The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
Michael Stewart was sentenced on January 30, 1991 to imprisonment for 108 months based on his conviction of distribution and possession with intent to distribute crack cocaine within 1,000 feet of a school on April 30, 1990, and with aiding and abetting these crimes in violation of 21 USC §§ 812, 841 and 845. Stewart's conviction was affirmed in United States v. Stewart, et al., 952 F.2d 393 (2d Cir. 1991). He has moved to vacate his sentence. I deny the application.
Stewart's claim that an improper computation of the quantity of crack involved was made is disposed of by the Court of Appeals' summary order at 6, which states that the "district court . . . in adopting the factual findings of the Probation Department engaged in a sufficiently independent determination of the quantity of drugs involved."
Stewart also claims that trial counsel failed to provide effective assistance because of failure to move for a severance. An application for a separate trial would have been addressed to the trial court's discretion, as indicated by United States v. Torres, 901 F.2d 205, 230 (2d Cir.), cert. denied 498 U.S. 906, 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990). I would not have granted a severance in any event; consequently the "result of the proceeding" would not have been affected. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Moreover, there is no basis for assuming that a severance would have led to a more favorable ultimate outcome.
Stewart's attack on the anti-crack statute for vagueness runs counter to widespread acute awareness of the illegality of crack dealing and to recognition of the permissibility of use of such terms as "cocaine base." United States v. Jackson, 968 F.2d 158, 161 (2d Cir.), cert. denied 121 L. Ed. 2d 589, 113 S. Ct. 664 (1992).
Stewart asserts that imposing a more stringent penalty on dealers in crack than on those dealing in other controlled substances creates an invidious distinction which violates equal protection,
because, looking at the universe of illegal drug dealing, a higher proportion of African-Americans than of persons of other ethnicities was involved in distribution of crack. On the surface, taken literally and syllogistically, Stewart's argument appears to call for heightened scrutiny of the Congressional choice to impose heavier penalties on crack dealers than on other illegal drug vendors.
But Stewart's argument is delusively superficial. It takes into account only drug dealers of a particular ethnicity and not those persons who may be injured by the drug trade and by criminal activities incident thereto. Drug dealers victimize the communities in which they ply their nefarious trade. As frequently and eloquently pointed out by Percy Sutton when Borough President of Manhattan more than two decades ago, violent crimes are a concomitant of the drug trade; they manifest themselves in efforts by addicts to obtain money to pay for illegal narcotics, and in violent acts committed in the course of warfare between rival drug dealers. A high proportion of the victims of these crimes live in minority areas. Sutton stressed quite cogently, but unfortunately with limited success, that inadequate law enforcement intervention created the risk of denial of equal protection in such areas. Indeed, minority teenagers who refuse to join crack gangs may be Subjected to threats and worse.
It would be ironic indeed if efforts to provide equal protection to minority drug dealers resulted in denial of equal protection to innocent minority citizens who, unlike the dealers, have no choice about their involuntary involvement in the drug abuse scenario, and who, unlike criminal defendants vouchsafed the constitutionally critical right to counsel, often have no one to assert their rights in such contexts as this.
Congress examined problems caused by the explosion of the abuse and sale of highly addictive drugs, which occurred beginning in the late 1950s. It sought steps to curtail their harmful consequences. The reasons for the large increase in substance abuse at that time remain crucial but obscure. One possibility was that more rapidly addicting substances more readily available were developed and marketed as a perverse form of technological advance. One approach to this may yet be development of antidrug agents which can neutralize such substances; another may be greater law enforcement efforts against manifestations of criminal behavior which are concomitants of the illegal drug trafficking; a third may be aggressively to compete with the illegal drug traffic for the allegiance of vulnerable youth susceptible to its blandishments.