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.
One of the approaches Congress has chosen up to the present is to impose stricter penalties on more technologically advanced addictive substances - in this instance crack cocaine - which "hook" the victims more rapidly and can be more cheaply distributed on a large scale.
Even if Congress' choice were to have a disparate adverse impact on some illegal drug dealers which was otherwise cognizable under equal protection concepts; a legislative body may choose between opposing demands for equality of protection - especially of unequal weight - without violating the constitutional equal protection requirement.
Stewart's argument would exalt the right of drug dealers to avoid disparate impact over that of the victims of drug-related crime to equal protection of the laws to reduce their risks of being the objects of murder, robbery, burglary, theft and other crimes.
Stewart's contention was rejected by the Second Circuit in United States v. Haynes, 985 F.2d 65 (2d Cir. 1993):
. . . enhanced penalties for crack reflect a rational and specific congressional aim of deterring drug transactions involving crack. The purpose is obvious - crack cocaine is the most addictive and destructive form of cocaine and because it is also cheaper it is more widely available and has had therefore a corresponding increase in usage.