Earlier this year, a federal appeals court here dismissed a case against four African Americans accused of selling crack cocaine because the court ruled that the government had not proved it wasn’t targeting minorities in federal drug prosecutions.
And in San Francisco last month, another court threw out the conviction of a black defendant from San Diego for selling 2 1/2 ounces of crack, finding that the defense had shown a “colorable basis” of discrimination by prosecutors.
The two cases illustrate a new trend in federal courts across the country, where defense attorneys and public defenders of alleged crack cocaine dealers are trying to turn the tables by putting the government on trial. Their contention: Blacks are being unfairly targeted for stiff federal prosecution, while white crack dealers are either being ignored by authorities or prosecuted in state courts, where penalties are sharply lower.
At first glance, national statistics seem to support the charges. The U.S. Sentencing Commission found that in 1994 blacks accounted for more than 90 percent of federal prosecutions for crack offenses and whites for less than 4 percent.
A 1992 commission survey found that in 16 states - including Connecticut, New Jersey and Illinois - not a single white was prosecuted on federal crack charges. In the Central District of California, the federal trial court that encompasses Los Angeles and six other counties, it was only this year - the first time since Congress enacted stiff mandatory-minimum sentences in 1986 - that a white defendant was indicted for a federal crack offense.
But the statistics don’t reliably show exactly who is using the cheap, addictive, powder-cocaine derivative, and more important, who is selling it. The study most often cited is a National Household Survey by the Department of Health and Human Services in 1993 that found 46 percent of crack users were white; 38 percent were black.
Officers and prosecutors contend that just because there are white consumers of crack does not mean there are white dealers. Only those with intent to distribute drugs are prosecuted in federal court; users are tried by the state.
In minority neighborhoods, where the crack market often leaves a visible trail of destruction, there are obvious dealers to arrest, officials say. White neighborhoods have gone largely unscathed by the drug, they contend, and don’t require the same level of enforcement.
But such a rationale means little to African American defendants, who contend they are taking the brunt of federal crackdowns.
Attorneys for the government flatly deny that racially selective prosecution goes on.
“Defense attorneys have an obligation to raise any issue that might help their client,” Assistant U.S. Attorney Richard Drooyan said.
As the issue gains public momentum, so does the related question of the discrepancy in penalties for powder cocaine offenses vs. crack.
It takes 500 grams of powder to trigger the same federal sentence as five grams of crack, and the U.S. Sentencing Commission last month recommended to Congress that five- and 10-year minimum sentences for crack distribution be cut in order to reduce the discrepancy.
In its report, the commission asserted that although it had found no evidence of discrimination, “the high percentage of blacks convicted of crack cocaine offenses is a matter of great concern. … Penalties clearly must be racially neutral on their face and by design.”