on crack cocaine
By Rod Campbell, PhD, prisoner of the drug war
The "War on the Drug War" needs to be fought on
many levels. So far, the criticism preached most frequently is
some variation on the theme of the drug laws' heavy handedness.
This approach alone, however, still leaves drug war opponents
as apologists for "wrong deeds" done.
I suggest, however, that many of the evil war's most vicious
tools - the crack laws, the methamphetamine re-scheduling, the
21 U.S.C., § 851 enhancement applied to State prior drug
convictions, the aggregation of drug quantities to define the
object of a drug conspiracy, the imposition of enhancements outside
the legal fiction limits to drug conspiracy sentencing - are
dishonest and perhaps criminal in some respects. The uncritical
trust Americans have given to anti-drug demagoguery in Congress
has produced a default to purely police-subscribed interests.
This should not come as any surprise as the following testimony
from 1970 tells us: "First, there can be no doubt that the
Justice Department in S. 30 and in H.R. 1858 and its precursors
has shown little sensitivity either toward modern concepts of
penology and rehabilitation. Whatever House of Representatives
bill is passed [as the Controlled Substance Act] may be expected
to be enforced by a department affected by these predilection
reflected in its original recommendations. Therefore, it is necessary
for Congress to speak clearly and unambiguously in opposition
to preemptory sentencing practices if such are to be avoided."
H.R. Report 91-1444, Committee on Interstate and Foreign Commerce,
91st Cong., 2d Sess., September 10, 1970, Additional views.
In my view we can now offer all interested persons new tools
to bring down the most nefarious portion of the Narcotics Penalty
Act of 1986: the crack cocaine penalty statute. Because the formal
arguments are highly legalistic and exhaustive in its treatment,
it is provided in whole on the following website for downloading,
or by sending a request to DrRodCampbell@AOL.com.
The central elements of the arguments follow.
By the applicable definitions controlling the Controlled Substance
Act, which are to be strictly applied, substances must be treated
as "whole drugs." (United States v. Generix Drug Corp.,
75 L Ed. 2d 198 ). Under the definitions, crack cocaine/street,
cocaine free base are legally "new drug substances."
21 U.S.C. § 321(p). They are not legally adoptable as mixtures
containing scheduled cocaine; they are new drugs that contain
cocaine. HR-91-1444, p.34: Scheduling Criterion 4: a drug within
a different drug is only one factor to be considered whether
the new drug should be scheduled. Crack cocaine should have been
scheduled in its own right.
Congress knew this in 1986. All five of the bills proposed that
year made scheduling of crack in Schedule I their first order
of business. No bill sought to re-schedule the "crack form
of cocaine" from schedule II to schedule I. In fact, the
Justice Department had just given Congress its legal opinion
in June 2000 that coca tea had to be scheduled because the "coca
leaves" named in Schedule II were not coca tea. If simply
chopping up coca leaves required a new scheduling in June, it
would be unexplainable that doing outright chemistry on cocaine
hydrochloride did not in September.
Yet that is exactly what the permanent-sitting representative
of the Justice Department apparently told the Judiciary Committee.
Scheduling was stricken. The reason for this lapse of integrity
is transparent: several thousand people had already been prosecuted
for crack as "cocaine." Scheduling crack now would
reveal that those people had been prosecuted for a non-controlled
substance [United States v. Caudle, 828 F2d (defendants could
not be indicted if the drug was an uncontrolled substance).]
All the convictions and sentences accomplished would have to
be reversed! So a cover-up was born that has been perpetuated
to this day.
There is, of course, much more to the argument. But from these
facts alone, Congress should be made to admit the error. It is
the responsibility of the Courts to reduce a moral imperative
like this to a legal imperative for action. The fact that the
Courts have not done so is one proof that, as an institution,
they stand for what the people in power want and not what impartial
justice demands. Read the argument; it owes no court any apology.
A second argument is made that the crack sentencing statutes
are constitutionally void for vagueness. It goes like this:
The language of statutory Schedule II for cocaine is identical,
word for word, to the language of penalty clause 21 U.S.C. §
841(b)(i)(A)(ii). The Government claims that crack cocaine is
included in the scope of statutory Schedule II cocaine. If so,
then it must be included within the scope § 841(b)(i)(A)(ii).
If crack cocaine is legally in two different subclauses [(ii)
and (iii)], a criminal court sentencing the defendant must use
the less harsh statue.
Again, the full argument is syllogistic and exhaustive. I claim
that neither of these arguments is defeatable on merits. I keep
an open mind, though, and welcome any dialog whether for or against.
Everyone's participation can only make the case more persuasive,
both legally and morally. Where the arguments have been presented
thus far they have only received apples for oranges answers from
the Government and citation to vacuous authority (e.g., United
States v. Sloan, 97 F3d) from the Courts. Such is the hallmark
of might making right.
If my wordsmithing is sound, it is only because of the people
who have thought, fought, researched, and encouraged the perseverance
necessary. There is James Bryant who first saw through the semantic
fallacy of cocaine-word double speak. It was his persistent research,
for example, that obtained copies of the five bills. Mark Young
became my doppelganger in draftsmanship. When my words did not
convey the meaning, he had the alternatives that did. No person
has a firmer appreciation that legal writing is much more than
the first words on the paper. Not all of us can write or research.
This matters little, but when everyone supports those who can,
and organizations like November Coalition exist that provide
the venue to educate the public, change can occur.