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This Court accepts the Eighth Circuit's invitation to present a novel legal analysis of the adverse disparate impact on blacks resulting from the imposition of 21 U.S.C. We do not invite mere repetition of prior rejected arguments, without new facts or legal analysis." Id.
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in connection with crack cocaine punishments, which continue to perplex many sentencing judges.
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"With so much at stake, however, in this and other cases, we are reluctant to say that full exploration of the issues is unwarranted. However, the Eighth Circuit acknowledged the "extraordinary disparity in punishment between possession of cocaine powder and cocaine base." United States v. The Eighth Circuit Court of Appeals has rejected numerous constitutional challenges to the crack statute and the United States *771 Sentencing Guidelines. This disparity is so significantly disproportional that it shocks the conscience of the Court and invokes examination. Inasmuch as crack and powder cocaine are really the same drug (powder cocaine is "cooked" with baking soda for about a minute to make crack), it appears likely that race rather than conduct was the determining factor.Īlthough both statutory provisions purport to punish criminal activity for both crack and powder cocaine, the blacks using crack are punished with much longer sentences than whites using the same amount of powder cocaine. While Congress may have had well-intentioned concerns, the Court is equally aware that this one provision, the crack statute, has been directly responsible for incarcerating nearly an entire generation of young black American men for very long periods, usually during the most productive time of their lives. As "proof," Congress relied upon endless media accounts of crack's increased threat to society. Both provisions punish the same drug, but penalize crack cocaine 100 times more than powder cocaine!Ĭongress tells us that the rationale for this sentencing dichotomy which produces harsher punishment for involvement with crack cocaine is because it is so much more dangerous than powder cocaine.
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The difference the key difference is that possession and distribution of 50 grams of crack cocaine carries the same mandatory minimum sentence of 10 years imprisonment as possession and distribution of 5000 grams of powder cocaine. Therefore, defendant's argument continues, providing longer sentences for possession of cocaine base than for the identical amount of cocaine powder treats a similarly situated defendant in a dissimilar manner, which violates his right to equal protection under the law.īefore this Court are two different sentencing provisions contained within the same statute for possession and distribution of different forms of the same drug. Specifically, defendant Clary asserts that the penalty differential of the "100 to 1" ratio of cocaine to cocaine base contained in both the crack statute and the United States Sentencing Guidelines has a disproportionate impact on blacks because blacks are more likely to possess cocaine base than whites who are more likely to possess cocaine powder. Upon evaluating the evidence and legal arguments, the Court issues this memorandum. After extended hearings the Court took this matter under advisement and gave it detailed and exhaustive consideration. The Court scheduled this case for hearing on the motion for a downward departure and the motion challenging the constitutionality of the statute. Prior to sentencing, Clary, a black male, filed a motion challenging the constitutionality of the crack statute and contended, inter alia, that the sentence enhancement provisions contained in it and United States Sentencing Guidelines (U.S.S.G.) § 2D1.1 violated his equal protection rights guaranteed by the Fifth Amendment. § 841(b) (1) (A) (iii) (hereinafter referred to as the "crack statute"), punishable by a mandatory minimum sentence of 10 years imprisonment. Clary pled guilty to possession with intent to distribute cocaine base ("crack cocaine"), pursuant to 21 U.S.C. Louis, IL, for defendant.ĭefendant Edward Clary was arrested for possession with intent to distribute 67.76 *770 grams of cocaine base. Louis, MO, for plaintiff.Īndrea Smith, Asst. *769 Richard Poehling, Dan Muehlmann, Asst. Missouri, E.D.įindings and Conclusion of Law Addendum to Memorandum Re: Imposition of Sentence February 23, 1994.