US v. Clary, 89-167-CR (4).

• Decision Date: 23 February 1994
• Docket Number: No. 89-167-CR (4).,89-167-CR (4).
• Citation: 846 F. Supp. 768
• Parties: UNITED STATES of America, Plaintiff, v. Edward James CLARY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

846 F. Supp. 768

UNITED STATES of America, Plaintiff, v. Edward James CLARY, Defendant.

No. 89-167-CR (4).

United States District Court, E.D. Missouri, E.D.

February 11, 1994.

Findings and Conclusion of Law Addendum to Memorandum Re: Imposition of Sentence February 23, 1994.

Richard Poehling, Dan Muehlmann, Asst. U.S. Attys., St. Louis, MO, for plaintiff.

Andrea Smith, Asst. Federal Public Defender, East St. Louis, IL, for defendant.

FINDINGS AND CONCLUSIONS OF LAW

CAHILL, District Judge.

Defendant Edward Clary was arrested for possession with intent to distribute 67.76 grams of cocaine base. Clary pled guilty to possession with intent to distribute cocaine base ("crack cocaine"), pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) (hereinafter referred to as the "crack statute"), punishable by a mandatory minimum sentence of 10 years imprisonment. 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.

The Court scheduled this case for hearing on the motion for a downward departure and the motion challenging the constitutionality of the statute. After extended hearings the Court took this matter under advisement and gave it detailed and exhaustive consideration. Upon evaluating the evidence and legal arguments, the Court issues this memorandum.

Specifically, defendant Clary asserts that the penalty differential of the "100 to 1" ratio of cocaine to cocaine base¹ contained in both the crack statute and the United States Sentencing Guidelines² 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. 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.

THE PROBLEM BEFORE THE COURT

Before this Court are two different sentencing provisions contained within the same statute for possession and distribution of different forms of the same drug. 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. Both provisions punish the same drug, but penalize crack cocaine 100 times more than powder cocaine!

Congress 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. As "proof," Congress relied upon endless media accounts of crack's increased threat to society. 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. 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.

Although 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. This disparity is so significantly disproportional that it shocks the conscience of the Court and invokes examination.

The Eighth Circuit Court of Appeals has rejected numerous constitutional challenges to the crack statute and the United States Sentencing Guidelines.³ However, the Eighth Circuit acknowledged the "extraordinary disparity in punishment between possession of cocaine powder and cocaine base." United States v. Marshall, 998 F.2d 634 (8th Cir.1993).

"With so much at stake, however, in this and other cases, we are reluctant to say that full exploration of the issues is unwarranted ... in connection with crack cocaine punishments, which continue to perplex many sentencing judges. We do not invite mere repetition of prior rejected arguments, without new facts or legal analysis." Id. at 635 fn. 2.

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. § 841(b)(1)(A)(iii). Here is the Court's analysis.

CRIME AND THE LEGISLATIVE RESPONSE

Crime!! The very word connotes fear and panic, resulting in a frenzied attempt to control and curtail criminal actions in today's violence-soaked world. Never before have Americans cringed at the thought of becoming victims of random, irrational assaults; never before has the fear and frustration of average citizens grown to such a level that a "lynch mob mentality" becomes the common emotional reaction to crime.

Today there are so many senseless crimes whose gory details are displayed in living color on living room TVs in America that people, inured to the bloodshed, simply retreat in horror from the senseless details. Crime has always been an unpleasant but ever present segment of life in America, but never has it been so brutally and instantaneously reported in repetitive words and pictures from all segments of the media — print, audio, and video. So whether there is more violence, as most believe, or whether the ratio is about the same but appears greater because of the larger population and visual immediacy makes little difference. There is no doubt that the public's perception is so pronounced that the public is prepared — no, anxious — to pay any price to control crime even to the abandonment of traditional constitutional safeguards.

The media has for years kept up a drum beat of repetitious reporting of the most horrendous criminal actions, intruding upon the grief stricken victims, interrogating them while they are in shock and tears, further enraging the public against anyone even accused of a crime. The presumption of innocence is now a legal myth.

Of especial importance is the fact that crime is no longer segregated to the other side of town. People living in the "better parts" of the community are now subject to the random anger and uncontrolled hatred of psychopaths and weak, frustrated individuals unable to cope with the problems of life. When one reads of the brutal murder of elderly persons in the bedrooms of their ransacked homes, of gangland style executions and drive-by shootings, and ravishment of innocent children of tender years, it is understandable that anxious citizens demand action. Legislators, feeling the heat of the public's anger, scramble to comply with the demands of raging infernos caused by the citizens' ire.

For the last few years there has been a feeding frenzy of responses by lawmakers of every stripe and political persuasion, so that both Congress and state legislators fill the hoppers with proposed bills designed to curtail crime (each one more restrictive or Draconian than those before) in the misguided hope of reducing crime, but in the certainty that, effective or not, it will gain votes.⁴

It is true we need the relief demanded by citizens. It is true that we need firm and stern punishment for many crimes, including life imprisonment in appropriate cases. It is true that the scourges of communities saturated with drugs must be corrected. It is true that the police alone cannot correct this destructive societal force. But it is also true that we cannot continue to ignore the "root causes" of crime, such as poverty, racism, unemployment, and poor education.

It is, therefore, with concern that the Court broaches a subject which, no matter how just and fair it may be, will be seen by some as "soft on crime." No matter how onerous its penalty, and more importantly, no matter how unjust and unequal the penalties may be for one class of criminals, unthinking citizens, frustrated and afraid, say simply, "Lock 'em all up and melt the keys."

This Court favors an omnibus of remedies which include lengthy incarceration, speedy trials, and appropriately severe sentences to deter crime. Drug trafficking must be reduced and drug treatment for addicts must be made available. The biggest single factor in the elimination of drug usage, violence, and crime is JOBS. But meaningful jobs and opportunities must be available. In plain and simple terms, we must utilize both carrot and stick to eliminate the scourge of crime.

Therefore, let this be perfectly clear. This Court does not condone crime in any form or by any class or group, and is firmly convinced that, in these times especially, punishment must be severe enough and imposed with such certainty and promptness as to deter further transgression. The Court is well aware that there are individuals who must be separated from society for lengthy periods, even life imprisonment, in order to protect society. Sadly, there are youngsters for whom deterrents must be imposed early and sternly enough to change their behavior. Our society must be protected from the random and senseless violence that is so much a part of contemporary America, especially in our inner cities where most of the victims reside.

This Court recognizes that the control of crime is the most important goal of sentencing, and a firm and certain punishment must be the major goal in criminal justice. However, such punishment must be fair; it must fit the particulars of the offense and must acknowledge characteristics of individuals.

Let it be further understood that this Court would play no role in furthering the belief that drugs are to be...