On Monday, the Supreme Court will hear argument in DePierre v. United States, 09-1533, and decide a long-running dispute on what Congress meant by the term “cocaine base” for purposes of imposing mandatory minimum sentences under the federal narcotics statute.
In 1985, Maryland basketball star Len Bias died of a cocaine drug overdose a few days after being drafted by the Boston Celtics. So Congress did what it does best when tragedy strikes; it rushed-in and passed the Anti-Drug Abuse Act of 1986, which imposed mandatory minimum sentences for person trafficking in cocaine. But not just powder cocaine: the Act also targeted such things as cocoa leaves, freebase, and the newly-despised form of cocaine called crack. For offenses involving 5 kilograms of detectable amounts of certain cocaine like powder, the Act proscribed a 10-year mandatory minimum. For offenses involving 50 or more grams of “cocaine base,” the Act prescribed the same punishment. The 100-to-1 powder to crack ratio was thus born.
Fast forward 20 years. The perceived injustices with crack cocaine sentencing come into vogue. After 20 years of being badmouthed, the Federal Sentencing Commission in 2007 finally sought to alleviate the disparity produced by the 100-to-1 ratio by reducing the Sentencing Guidelines ranges for crack cocaine. Even Congress got involved; in 2010 they amended the quantity amounts that trigger the 10-year mandatory minimum sentence—from 50 grams to 280 grams. And the 111th Congress introduced a bill, ultimately not passed, that would make the changes to the triggering amounts retroactively applicable to people sentenced prior to the passage of the new law.
While Congress and the Sentencing Commission amended the country’s policy on crack cocaine, the courts continued to grapple with portions of the Anti-Drug Abuse Act. One portion in particular, the definition of “cocaine base,” continued to divide lower courts. Six circuits had held that cocaine base includes any form of cocaine qualifying chemically as a base, whereas five other circuits had said that Congress meant only crack or other smokeable forms of cocaine in order for the 10-year sentence to apply. That meant a person could miss out on the mandatory minimum solely due to the location they were lucky enough to be caught in. Such “grossly disparate treatment of similarly-situated individuals is intolerable,” the petitioner argued. The Court agreed and granted cert.
The merits briefs primarily dispute the clarity of the statutory language. The petitioner argues that the phrase “cocaine base” means only crack cocaine because the statutory structure and purpose suggest that Congress was predominantly concerned with crack when it passed the Act. They further contend that using the scientific term for cocaine base would violate the construction rules of surplusage and absurd results. And if the Court finds the statutory language is ambiguous, petitioner contends that his construction must prevail under the rule of lenity. The practical result of petitioner’s view would be that some cocaine derivatives like freebase and cocoa leaves are excludable from the 50-gram, 10-year mandatory minimum penalty.
The government contends that the statutory language could not be clearer: Congress meant to use the scientific meaning of “cocaine base” which includes most forms of cocaine outside of powder. (As a brief aside, I have always wondered how parties can claim that a statute is crystal clear when 11 circuits have looked at the issue and are split 6 to 5.) Although the petitioner did not contend otherwise, the government also argued that the Sentencing Commission’s definition of cocaine base in the Sentencing Guidelines is not dispositive on the meaning of cocaine base in the Act. Lastly, the government said that if the Court were to adopt petitioner’s approach, lower courts could not easily define “crack cocaine,” thus leading to “practical anomalies.”
On reply, the petitioner argues that no court has had practical problems in defining crack. In fact, the brief argues that the Sentencing Commission’s “entirely workable standard” has been used for over fifteen years in calculating Guidelines ranges “without the chaos curiously prophesized by the government.” In any event, any practical considerations should give way since the statute is ambiguous and the rule of lenity is applicable, the petitioner added.
From a distance this case appears inconsequential to federal sentencing. It does not implicate a constitutional issue and the worst parts of the 100-to-1 ratio have already been ameliorated by the new triggering amount changes. But up close the case is larger than that. Especially for those thousands sentenced under the old regime, where a handful of freebase (which is different from crack) netted them a dime-piece or more in federal prison. A new statutory interpretation could arguably open the doors for those sentenced to non-crack cocaine prior to 2010 and lead to more bed space for the overpopulated federal prisons. In addition, it would stifle the government’s ability to use charging instruments as a weapon employed to prohibit defendants from exercising their trial rights.
Judging by the split in the circuits this will be a close case. In deciding how to resolve the statute, the Court will no doubt feel an intuitive pull to rectify the different meanings of “cocaine base” between the Act and the Sentencing Guidelines, as they did with another statute last term in Dillion v. United States, 560 U. S. __ (2010). That could very well be the difference.