WASHINGTON — For years, a federal statute imposed a minimum penalty that was 100 times higher for offenses involving “cocaine base” than for powder cocaine offenses. Though that law has been changed to reduce the disparity, the U.S. Supreme Court is now considering if a cocaine substance that was neither powder cocaine nor crack could qualify for the tougher minimum sentence.
The defendant in DePierre v. U.S., Franz DePierre, was charged with selling drugs to an undercover police informant who was seeking crack cocaine. Although the chunky, off-white substance sold was found to contain cocaine, it did not contain sodium bicarbonate, which is used to make crack cocaine.
DePierre was tried, convicted and sentenced to a then-applicable 10-year minimum sentence. He appealed, arguing that the 10-year minimum was meant for crack cocaine offenses, and that the substance he was convicted for was not crack.
The 1st Circuit affirmed, reasoning that “cocaine base” included, but was not limited to, crack. The Supreme Court granted certiorari.
You say ‘poodle dog,’ I say ‘extra precise’
Nicole A. Saharsky, assistant to the solicitor general, argued that “cocaine base” applied to any cocaine substance that was basic in nature, as opposed to processed powder cocaine which, chemically, is a salt.
“Whether you call it freebase, coca paste or crack, it’s the same thing chemically,” Saharsky said. “It is cocaine base, it is smokable and it has the same effect on the user.”
But Justice Elena Kagan asked if the wording “cocaine base” would make sense in that case, because cocaine in itself is basic and would render the phrase redundant.
“It’s like referring to an apple by saying ‘apple fruit’ or referring to a poodle by saying ‘poodle dog,’” Kagan said. “It’s a strange way to speak about it.”
“It’s an extra clear, extra precise way to speak about it,” Saharsky said, saying that statutes are often redundant where Congress means to specifically identify a particular subject.
Justice Stephen Breyer said it was clear that the higher penalty was not meant to cover powder cocaine, which is not a base.
“People can sniff it, because it’s a salt, and that’s bad,” Breyer said. “But then there is a kind that’s worse, and that’s freebase or crack, and that is not a salt, and it isn’t a poodle and it isn’t an acid. … [So] what if we said ‘cocaine base’ means cocaine … after it has been processed beyond the stage of coca paste?”
Kagan had another idea.
“Suppose we just said it needs the right chemical definition, and it’s rock-like, crystalline, whatever you want to call it,” she said. “It’s not a paste. It’s not a leaf. It’s a rock.”
Justice Antonin Scalia chimed in to help Saharsky out.
“We’re not supposed to be writing a statute, we’re supposed to be interpreting one!” Scalia exclaimed. “And there is no way to get that out of these words. No way. Absolutely no way! Is there?”
“That’s exactly how I should have started, Your Honor,” Saharsky said.
A decision is expected later this term.