New York Criminal Attorney Blog

As I have been discussing in previous blogs, the rationale behind the 100:1 powder cocaine to crack cocaine sentencing disparity has been proven to be unfounded and false. Yet another argument the New York criminal defense firm Tilem & Campbell is raising in one of our appellate challenges to the constitutionality of the sentencing disparity between crack cocaine and powder cocaine is that crack cocaine and powder cocaine are the same drug.

As observed by the United States Supreme Court, crack and powder cocaine are two forms of the same drug and they share the same active ingredient – cocaine hydrochloride. Kimbrough v. U.S. 128 S.Ct. 558, 566 (2007). Furthermore, numerous studies have shown that the physiological and psychotropic effects of crack and powder cocaine are the same, and the drugs are now widely acknowledged as pharmacologically identical.

For example, a 1996 study published in the Journal of the American Medical Association found analogous effects on the body for both crack and powder cocaine.

As I have previously discussed, Congress justified Draconian mandatory minimum sentences for federal crack cocaine offenses upon their mistaken belief that, among other things, crack cocaine was more dangerous than powder cocaine because it was believed to be more addictive and create more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular with teenagers; and that its low cost made it more accessible and popular.

These concerns and beliefs have proven false. As observed by Congressman Alcee Hastings (D Fl): “Rather than waging war on drugs, [the mandatory minimums for crack offenses] waged war on America’s poor and minorities.” Rep. Hastings also noted that the crack mandatory minimums were “rooted in propaganda rather than empirical data.” (See Congressman Alcee Hastings’ website )

The reality is, the mandatory minimums are not being imposed on the “major” and “serious” suppliers of crack cocaine but instead the majority of crack cocaine defendants are small-scale, street-level dealers. The 100:1 ratio disproportionately impacts far more low-level traffickers than it does the intended targets of the ratio. As observed by the Supreme Court, “the 100-to-1 ratio can lead to the anomalous result that retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

New York criminal defense firm Tilem & Campbell is vigorously challenging the constitutionality of the mandatory minimum sentences for federal crack cocaine offenses set forth in the Anti-Drug Abuse Act of 1986 (ADAA). We currently have one appeal on this issue pending before the Second Circuit Court of Appeals and will be filing another appeal shortly.

The ADAA established a two-tier system of sentencing with 5 and 10 year mandatory minimum sentences for certain manufacturing and distribution offenses. Congress passed the 10 year mandatory minimum to combat “major drug dealers” while the 5 year mandatory minimum was for the “serious traffickers”. In reality, however, the mandatory minimums are weight driven. It is the weight of the drugs involved that controls with no regard for whether the defendant is a “major dealer” or “serious trafficker”.

The ADAA also established a 100-to-1 disparity between the distribution of powder cocaine and crack cocaine (21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B)). For example, distributing just 5 grams of crack cocaine (about a thimble full) carries a mandatory minimum five-year federal prison sentence. However, one must distribute 500 grams of powder cocaine to trigger that same five-year federal prison sentence. (21 U.S.C. § 841).

Just 16 years after the passage of The Comprehensive Drug Abuse Prevention and Control Act of 1970 which all but eliminated harsh mandatory minimums for federal drug offenses, Congress reversed course and passed The Anti-Drug Abuse Act of 1986 (ADAA). The ADAA was passed by Congress during the media frenzy that followed the cocaine induced death of University of Maryland basketball star Len Bias. The ADAA established harsh mandatory minimum sentences for federal drug offenses involving “crack” cocaine (referred to as “cocaine base” in the federal statutes).

Congressional members used Bias’ high-profile death as a political opportunity to portray a “tough on crime” stance. However, Congress utterly failed to undertake any discussion or debate about the failings of the mandatory minimums found in the The Boggs Act of 1951and the Narcotics Control Act of 1956 (which I have discussed in previous blogs).

In fact, Sen. Specter noted that Congress “may be acting with undue haste” and Sen. Mathias stated that none of the members of the Senate “had an adequate opportunity to study this enormous package” and that the ADAA “did not emerge from the crucible of the committee process, tempered by the heat of debate.”

In continuing with my commentary on federal mandatory minimum sentencing for drug offenses and Tilem & Campbell’s challenge to the constitutionality of such sentences, it’s of paramount importance to point out other, influential groups and individuals who are also opposed to mandatory minimums for drug offenses. As previously discussed, former Presidents Kennedy, Johnson and Nixon were all opposed to mandatory minimums for drug offenses and, at Nixon’s urging, in 1970, Congress abolished almost all mandatory minimum sentencing for federal drug offenses with the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

These former Presidents were not, and are not, the only influential individuals opposed to such sentences. With regard to the Boggs Act of 1951 and the Narcotics Control Act of 1956 (both of which contained draconian mandatory minimum sentences for federal drug offenses), a Senate Judiciary Subcommittee found that 92 percent of federal prison wardens who responded were opposed to the mandatory minimum sentences, and 97 percent were opposed to the prohibition against probation or parole. Of the probation officers who responded, 83 percent were opposed to mandatory minimums while 86 percent were opposed to prohibition against probation or parole. Of the federal judges who responded, 73 percent were opposed to mandatory minimums, and 86 percent were opposed to the prohibition against probation or parole.

Many members of law enforcement also supported the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its elimination of the mandatory minimum sentences found in the Boggs Act of 1951 and the Narcotics Control Act of 1956. According to then Congressman William L. Springer (R Ill.): “It is the opinion of most law enforcement people that the harsh mandatory sentences in narcotics law have been a hindrance rather than an aid to enforcement.”