Friday, June 10, 2011

What did Congress mean by "cocaine base?"

In August 1986, I wrote H.R. 5394, and House Report 99-845 (Part 1) to accompany that bill, when I was assistant counsel to the Subcommittee on Crime of the House Judiciary Committee.

H.R. 5394, "the Narcotics Penalties and Enforcement Act of 1986" became sections 1001 through 1105 of "the Anti-Drug Abuse Act of 1986," (P.L. 99-570) in other words, the infamous crack cocaine mandatory minimum sentences.

At the direction of the Subcommittee, in the bill I used the words "cocaine base" for "crack" because crack was a street or slang term not appropriate for use in the statute. Congress understood that "cocaine base" meant "crack." All other forms of cocaine were cocaine, which itself was redefined in section 1867 of the Anti-Drug Abuse Act to be a very encompassing definition found in 21 U.S.C. 812 (c) Schedule II (a)(4) and 21 U.S.C. (b)(1)(A)(ii). We referred specifically to "crack" on page 12 of the House Report.

Yesterday the U.S. Supreme Court came up with a somewhat different answer, in an unanimous opinion by Justice Sotomayor, in the case of DePierre v. U.S., 564 U.S. ___ , (No.09-1533) (2011).

I have lost track of the number of times laws that I have written between 1981 and 1989 dealing with drugs, gun control, pornography and other issues, have been reviewed by the U.S. Supreme Court, but you would think that at some point, someone involved in these cases would ask me what the Congress intended in enacting the statute that I wrote for it.

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