United States V. Clary: Equal Protection and the Crack Statute
Total Page：16
File Type：pdf, Size：1020Kb
NOTE UNITED STATES v. CLARY EQUAL PROTECTION AND THE CRACK STATUTE JASON A. GILLMER* TABLE OF CONTENTS Introduction .................................... 499 I. Background ................................ 504 A. The Equal Protection Clause and Suspect Classifications ............................ 504 B. Proof of Racial Discrimination ................ 506 II. Enactment of the Crack Statute .................. 508 III. United States v. Clary ............................ 512 A. District Court Decision ..................... 513 B. Eighth Circuit Decision ..................... 516 IV. Unconscious Racism .......................... 518 A. Unconscious Racism Explained ............... 518 B. Unconscious Racism and Equal Protection ....... 520 1. Justification for the suspect classification doctrine .............................. 521 2. Cultural meaning test .................... 523 C. Unconscious Racism and the Crack Statute ...... 526 1. History of associating crime with race ........ 527 a. Colonial and antebellum periods ......... 527 b. Black codes and involuntary servitude ..... 536 c. Conclusions ........................ 539 * Note& Comment Editor, TheAmerican UniversityLawReview, Volume 45;J.D. Candidate, May 1996, American University, Washington College of Law; BA, 1992, Carleton College. I wish to thank DeanJamin Raskin, ProfessorJames May, and Professor Charles Lawrence for reading and commenting on earlier drafts. 497 498 THE AMERICAN UNERSTRY LAW REVIEW [Vol. 44:101 2. History of attaching racial significance to certain drugs ........................... 540 3. Widespread public association of crack cocaine with race ........................ 543 V. Equal Protection and the Crack Statute ............. 549 A. Proof of Racial Discrimination ................ 549 1. Unconscious racism ...................... 550 2. Departures from normal procedure sequence 552 3. Inevitability or foreseeability of the consequences of the law .................. 554 4. Adverse racial impact ..................... 554 5. Racial discrimination established ........... 557 B. Level of Judicial Scrutiny .................... 557 1. Compelling government interest ........... 558 2. Necessary means? ........................ 564 Conclusion ....................................... 564 The War on Drugs is not the first battle in which zealous warriors, frustrated by the limits of the law, have called for the abridgement or abolition of fundamental civil liberties. We have seen other wars and other constitutional casualties ....And when the war is over, we find that departures from constitutional norms, legitimized by the courts, have lasting and wide-ranging effects. Constitutional principles, once abandoned, are not easily re- claimed.' INTRODUCTION Former President Ronald Reagan declared war on drugs in 1982.2 His successors, George Bush and Bill Clinton, both swore to continue the fight.' The federal government has since spent billions of dollars waging this war,4 allocating most of the money for enforcement.5 1. Hartness v. Bush, 919 F.2d 170, 175 (D.C. Cir. 1990) (Edwards, J., dissenting) (discussing constitutional validity of random drug testing), cert. denied, 501 U.S. 1251 (1991). 2. john a. powell & Eileen B. Hershenov, Hostage to the Drug War The NationalPurse, the Constitution and the Black Community, 24 U.C. DAVIS L. REV. 557, 557 (1991) (citing President Reagan's Radio Address to the Nation, 18 WEEKLY COMP. PRs. Doc. 1249, 1249 (Oct. 2, 1982)); see alsoAlfred W. McCoy & Alan A. Block, U.S. Narcotics Policy: An Anatomy of Failure in WAR ON DRUGS: STUDIES IN THE FAILURE OF U.S. NARCOTICS POLICY 1 (Alfred W. McCoy & Alan A. Block eds., 1992) (claiming that drug war is really war on cocaine). 3. See Paul Finkelman, The Second Casualty of War Civil Liberties and the War on Drugs, 66 S. CAL. L. REV. 1389, 1391 (1993) (noting how President Clinton "articulated his opposition to any fundamental change in American policy toward drugs"); powell & Hershenov, supra note 2, at 557 (discussing former President Bush's promise to fight drug war). 4. See OFFICE OF NAT'L DRUG CONTROL POLICY, NATIONAL DRUG CONTROL STRATEGY: BUDGET SUMMARY 2 (1994) (stating that federal anti-drug spending soared from $1.5 billion in 19951 UNITED STATES V. CLARY Although record numbers of drug offenders are being locked up in our prisons,6 statistics indicate that drug use and drug dealing remain constant.' While some observers question whether the war on drugs is working,' one conclusion is inescapable: the principal victims of the war on drugs are racial minorities and the Constitution itself.9 1981 to just under $12 billion in 1992, and that President Clinton requested record $13.2 billion for 1995); Sam Vincent Meddis, Is the Drug War Racist? DisparitiesSuggest the Answer is Yes, USA TODAY, July 23, 1993, at Al (noting that federal anti-drug spending went from approximately $1.2 billion in 1981 to nearly $12 billion in 1992). 