Opinion analysis: Court refuses to limit heightened sentences for ‘cocaine base’ to crack cocaine

By James Bickford
on Jun 13, 2011 at 8:11 am

On Thursday in DePierre v. United States, the Court held that minimum sentences for “cocaine base” apply to all crimes involving cocaine in its chemically basic form.  DePierre had originally argued that the elevated penalties applied only to offenses involving crack cocaine, but the dispute was less about what substances trigger the heightened minimum than what findings a jury must make.  As I discussed in my recap of the oral argument, DePierre proposed a three-part definition of “cocaine base,” while the government argued for the simple chemical definition that the Court ultimately adopted.  The parties agreed at oral argument that “cocaine base” included both crack and freebase, which are smokeable drugs produced from powder cocaine through different chemical processes, but they parted ways on whether coca paste (the chemically basic intermediate between coca leaves and all processed forms of cocaine) was also “cocaine base.”  The Court held that it was.

The Court’s nearly unanimous opinion, written by Justice Sotomayor, began by getting its chemistry straight.  Cocaine is an alkaloid derived from coca leaves, and alkaloids are bases.  So cocaine is a base.  Coca leaves can be processed into coca paste, which contains cocaine.  Coca paste can either be dried and smoked or further processed into powder cocaine.  Powder cocaine is cocaine hydrochloride, a salt (salts are chemically distinct from bases) that can be breathed in through the nose but cannot be smoked; it can be processed into crack or freebase.  Both are smokeable bases.  “[S]moking cocaine in its base form—whether as coca paste, freebase, or crack cocaine—allows the body to absorb the ingredient more quickly, thereby producing a shorter, more intense high” than one can obtain by snorting powder cocaine.

The Court reviewed the history of the mandatory minimum federal sentences, first adopted in 1986, and the jury instructions at DePierre’s trial, which asked the jury to determine only whether his offense involved a certain quantity of “cocaine base.”  It then turned to the statute, which distinguishes between offenses involving “coca leaves” or “cocaine [and] its salts” and those involving “a mixture or substance… which contains cocaine base,” singling out the latter for heightened penalties.  The Court conceded that using “cocaine base” to denote cocaine (which is a base) is “technically redundant,” but it explained that when the statute was drafted “the word ‘cocaine’ was commonly used to refer to cocaine hydrochloride, i.e., powder cocaine.”  Moreover, some use the word “to refer to all cocaine-related substances, including powder cocaine,” so Congress had good reason to employ an odd formulation.

Congress chose an awkward statutory structure as well, subjecting offenses involving “cocaine [and] its salts” to lower penalties and those involving “cocaine base” to higher ones, even though cocaine is a base.  The Court noted that the earlier statutory reference to cocaine serves both a linguistic and a structural purpose: it provides a subject for “its salts” to modify and helps to define the larger set of substances which could include “cocaine base.”  (The statute places “cocaine [and] its salts” in one clause along with several other substances and then in a second clause applies the higher penalty to “a mixture or substance [described in the first clause] which contains cocaine base.”)  The Court suggested that this “inartful legislative drafting” could be explained by the borrowing of several definitions from another part of the statute.

The Court concluded by disposing of DePierre’s counterarguments.  He argued that Congress was exclusively concerned with crack cocaine; the Court noted “the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties.”  DePierre argued that unprocessed coca leaves contain chemically basic cocaine and therefore would be subject to the higher mandatory minimum sentences—an absurd result, in his eyes.  The Court responded that the chemistry was a matter of dispute—the government had said that it could not demonstrate that coca leaves contain basic cocaine—and that there was a strong statutory argument that, even if the leaves do contain basic cocaine, offenses involving them would only be subject to the lighter mandatory minimum.  DePierre argued that because the Sentencing Commission has interpreted “cocaine base” to mean “crack,” the Court should do so too.  The Court responded that the Sentencing Commission had not purported to interpret the statute, and it explained that some disparities were inevitable given the different structures of the Sentencing Guidelines and the statutory minimums.  Finally, the Court rejected DePierre’s invocation of the rule of lenity, which “is reserved for cases where after seizing everything from which aid can be derived, the Court is left with an ambiguous statute.”

Justice Scalia wrote separately to explain his decision not to join the portion of the opinion that rebutted DePierre’s argument from legislative history.