses involving similar amounts of crack cocaine and powder cocaine at the level currently provided for powder cocaine." Guideline Amendments, 60 Fed. Reg. at 25076.
Thus, the Sentencing Commission has concluded that crack cocaine offenses should be punished no more harshly than powder cocaine offenses. The NAACP correctly argues that "although the Commission's proposed amendments ... cannot be given judicial effect until they become law, the evidence on which the Commission based its legal conclusions is relevant now." Amicus Brief at 4.
The Sentencing Commission found that "the congressional decision to treat powder and crack cocaine differently arose primarily from members' beliefs that crack cocaine was significantly more dangerous than powder cocaine." Special Report at 180. Motivating this belief were the following reasons: (1) crack cocaine was viewed as extraordinarily addictive; (2) Congress believed there was a higher correlation between crack cocaine use and the commission of other serious crime; (3) the physiological effects of crack cocaine were seen as leading to higher rates of psychosis and death; (4) Congress believed that young people were especially prone to crack cocaine use; and (5) "Congress believed that crack cocaine's purity and potency, relatively low cost, ease of manufacture, transportation, disposal, and consumption were leading to widespread use." Id. at 180-81.
The Commission explored the accuracy of these views. It first explained that crack cocaine is derived from cocaine powder. Cocaine powder is dissolved in a solution of sodium bicarbonate and water; this solution is then boiled, and the solid substance which results is allowed to dry. Special Report at 14.
The Commission found "that there is a greater likelihood of addiction resulting from the casual use of crack cocaine than from the casual use of powder cocaine." Id. at 181.
Both crack cocaine and cocaine powder produce the same type of physiological and psychotropic effects. However, the injection of cocaine powder and the inhalation (smoking) of crack cocaine are absorbed more quickly by the body than the insufflation (snorting) of cocaine powder, thus leading to a greater intensity and shorter duration of the psychotropic effects. This in turn leads to a greater likelihood of dependence and abuse. Id. at 22-30, 182. Because only a small percentage of the users of cocaine powder inject the drug, powder cocaine use is perceived as being, on average, safer than snorting crack cocaine. Id. at 35, 182-83.
The Commission further found that "while most cocaine-related emergency room admissions result from smoking crack, most cocaine-related deaths result from injection of powder." Id. at 184. It found that the sparse data available suggests that those operating in crack cocaine -- its marketing and distribution -- are more prone to increased levels of criminal activity, including violence and weapon possession. Id. at 184-86. However, it found no evidence that the use of crack cocaine alters a person's behavior to make that person more likely than those who use cocaine powder to commit a crime. Id. at 197. Finally, the Commission found that crack can be easily manufactured, without major trafficking efforts, and that "the ease by which crack can be administered and its ability to be marketed cheaply have made it particularly appealing and accessible to a broader population, including ... the poor and the young." Id. at 188-89, 195.
In light of this empirical information, which was largely unavailable when Congress adopted the cocaine statutes, the Sentencing Commission reassessed the 100:1 quantity ratio between cocaine powder and crack cocaine and recommended that the ratio be equalized to 1:1. The Commission found that many of the harms associated with crack cocaine are already accounted for by the current Sentencing Guidelines. For example, although "crack cocaine offenders generally have more extensive criminal records ... the current guidelines already properly provide for enhanced penalties for those with greater criminal histories as well as very severe sentences for career offenders and armed criminals." Sentencing Materials, 57 CRL at 2129. Moreover, the Commission has proposed a number of amendments to the Guidelines that specifically address other aggravating factors associated with some, but not all, crack cocaine offenses. "These amendments provide for considerably higher sentences for the use of a firearm during a drug offense, the involvement of assault and other prohibited weapons, the involvement of criminal street gangs in drug offenses, drive-by shootings, and the use of juveniles in the commission of offenses." Id.
Furthermore, while acknowledging that it has long differentiated between drug types as a basis for its recommended penalties, the Commission was moved by "six inescapable facts":
First the Commission's guidelines provide for severe
punishment for those trafficking in powder cocaine. There have been few if any complaints about the leniency of these guidelines. Second, powder and crack cocaine have the same active ingredient -- the cocaine alkaloid -- and both produce the same type of physiological and psychological effects. Third, while smoking crack cocaine can lead to addiction in a greater number of cases than can snorting powder, injecting powder cocaine is as dangerous as or more dangerous than smoking crack. In light of the fact that crack cocaine can be easily produced from powder cocaine, the form of cocaine is simply not a reasonable proxy for dangerousness associated with use. Fourth, any quantity ratio greater than equivalency will lead to the unfair result that more sophisticated, higher-level powder distributors will be sentenced relatively less severely than some of the retailers they supply. Fifth, the present system results in obvious punishment inequities by providing the same penalty for 500 grams of powder (1/2 kilo) -- yielding between 1,000 and 5,000 doses and costing up to $ 75,000 -- as for five grams of crack cocaine yielding between 10 and 50 doses and costing up to $ 750. And sixth, any quantity ratio higher than equivalency will impact almost entirely on minority defendants.
Id. at 2130.
The conclusions and recommendations of the Sentencing Commission sounded a sharp retreat from current cocaine sentencing policy. However, the court cannot agree with the NAACP that they "contradict every factual assumption relied on by the Third Circuit in Jones." Amicus Brief at 7.
