Seventh Circuit Week in Review: More on the Elusive Meaning of “Crack”

With just two new opinions, there was not much criminal action in the Seventh Circuit last week.  One of the two, United States v. Dunson (No. 08-1691), was a very brief per curiam holding that the Indiana crime of fleeing a police officer in a vehicle is a “crime of violence” for purposes of applying § 2K2.1(a)(2) of the Federal Sentencing Guidelines.

The second, and much meatier, opinion was United States v. Bryant (No. 07-3608), in which the court (per Judge Ripple) affirmed the defendant’s conviction for drug trafficking, but nonetheless remanded for resentencing.  A central issue in the case was whether the defendant was dealing crack cocaine, as opposed to some other form of cocaine that would result in a lesser sentence under the Federal Sentencing Guidelnes.  Coincidentally, the court dealt with the same issue the previous week in United States v. Stephenson, which I blogged about here.  In both cases, the court underscored that “crack” is not defined by some particular chemical composition, but by the understanding of drug users and sellers — in a sense, “crack” is what the market calls “crack.” 

Bryant is interesting for the way that it shines a light on the fallibility of crime labs. 

The defendant dealt a substance that was separately tested by two Drug Enforcement Agency chemists.  One found the substance to be a powder containing no residue of baking soda, while the second found the substance to be rock-like with baking soda residue (both characteristics being associated with crack).  After discovering that he had “mishandled evidence on several occasions,” the government chose not to use the report of the second chemist.  Nonetheless, based largely on the testimony of the person who acquired the substance from Bryant, the sentencing judge found by a preponderance of the evidence that the substance was “crack.”  In affirming, the Seventh Circuit emphasized that no particular physical or chemical attribute (e.g., the presence of baking soda residue) is dispositive on the crack question.  In effect, a witness’s testimony that he purchased something called “crack” from Bryant outweighed the contrary indications contained in the first chemist’s report.

Although not disturbing this aspect of the sentencing judge’s Guidelines calculation, the Seventh Circuit nonetheless remanded under Kimbrough v. United States, 128 S. Ct. 558 (2007), so that the sentencing judge could consider (and potentially mitigate) the disparity in the Guidelines’ treatment of crack and other forms of cocaine.

This Post Has One Comment

  1. David R. Papke

    There are lots of studies that show bias against the lower classes in our legal system, but most of those studies point to not the law itself but rather what the Legal Realists of the ’30s would have called “law in action” – arrests, prosecutions, punishment, etc. The crack laws, meanwhile, seem to be an area in which bias is built right into the law. If I understand things correctly (a big if!), you can determine if crack is being sold only by referencing the lifestyles and markets of the ghetto poor. Isn’t that inherently discriminatory?

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