Supreme Court Tips the Scales on Crack Cocaine

(CN) - A "cocaine base," as mentioned in sentencing guidelines for drug offenses, encompasses all types of cocaine in their chemically basic form, as well as crack cocaine, the Supreme Court ruled Thursday.

The combination of coca leaves and other ingredients produces "coca paste," cocaine in its base form that can be smoked, and that paste can be turned into the salt form with the addition of water and hydrochloric acid.

This powder is not a base, and it can be snorted, or converted into crack with the addition of baking soda and water, or made into "freebase" when dissolved in ammonia and water.

"Chemically, therefore, there is no difference between the cocaine in coca paste, crack cocaine, and freebase - all are cocaine in its base form," according to the lead opinion authored by Justice Sonia Sotomayor. "On the other hand, cocaine in its base form and in its salt form (i.e., cocaine hydrochloride) are chemically different, though they have the same active ingredient and produce the same physiological and psychotropic effects."

Frantz DePierre was arrested in 2005 for 55.1 grams of drugs to a government informant, and the court determined that the drugs were cocaine base.

Since crimes involving 50 grams or more of cocaine-based drugs carry minimum 10-year sentences, the jury imposed that sentence on DePierre. In his unsuccessful appeal to the 1st Circuit, DePierre argued that the minimum sentence applies only to crimes involving crack, and that the drugs he sold could not be properly established as crack since it had the same ingredients as other forms of cocaine base.

The high court justices affirmed the decision Thursday in an 18-page opinion that parses the confusing and seemingly redundant governing statutes.

"Given crack cocaine's sudden emergence and the similarities it shared with other forms of cocaine, this lack of clarity is understandable, as is Congress' desire to adopt a statutory term that would encompass all forms. Congress faced what it perceived to be a new threat of massive scope," Sototmayor wrote. "Accordingly, Congress chose statutory language broad enough to meet that threat. ... In the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties, we cannot adopt DePierre's narrow construction."

Justice Antonin Scalia joined in the first two sections of Sotomayor's opinion, but he did not join in the section containing the aforementioned quotation.

In a concurring opinion, Scalia complained that the third section of the majority opinion "needlessly contradicts DePierre's version of legislative history."

"Our holding today is that the statutory term 'cocaine base' refers to cocaine base, rather than, as DePierre contends, one particular type of cocaine base," Scalia wrote. "This holding is in my view obvious, and the Court does not disagree. It begins its discussion of the legislative history by saying that DePierre's position 'is not supported by the statutory text,' and ends the discussion by saying that "[i]n the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties, we cannot adopt DePierre's narrow construction.'

"Everything in-between could and should have been omitted," Scalia continued.

This "needless detour into legislative history" can have unintended consequences, according to the two-paragraph opinion.

"It conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this," Scalia wrote. "In fact, however, even a hypothetical House Report expressing the Committee's misunderstanding (or perhaps just the Committee staff's misunderstanding, who knows?) that 'cocaine base means crack cocaine' could not have changed the outcome of today's opinion." (Parentheses and emphasis in original.)

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