Argument recap: What to do about coca paste?
on Mar 3, 2011 at 5:33 pm
At Mondayâ€™s oral argument in DePierre v. United States, the Court wrestled with the question of whether convictions for offenses involving coca paste should be subject to the same mandatory minimum sentence as those involving crack.Â (See Fridayâ€™s post for my pre-argument summary of DePierre.)
Andrew Pincus began his argument for the petitioner by citing the governmentâ€™s brief in Kimbrough, the 2007 case involving mandatory minimum sentences and the federal Sentencing Guidelines.Â That brief described â€œthe provision at issue here as reflecting Congressâ€™s determination that, and Iâ€™m quoting, â€˜crimes involving crack should be subject to considerably more severe penalties.â€™â€Â Justice Kagan started the questioning by asking whether Congress wasnâ€™t also concerned about freebase cocaine.Â Pincus answered that, on his reading, the substance known as freebase would come within the statutory definition of â€œcocaine base.â€
Pincus proposed a three-part definition of cocaine base, under which the substance must be cocaine, must have been prepared by processing cocaine hydrochloride (that is, powder cocaine) with a base and, finally, must be solid and smokeable.Â Justice Scalia suggested that this definition was â€œneither . . . the definition of crack nor . . . the chemical definition of cocaine base.Â Itâ€™s neither fish nor fowl.â€Â Pincus responded that the definition of crack (now generally understood to be made only with baking soda) was not altogether clear when Congress enacted the law.Â Justice Scalia replied that, even so, â€œI donâ€™t know how â€˜cocaine baseâ€™ remotely suggestsâ€ the definition that Pincus was proposing.
Under questioning by Justices Alito and Kagan, Pincus clarified the second part of his proposed test: the basic reactant used in processing powder cocaine need not be present in the final, rock-like product.Â Instead, it would be enough for a chemist to testify that, in his opinion, the compound had been produced with such a reactant.Â Pincus conceded that, as a fallback position, he would be happy to accept the test without its second part, and also said that a pulverized solid would satisfy the third.
Responding to questions from Justice Sotomayor, Pincus said that cocaine could only be made into a rock-like form through the use of a base, and that coca paste was the intermediate step between coca leaves and all other cocaine products.Â When Justice Kennedy asked about the status of coca leaves Pincus clarified the position laid out in his brief, arguing that because coca leaves contain cocaine in both its basic and salt forms, the governmentâ€™s interpretation of â€œcocaine baseâ€ would trigger an elevated sentence for offenses involving fifty grams of leaves.
Arguing for the government, Assistant to the Solicitor General Nicole Saharsky told the Court that â€œ[w]hether you call it freebase, coca paste or crack, itâ€™s the same thing chemically.Â It is cocaine base, it is smokeable, it has the same effects on the user, and Congress did not limit the statute to one form of cocaine base.â€Â In response to a question from Justice Sotomayor about the status of coca leaves, Saharsky replied that the government could not prove that coca leaves contain basic cocaine, and moreover that Congress in drafting the statute had seen no evidence that leaves contain that substance.
Justice Kagan suggested that, on the governmentâ€™s reading, Congress had chosen â€œa bizarre termâ€ â€“ such as â€œapple fruitâ€ or â€œpoodle dogâ€ â€“ in which the longer formulation adds no meaning.Â Saharsky replied that â€œcocaine baseâ€ was an â€œextra clearâ€ way to speak about the substance in question.
The Court then turned to a series of questions â€“ initiated by Justice Sotomayor but continued by Justices Alito and Ginsburg â€“ intended to clarify the contents of the statutory category â€œcocaine, its salts, optical and geometric isomers,â€ which subjects an offender to lighter penalties than an equivalent amount of â€œcocaine base.â€Â On the governmentâ€™s reading, â€œcocaineâ€ and â€œcocaine baseâ€ are synonyms.Â Saharsky argued that the first category is intended to punish offenses involving powder cocaine, and the second offenses involving coca paste, crack and freebase, even though all of the latter substances are â€œcocaine.â€Â She explained that the statutory definition was somewhat unwieldy because it had been taken verbatim from other places in the Controlled Substances Act.
Justice Breyer suggested that the term â€œcocaine baseâ€ could be defined as â€œcocaine in the chemical form of a base after it has been processed beyond the stage of coca paste.â€Â Saharsky objected that DEA chemists could identify the chemicals present in a substance but would not â€œstart making guesses about how it was processed.â€Â Justice Kagan replied that the Court could simply say that, to be â€œcocaine baseâ€ a substance â€œneeds the right chemical definition, and itâ€™sâ€¦ rock-like, crystalline, whatever you want to call it.â€Â Saharsky warned that to do so would be â€œbasically giving aâ€¦ roadmapâ€ to drug traffickers who wanted to avoid elevated sentences.Â Justice Scalia suggested that her first objection should be that â€œthere is no way to get [Justice Breyerâ€™s proposed definition] out of these words, no way, absolutely no way.â€Â Saharsky agreed.
Justice Kagan returned to the relationship between the statutory categories, suggesting that reading the terms â€œcocaineâ€ and â€œcocaine baseâ€ to have identical meanings even though they appear in separate provisions would be â€œlike saying apples, oranges, and bananas cost one dollar; aforesaid apples cost three dollars.Â Thatâ€™s a strange way to write a statute.â€Â Saharsky replied that Congress had written it just that way.Â Justice Scalia suggested that it is â€œrelatively common statutory drafting to include something in an earlier section which is also included in a later section that imposes a higher penalty.â€Â He offered the example of murder, the subset of more severely punished homicides.
Justices Ginsburg and Breyer returned to the problems of reading â€œcocaine baseâ€ to include coca paste.Â Saharsky emphasized that coca paste is smokeable, and argued that Congress had been concerned with smokeable cocaine.Â She further emphasized that the circuits that have confronted ambiguous substancesâ€”â€œa brown, soft, mushy wet substanceâ€ in one case, â€œa wet gooey, cream-colored substanceâ€ in anotherâ€”that contain chemically basic cocaine have seen the virtue in the governmentâ€™s reading of the statute.Â Justice Alito asked whether coca paste couldnâ€™t be distinguished from these substances on the basis of characteristic impurities.Â Saharsky replied that to do so would require more advanced chemistry than that usually performed by DEA chemists.
In his rebuttal, Pincus accepted Justice Breyerâ€™s proposed definition of cocaine base, argued that coca paste did not have the potency of crack or freebase, and suggested to Justice Scalia that his analogy to homicide and murder was flawed in that (on the governmentâ€™s reading) â€œcocaine baseâ€ was identical to â€œcocaineâ€ and not a subset of it.