cocaine at 500 grams.87 Courts have rejected this argument after applying rational basis analysis,
holding that, despite the Sentencing Commission's proposals to reduce the sentencing differential
in amount, racially neutral justifications for the sentencing scheme exist sufficient to find the
differential constitutional.88
In addition, at least one defendant has argued that courts should apply intermediate scrutiny
to the sentencing differential because of proposals by federal officials that have advocated its
elimination or reduction. The court in this case refused consider crack and powder cocaine as quasi-
suspect classifications, and did not applied intermediate scrutiny.89
At least one district court has ruled that the sentencing differential violated the Equal
Protection Clause, relying on the "unconscious racism" of Congress.9° The Eighth Circuit rejected
the district court's ruling, holding that no evidence of purposeful discrimination by Congress
existed.91
However, despite the fact that circuit courts have upheld harsher penalties for crack offenses,
some do so reluctantly. Appellate judges have criticized the rationality of the sentencing differential
for its disproportionate impact on minorities, especially in light of proposals to reduce or amend it.92
87
United States v. Teague,
93 F.3d 81, 85 (2nd Cir. 1996),
cert. denied,
117 S. Ct. 708 (1997);
United
States v. Washington,
127 F.3d 510, 516-17 (6th Cir. 1997);
United States v. Jackson,
84 F.3d 1154, 1161(9th Cir.
1996),
cert. denied,
117 S. Ct. 445
(1996).
88
Jackson,
84 F.3d at 1161 ("we do not agree that the Commission's report, of Congress's decision to reject
it, affects the precedential value of our ruling that Congress had a rational basis for the 100:1 ratio");
see also Singleterry,
29 F.3d at 741;
Moore, 54
F.3d at 98;
Frazier,
981 F.2d at 95;
Un ited States v. Burgos,
94 F.3d 849, 877(4th Cu.
1995),
cert. denied,
117 5. Ct. 1087 (1997);
United States v. Fisher,
58 F.2d 96, 100-01 (4th Cir.
1995), cert. denied,
116 S.
Ct.
329
(1995); Un ited States v. Fonts,
95 F.3d 372,
375 (5th
Cir. 1996);
Washington,
127 F.3d at 516-17;
Un ited States
v. Reddrick,
90 F.3d 1276, 1282 (7th Cir. 1996);
Un ited States v. Clary,
34 F.3d 709, 713 (8th Cir.
1995), cert. denied,
15 S. Ct. 1172
(1995); Un ited States v. Willis,
967 F.2d 1220, 1225 (8th Cir. 1992); Johnson, 40 F.3d at 440-41;
United
States v. Robinson, 978 F.2d
1554,
1565 (10th Cir. 1992),
cert. denied,
113 5. Ct. 2938 (1993);
Hanna, 153
F.3d at
1289.
See United States v. Coleman,
166 F.3d 428, 430 (2nd Cir. 1999),
cert. denied,
119 S. Ct. 1794 (1999).
°
See United States v. Clary,
846 F. Supp. 768, 778-82 (E.D. Mo. 1994).
'
See Clary,
34 F.3d at 713.
92
See United States v. Eirby,
262 F.3d 31, 41(1st Cir. 2001) (noting "severity" of crack penalties);
Singleterry,
29 F.3d at 741 (defendant, although without a valid constitutional claim, properly questions fairness of
cocaine sentencing);
Washington,
127 F.3d at
5
18-19 (Jones, J., concurring) (Sentencing Commission's conclusion
to eliminate the 100:1 differential should be given "controlling weight" under administrative law principles);
Reddrick,
90 F.3d at 1283 (Cudahy, J., concurring) (extraordinary impact of 100:1 sentencing ratio requires
additional examination and has been questioned by at least two other circuit court judges);
Willis,
967 F.2d at 1226-
27 (Heaney, J., concurring) (Congress lacked a rational basis to create a such a harsh distinction in sentencing
between
crack and powder cocaine); William Spade, Jr.,
Beyond the 100:1 Ratio: Towards a Rational Cocaine
Sentencing Policy,
38 ARiz. L. REv. 1233, 1279-84.
15