Crack Cocaine and Equal Protection
CRACK COCAINE AND EQUAL PROTECTION
During the 1980s, the federal government and many states adopted particularly harsh sentences for possessing or trafficking in crack cocaine. This sentencing has become controversial because it is borne largely by African American defendants, and because penalties at both the federal and state level are much lower for possession or sale of powder cocaine, the form of cocaine with which defendants of other races tend to get caught. In federal court, for example, crack defendants since 1986 have received by statute the same sentences imposed upon defendants convicted of trafficking in one hundred times as much powder cocaine.
Crack and powder cocaine are different forms of the same drug. Indeed, crack cocaine is made from powder cocaine, and the conversion process is simple and inexpensive, so it tends to occur toward the end of the distribution chain. Unlike powder cocaine, though, crack cocaine can be smoked, which makes its psychotropic effects more intense and shorter lasting, and also makes it far more addictive. Crack also is easier than powder cocaine to handle in small quantities, and hence easier to sell to the poor.
Federal constitutional challenges to heightened sentences for crack cocaine trafficking have failed without exception. Because crack laws do not explicitly distinguish between defendants on the basis of race or any other suspect classification, courts have subjected the laws to "minimal scrutiny" under the equal protection clause. Such scrutiny asks merely whether the lines the law draws have a rational basis. The crack laws have passed this test easily, because cocaine is demonstrably more dangerous when it comes in the form of crack. As a consequence, the federal courts of appeals have unanimously rejected equal protection challenges to the crack sentences. In contrast, the Minnesota Supreme Court struck down an enhanced state penalty for trafficking in crack cocaine, but only after concluding that the equal protection guarantee in Minnesota's state constitution was more demanding than its federal analogue.
Some commentators have applauded the federal decisions and criticized the Minnesota court, reasoning that because crack cocaine does particular damage in poor, black communities, heightened penalties for crack trafficking hurt black drug dealers but help blacks as a whole. But others have been less sanguine. Federal judges have repeatedly attacked the crack laws as draconian, and some scholars have suggested that conventional equal protection analysis takes no account of the most troubling features of the crack penalties: the extent of the difference between the treatment of crack and powder cocaine, the special need for fairness in meting out criminal sanctions, and the grounds for suspecting that the crack sentences might be less severe were they not imposed almost entirely upon black defendants. Thus, the resounding failure of constitutional challenges to the federal crack sentences may speak less to the merits of the sentences than to the inadequacies of equal protection doctrine.
David A. Sklansky
Kennedy, Randall 1997 Race, Crime, and the Law. New York: Random House.
Sklansky, David A. 1995 Cocaine, Race, and Equal Protection. Stanford Law Review 47:1283–1322.