The opinion of the court was delivered by: MORRIS E. LASKER
Frank Jackson is present for resentencing pursuant to the remand instructions of the Court of Appeals in United States v. Jackson, 968 F.2d 158 (2d Cir.), cert. denied, U.S. , 113 S. Ct. 664 (1992), which vacated this court's decision that the enhanced penalty provisions for cocaine base offenses of 21 U.S.C. § 841(b) and United States Sentencing Guidelines § 2D1.1 are unconstitutionally vague, United States v. Jackson, 768 F. Supp. 97 (S.D.N.Y. 1991). Jackson presents a number of new arguments why, despite the Court of Appeals' ruling, the enhanced penalty provisions should not apply to his case.
The Equal Protection Claim
Jackson's equal protection argument is based on the recent decision in United States v. Clary, 846 F. Supp. 768 (E.D. Mo. 1994), in which Judge Cahill held that the enhanced penalties for cocaine base offenses violate the equal protection clause because "the actions of Congress [in enacting the enhanced penalties] were influenced and motivated by unconscious racism," id. at 797.
The government argues that Jackson's equal protection argument fails because he has not established a discriminatory congressional motive in enacting the enhanced penalty scheme and that, in any event, Jackson has waived this claim because he failed to raise it at his original sentencing.
The government cites no authority for its waiver argument and I conclude that a defendant facing resentencing is not precluded from presenting new arguments to the sentencing court. United States v. Clary, 846 F. Supp. 768 (E.D. Mo. 1994), on which Jackson bases his equal protection claim, had not been decided at the time of the original sentencing.
Nevertheless, I regretfully find that Jackson's equal protection argument, based as it is on a claim of deliberate Congressional race discrimination, to be without evidentiary support. The grossly disparate impact of the enhanced penalties for cocaine base offenses on African-Americans is well-documented and not disputed. Nor is there a question that a large part of the judiciary and informed public is, in my opinion, properly dismayed by this result. As Justice Kennedy recently stated to a subcommittee of the House of Representatives, "I simply do not see how Congress can be satisfied with the results of mandatory minimums for possession of crack cocaine." N.Y. Times, March 10, 1994, at A22.
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 ...