enacted the enhanced penalties for cocaine base offenses with the purpose of discriminating against African-Americans or any other group. Indeed, even Judge Cahill attributes only "unconscious racism" to Congress.
It may well be that, as Justice Brennan states, "Americans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." McCleskey v. Kemp, 481 U.S. 279, 332, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987) (Brennan, J. dissenting) (quoting Lawrence, The Id. The Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan L. Rev. 327 (1987)). However, the Supreme Court has not recognized that the unconscious effects of this experience can be used as a proxy for a showing of discriminatory congressional purpose. Instead, the Court has held that a discriminatory purpose "implies that [Congress] selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' adverse effects upon an identifiable group." Personnel Adm'r v. Feeney, 442 U.S. at 279. Moreover, a finding of discriminatory intent may well be precluded in this circuit because the Court of Appeals has already concluded, albeit in the context of a rational basis analysis, that "Congress had a valid reason for mandating harsher penalties for crack as opposed to powder cocaine: the greater accessibility and addictiveness of crack." United States v. Stevens, 19 F.3d 93, 97 (2d Cir. 1994).
The Eighth Amendment Claim
Jackson's Eighth Amendment argument is based on United States v. Walls, 841 F. Supp. 24 (D.D.C. 1994), in which Judge Oberdorfer held that the enhanced penalties for cocaine base offenses, as applied to two of the defendants in that case, constituted cruel and unusual punishment in violation of the Eighth Amendment.
However, controlling precedent bars a finding that a sentence of ten years, the statutory minimum, would violate the Eighth Amendment in Jackson's case. It is true that the Eighth Amendment encompasses a proportionality principle which provides some limitation on permissible disparities between the severity of crime and punishment. Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991). However, the Supreme Court has found this principle to be violated only in extreme circumstances. Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983) (life sentence without possibility of parole for crime of recidivism based on seven underlying nonviolent felonies violated the Eighth Amendment). But see Hutto v. Davis, 454 U.S. 370, 70 L. Ed. 2d 556, 102 S. Ct. 703 (1982) (40 year prison sentence for possession with intent to distribute nine ounces of marijuana was not unconstitutionally disproportionate); Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (mandatory life sentence without possibility of parole for possession of 672 grams of cocaine was not unconstitutionally disproportionate).
Jackson has pleaded guilty to possession with intent to distribute approximately 300 grams of cocaine base. As explained below, Jackson faces a 10 years prison sentence for this crime. The Supreme Court decisions strongly suggest that this penalty is not unconstitutionally disproportionate to Jackson's offense. If a 40-year prison sentence for possession with intent to distribute nine ounces of marijuana does not violate the Eighth Amendment, it is clear that a 10 year sentence in this case does not.
Moreover, the facts of Jackson's case are not comparable to those of the defendants in Walls. The Walls defendants were drug "addicts feeding their habit" and were employed by the other defendants for minimal compensation to convert powder cocaine to crack. 841 F. Supp. at 32. They were mere "bit players in the conspiracy" to distribute 538 grams of crack cocaine, but faced mandatory minimum sentences of 10 and 20 years respectively. Id.
Jackson's role here was not peripheral. Jackson and co-defendant Frank Culmer were arrested when the police discovered "a brown paper bag containing 125 grams of a substance the government described as cocaine and 300 grams of a substance which was identified by the government as cocaine base or 'crack'" in the car in which they were passengers. United States v. Jackson, 768 F. Supp. at 98. Jackson subsequently "told the police he had agreed to help Culmer complete a drug transaction by standing at a distance and posing as a potential customer in exchange for money." Id. Moreover, Jackson's prior record is more severe than that of the Walls defendants.
Finally, an Eighth Amendment challenge to the cocaine base penalties has recently been rejected by the Court of Appeals without comment. United States v. Stevens, 19 F.3d at 97 (168 month term of imprisonment for conspiring to distribute and possess with intent to distribute between 500 grams and 1.5 kilograms of cocaine base did not violate Eighth Amendment).
For these reasons, Jackson's Eighth Amendment claim is denied.
The New Definition of Cocaine Base under the Sentencing Guidelines
On April 29, 1993, the Sentencing Commission submitted to Congress the following amendment to the commentary to section 2D1.1(c):
"Cocaine base," for the purposes of this guideline, means "crack." "Crack" is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form."
58 Fed. Reg. 27,156 (1993). The Commission's commentary to the amendment states that it "addresses an inter-circuit conflict" and rejects the Second Circuit's chemical definition of cocaine base specified in United States v. Jackson, 968 F.2d 158 (2d Cir. 1992) (cocaine base is CHNO), in favor of the Ninth Circuit's narrower definition, United States v. Shaw, 936 F.2d 412 (9th Cir. 1991) (cocaine base means crack). Shaw defines crack as follows:
The term "crack" generally refers to 'very pure cocaine intended for smoking rather than inhalation.' New Dictionary of American Slang 85 (R. Chapman ed. 1986). It is synonymous with "rock" cocaine. Id. at 361 (defining "rock" as "[a] small cube of very pure cocaine, intended for smoking rather than inhalation").