The NAACP argues that the Jones court's assumption that crack cocaine is a different drug than cocaine powder has been contradicted by the Sentencing Commission. It points to the Commission's summary that "crack and powder cocaine are pharmacologically the same drug." Guideline Amendments, 60 Fed. Reg. at 25077. This statement, however, does not contradict Jones. The Sentencing Commission apparently reached this conclusion because it found that all forms of cocaine have the same active ingredient -- cocaine alkaloid-- and produce the same type of physiological and psychotropic effects. See Special Report at 12, 14. However, the Commission made no findings which contradict the finding in Jones that crack cocaine and cocaine powder have different chemical compositions. The Commission explained that in cocaine base "the cocaine alkaloid has been 'freed' from the salt substrate" found in cocaine powder, and that "it vaporizes at a significantly lower temperature than powder cocaine." Id. at 13. The finding by the Jones court that crack cocaine is a different drug than cocaine powder thus remains intact.
The NAACP also claims that the finding in Jones that crack cocaine is more addictive than cocaine powder has been contradicted by the Sentencing Commission. It is true, as the NAACP contends, that any greater addictiveness of crack cocaine than cocaine powder stems not from their chemical compositions but from their common routes of administration. Indeed, the court in Jones apparently was unaware that cocaine powder can be injected and that injection "is even more likely to lead to addiction than is smoking." Guideline Amendments, 60 Fed. Reg. at 25077. However, the difference in addictiveness for purposes of rational review remains viable. Because only a small percentage of cocaine powder users inject the drug, a reasonable distinction between the two forms of cocaine can still be drawn on the basis of addictiveness. As the Court of Appeals noted in Frazier, even though injection is as harmful as snorting, "Congress is entitled to legislate for the general run of cases rather than the extremes." 981 F.2d at 96 n.8.
The Jones holding remains viable for two additional reasons. First, the findings of the Sentencing Commission do not refute the Court of Appeal's conclusion that the two forms of cocaine can be treated differently in the law because crack cocaine is cheaper to manufacture and purchase, and thus more widely available. Even standing alone, this rationale would satisfy equal protection at its lowest level. Second, although the court did not assert a direct connection between the use of crack cocaine and the increased incidence of violent crime, such a connection nevertheless provides a reasonable ground for a legislative body to penalize crack cocaine more severely. The NAACP points to the Sentencing Commission's preference to account for this difference through penalty enhancements within other guidelines. That an alternative exists, however, does not mean that a chosen path is unconstitutional.
In sum, although the Sentencing Commission's findings contradict some of the assumptions leading to the 100:1 ratio and led it to propose a 1:1 ratio, they do not, even if ultimately adopted by Congress, warrant the conclusion that no rational distinction can be drawn in devising penalties for crack cocaine and cocaine powder. This conclusion was reached by the Sentencing Commission itself: "The Commission concludes that a policymaker could infer that crack cocaine poses greater harms to society than does powder cocaine." Special Report at 195. This conclusion also comports with the holding of every circuit court that has applied rational review to the cocaine sentencing scheme; like the Court of Appeals in Jones, each has found the scheme constitutional. See, e.g., United States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992); United States v. Cyrus, 281 U.S. App. D.C. 440, 890 F.2d 1245, 1248 (D.C. Cir. 1989). See also Frazier, 981 F.2d at 96 (Eighth Amendment)(reasonable grounds for distinguishing between crack and powder exist "including differences in the purity of the drug, the dose size, the method of use, the effect on the user, and the collateral social effects of the traffic in the drug"). But see State v. Russell, 477 N.W.2d 886 (Minn. 1991)(applying a more stringent standard of equal protection rational review under state constitution and finding 10:3 ratio between cocaine powder and crack cocaine under state penalty scheme unconstitutional).
Moreover, in Alton, the Court of Appeals for the Third Circuit stood by its conclusion in Jones that Congress had a rational basis for treating the two substances differently. Alton, 60 F.3d 1065, 1995 WL 459157, at *4 (citing the finding in Jones that there are chemical differences between the two forms of cocaine, and noting that other courts have emphasized crack cocaine's potency, addictiveness, the ease with which it can be carried and concealed, and the violence it produces). Although the Court of Appeals noted that the district court had based its decision to depart downwards in part "on indications that Congress has reconsidered the rationality of the 1 to 100 ratio," Id., 60 F.3d 1065, 1995 WL 459157, at *2, it did not address the conclusions and recommendations of the Sentencing Commission. Nevertheless, even if this court were to agree with the NAACP, it would be extremely hesitant to depart from this Third Circuit precedent.
The current sentencing scheme for cocaine offenses has the effect of incarcerating for lengthy periods young black men who distribute crack cocaine while white distributors of cocaine powder, the drug from which crack cocaine is derived, receive comparatively light sentences. Although this scheme might not be soft on crime, it has been soft on equality. The court's role, however, is to pass judgment on the constitutionality of the penalty provisions, not on their wisdom. Accordingly, the court finds that the 100:1 ratio between cocaine powder and crack cocaine in the cocaine sentencing scheme does not violate the equal protection component of the Fifth Amendment's Due Process Clause.
An appropriate order follows.
BY THE COURT:
Edward N. Cahn, Chief Judge
AND NOW, this 21 day of August, 1995, upon consideration of Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and the government's response thereto, it is hereby ORDERED that the motion is DENIED.
BY THE COURT:
Edward N. Cahn, Chief Judge