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U.S. Court of Appeals Upholds Crack Offender's Sentence


January 1997

On December 13, 1996, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled 3-0 that federal judges cannot give convicted crack dealers the far more lenient sentences that powdered cocaine offenders receive, despite the chemical similarities between the two (U.S. v. Berger, 1996WL714394, (9 Cir. December 13, 1996); Reynolds Holding, "Crack Case Penalties Are Upheld," San Francisco Chronicle, December 14, 1996, p. A3).

In 1986, Congress enacted the mandatory sentences in which distribution of 5 grams of crack carries the same penalty as distribution of 500 grams of powdered cocaine. Congress believed that crack cocaine caused more violence and addiction than powdered cocaine.

The case involved the appeal of a 30-year sentence by James Berger, convicted in Los Angeles of selling and possessing crack. Berger argued that federal law specifying different sentences for crack and powdered cocaine is ambiguous because the two substances are chemically identical. A study appearing in the November 20, 1996 Journal of the American Medical Association supports Berger's contention, saying that little difference exists between the effects of the two forms of cocaine (Dorothy K. Hatsukami, PhD, and Marian W. Fischman, PhD, "Crack Cocaine and Cocaine Hydrochloride: Are the Differences Myth or Reality?" Journal of the American Medical Association, November 20, 1996, Vol. 276, No. 19, p. 1580; "Cocaine Sentencing Disparity Should Be Reduced, According to JAMA," NewsBriefs, December 1996). However, the Court of Appeals said judges lack the power to set aside the federal guidelines. Judge Robert Boochever wrote for the court: "The widely disparate penalties for cocaine and cocaine base may be unfair, [but] district courts have no legal authority to depart downward for that reason."

Berger also asked the court to consider the possibility of racial bias in sentencing for crack offenses, because most offenders jailed for crack are African-American. Civil rights groups have made a case that crack and powder cocaine sentencing is racially discriminatory. The Supreme Court in May 1996 said that in order to force the Justice Department to disclose the race of defendants they prosecute in a district, a defendant must show that whites committing the same crimes get lighter treatment (U.S. v. Armstrong, No. 95-157, --U.S.--, 116 S.Ct. 1480, 1996WL241682, 59 CrL 2089, (May 13, 1996); "Allegations of Race Bias in Crack Prosecutions Requires More Proof, Supreme Court Rules," NewsBriefs, Summer 1996). Berger's racial allegation was rejected by the 9th Circuit Court of Appeals for a similar reason. According to the Court of Appeals, Berger had not presented evidence that people of other races in his position "could have been prosecuted but were not."