“All crack is cocaine base but not all cocaine base is crack,” Judge Diane S. Sykes noted in U.S. v. Edwards, 397 F.3d 570 (7th Cir. 2005).
The relevance of that distinction, however, has plagued federal courts for years. The 7th Circuit concluded in Edwards that the two terms should be interpreted identically; therefore, defendants were only subject to the harsher mandatory minimum penalties reserved for cocaine base, if the cocaine was crack.
But on June 9, the U.S. Supreme Court effectively overruled that interpretation, holding that all cocaine base triggers the longer penalties provided for in 21 U.S.C. 841(b)(1).
Frantz DiPierre received the statutory 10-year minimum sentence for distributing more than 50 grams of cocaine base. At trial, he had argued the government must prove not only that he sold cocaine base, but that it was crack cocaine.
The district court disagreed, and the 1st Circuit affirmed, as did a unanimous U.S. Supreme Court, in an opinion by Justice Sonia Sotomayor.
The court began with an explanation of the difference between cocaine base and cocaine salt (powder cocaine). The chemical structure differs only in that powder cocaine contains an additional hydrogen molecule (H) and a chlorine molecule (Cl).
Powder cocaine is converted into crack cocaine by removing the HCl with sodium bicarbonate (baking soda). Cocaine base can also be made by removing the HCL with ether and ammonia.
The purpose is to lower the vaporization temperature, allowing the drug to be smoked and producing a more intense level of euphoria.
The court concluded that, however the HCl is removed, the product is cocaine base, rather than cocaine salt, and thus is “cocaine base” within the meaning of the statute. “The term ‘cocaine base’ is more plausibly read to mean the ‘chemically basic form of cocaine’ than it is ‘crack cocaine.’”
DePierre argued that “cocaine base” should be interpreted as “crack cocaine,” because that was the legislative intent.
The court acknowledged that the impetus for the law was the emergence of widespread crack cocaine use. But the court also found legislative history, such as medical testimony to Congress, suggesting a broader intent.
The court concluded, “Given crack cocaine’s sudden emergence and the similarities it shared with other forms of cocaine, this lack of clarity is understandable, as is Congress’ desire to adopt a statutory term that would encompass all forms. Congress faced what it perceived to be a new threat of massive scope. Accordingly, Congress chose statutory language broad enough to meet that threat.”
The court also acknowledged that its interpretation will create sentencing anomalies, because the Sentencing Guidelines define “cocaine base” to include only crack cocaine. But the court found this insufficient to disregard the language of the statute.
Justice Antonin Scalia wrote a concurring opinion, disavowing the lead opinion’s reliance on legislative history, opining, “Even if Dr. Byck had not lectured an undetermined number of likely somnolent Congressmen on ‘the damaging effects of cocaine smoking on people in Peru,’ we would still hold that the words ‘cocaine base’ mean cocaine base.”
Case: DePierre v. U.S., No. 09-1533 (http://www.supremecourt.gov/opinions/10pdf/09-1533.pdf)
Issue: Is the definition of “cocaine base” in 21 U.S.C. 841 (b)(1) limited to crack cocaine?
Holding: No. “Cocaine base” includes coca paste and cocaine freebase.
David Ziemer can be reached at [email protected]