Problems in Cocaine Sentencing: An Update after 25 Years
Zedeck, Morris S., Judicature
Despite steps by the Supreme Court and Congress to correct problems with cocaine sentencing, definitions of cocaine and its various forms still need to be addressed
Twenty-five years have passed since the passage of the Anti-Drug Abuse Act [Pub. L. 99-570, Act) in 1986. There were two problems with the Act. First, the nomenclature used to describe the various forms of cocaine was chemically incorrect. Second, Congress punished those who deal (manufacturing, distributing or dispensing various forms of cocaine, or possessing with intention to manufacture, distribute or dispense various forms of cocaine) in cocaine base (e.g., crack) more harshly than those who deal in cocaine hydrochloride (powder cocaine). Persons convicted of distributing 50 grams of a substance containing cocaine base received the same ten-year mandatory minimum sentence as those guilty of distributing 5,000 grams of a substance containing cocaine hydrochloride. The United States Sentencing Guidelines (USSG) prescribed sentences using the same 100:1 ratio for quantities above and below those stipulated in the statutes. Medical and scientific evidence, however, did not support this ratio.
During the past 25 years, I and others tried to convince the proper authorities to change the Act as well as the USSG. 1 wrote President Clinton, members of Congress, and the United States Sentencing Commission (USSC), published an article eleven years ago describing the issues and offering remedies1 and recently wrote a book2 about my experiences as an expert witness in which one chapter is devoted to the issues surrounding cocaine sentencing. In these 25 years, the United States Supreme Court and Congress have made some progress in correcting these problems. In this article, I will briefly summarize some of the issues surrounding cocaine sentencing, describe recent changes to correct the problems and finally, offer suggestions to correct the remaining deficiencies.
Cocaine is found naturally in species of the plant genus, Erythroxylon. It is defined chemically as an alkaloid and is present as the base form of cocaine. It can be treated with acids to produce salts (e.g., cocaine hydrochloride). Crack is cocaine freed from its salt form and returned to its base form using sodium bicarbonate (baking soda), heat and drying, resulting in small chunks. Thus, crack denotes a method used to produce the base form of cocaine and describes its physical form. Cocaine hydrochloride exists as a powder or as crystalline material.
Cocaine hydrochloride can be dissolved in water and injected intravenously or be absorbed through the nasal tissue following snorting. The base forms of cocaine must be heated and the vapors inhaled. In any case, the drug's effects occur rapidly.
Statute and Guideline Terminology
The statutes prescribe different sentences for those guilty of dealing in cocaine and cocaine base. Congress intended the term cocaine to mean cocaine hydrochloride and the term cocaine base to include crack cocaine, freebase cocaine (another base form of cocaine produced using ammonia and ether) and coca paste (a product obtained during extraction and purification of cocaine from coca plant leaves, which contains cocaine base and is smoked).3 However, the word cocaine by itself means the base form of cocaine.4 Cocaine and cocaine base are chemically one and the same.
The statute at 21 USC 841(b)(l) (A)(U)(II), meant to apply to cocaine hydrochloride, reads "cocaine, its salts..." Even if Congress intended the word cocaine to mean cocaine hydrochloride, the wording clearly denotes that the word cocaine refers to its base form. The statute at 21 USC 841 (b)(1)(A)(iii) refers to cocaine base. The two statutory references prescribe ten-year sentences for different amounts of the same chemical.
A recent decision by the U.S. Supreme Court (DePierre v. United States, No. 09-1533, 564 U. …