In a 1986 law that must surely rate as one of Congress’s most ill-informed overreactions to a high-profile tragedy– the cocaine-related death of college basketball star Len Bias — a new mandatory minimum ten-year sentence was created for drug offenders involved in dealing 50 or more grams of “cocaine base.”  Never mind that Bias used the powder form of cocaine.  Never mind that crack — the form of cocaine that everyone was most concerned about at the time — is only one type of cocaine base.  Congress instead chose to direct the harsh new penalties at cocaine base, a category that is narrower than all cocaine, but broader than just crack (at least if the term ”cocaine base” is understood literally).  As is now well known, the result of this unfortunate law has been to create massive racial disparities in federal drug sentencing between white defendants (who are typically involved with powder) and black defendants (who are more typically involved with crack). 

Although “cocaine base” cases normally involve what is undisputably crack, defendants have from time to time litigated whether a particular susbtance really triggers the ten-year minimum.  These cases have produced a longstanding circuit split, with six circuits (the First, Second, Third, Fourth, Fifth, and Tenth) reading “cocaine base” to encompass all forms cocaine that are chemically classified as a base, and five circuits holding that “cocaine base” means more narrowly what Congress was really concerned about, i.e., crack and other types of smokable cocaine base.  With today’s cert. grant in DePierre v. United States, 599 U.S. 25 (1st Cir. 2010), the Supreme Court appears poised finally to resolve the issue.