5. Seepowell & Hershenov, supra note 2, at 567 n.26 (explaining that National Association of Criminal Defense Lawyers (NACDL) estimates that Bush administration allocated three- fourths of drug budget for law enforcement and remaining one-fourth for treatment) (citing NACDL, The Black Community and the Cost of the "Waron Drugs," CHAMPION, Nov. 1990, at 18,19). The Clinton administration has set aside 35% of the drug budget for treatment and prevention in 1995, with the rest going toward law enforcement. OFFICE OF NAT'L DRUG CONTROL POLICY, REDUCING THE IMPACT OF DRUGS ON AMERICAN SOCIETY 12 (1995). 6. See United States v. Clary, 846 F. Supp. 768, 786 n.62 (E.D. Mo.) (noting that, as ofJuly 1993, 60.4% of inmates in federal prisons were convicted of drug-related offenses, up from 24.9% in 1980), rev'd 34 F.3d 709 (8th Cir. 1994), cert. denied, 115 S. Ct. 1172 (1995); OFFICE OF NAT'L DRUG CONTROL POLICY, supra note 5, at 12 (illustrating that during 1992, approximate- ly 48,000 of 80,000 federal prisoners were drug offenders); Pierre Thomas, 1 in 3 Young Black Men injustice System: CriminalSentendng Policies Cited in Study, WASH. POST, Oct. 5, 1995, atA1, A4 (noting that estimated number of drug inmates jumped from 57,975 in 1983 to 353,564 in 1993); see also Finkelman, supra note 3, at 1396 (stating that United States has larger percentage of its population in prison than any other nation). 7. See McCoy & Block, supranote 2, at 2-3 (reporting that daily cocaine use by "hard core addicts" increased 15% between 1988 and 1990). The National Institute on DrugAbuse (NIDA) estimated that the number of daily cocaine users jumped from 292,000 in 1988 to 336,000 in 1990. Id. at 3 (citing Joseph B. Treaster, Bush Hails Drug Use Decline in a Survey Some See as F1awed, N.Y. TIMES, Dec. 20, 1990, at B14). Furthermore, in 1991, the General Accounting Office reported that "the estimated volume of drugs entering the country during 1989 and 1990 did not decline." Id. 8. See McCoy & Block, supra note 2, at 2 (claiming that, despite White House claims to contrary, mounting evidence suggests drug war and its underlying policy of repression have failed); powell & Hershenov, supranote 2, at 614-15 (arguing that war on drugs is more than just ineffective, it has severe constitutional costs and hurts opportunities for blacks). Several commentators have also criticized the use of mandatory minimum sentences for drug offenses as either unwise or unfair to racial minorities. See Nancy E. Roman, Mandatory Drug Senten.es Lead to Inequities; Rules Force Jails to Free Violent Felons, WASH. TIMES, Aug. 24, 1994, at A8 (questioning mandatory minimum prison terms for drug offenders because they keep low-level drug offenders in jail, forcing parole boards to release violent criminals instead); id. (noting that Representative E. Clay Shaw, Jr., an advocate for mandatory minimums in 1986, now calls for Congress to reconsider them, stating that politicians have to correct mistakes they make). Shaw noted that "[i]n politics as everything else, people have to take a look at what they did, and if they think they made a mistake, correct it." Id.; see also Mandatory Sentencing is Criticized by Justice, N.Y. TIMES, Mar. 10, 1994, at A22 (quoting Justice Kennedy's statement to subcommittee of House of Representatives on problems of mandatory minimums for drug crimes). Justice Kennedy stated that "I simply do not see how Congress can be satisfied with the results of the mandatory minimums for possession of crack cocaine." HearingsBefore the Subcomm. of the House Comm on Appropriations, 103d Cong., 2d Sess. 29 (1994) (statement ofJustice Kennedy). 9. powell & Hershenov, supra note 2, at 559; see also Ron Harris, Blacks Take Brunt of War on Drugs, LA. TIMES, Apr. 22, 1990, at Al (commenting that "around the country, politicians, public officials and even many police officers and judges say, the nation's war on drugs has in effect become a war on black people"); Sheryl McCarthy, Off Target Targets of Drug War, N.Y. NEWSDAY, Oct. 22, 1990, at 6 (reporting that "as the so-called 'war on drugs' escalates, it is becoming increasingly clear that the targets of choice in this crusade are overwhelmingly blacks and Latinos"). THE AMERICAN UNIVERsnY LAW REVIEW [Vol. 45:497 Cocaine base, otherwise known as "crack cocaine" or "crack," caused a scare in the mid-1980s as many commentators warned of the growing availability and use of this "cheap, highly addictive, and deadly form of cocaine.""° The media sparked this concern, declar- ing the outbreak of a national "crack epidemic."" One journalist wrote that because