Chemist comments 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 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 [1983]). 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.