Breaking News

Argument recap: What to do about coca paste?

At Monday’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.  (See Friday’s post for my pre-argument summary of DePierre.)

Andrew Pincus began his argument for the petitioner by citing the government’s brief in Kimbrough, the 2007 case involving mandatory minimum sentences and the federal Sentencing Guidelines.  That brief described “the provision at issue here as reflecting Congress’s determination that, and I’m quoting, ‘crimes involving crack should be subject to considerably more severe penalties.’”  Justice Kagan started the questioning by asking whether Congress wasn’t also concerned about freebase cocaine.  Pincus answered that, on his reading, the substance known as freebase would come within the statutory definition of “cocaine base.”

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.  Justice Scalia suggested that this definition was “neither . . . the definition of crack nor . . . the chemical definition of cocaine base.  It’s neither fish nor fowl.”  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.  Justice Scalia replied that, even so, “I don’t know how ‘cocaine base’ remotely suggests” 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.  Instead, it would be enough for a chemist to testify that, in his opinion, the compound had been produced with such a reactant.  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.  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 government’s interpretation of “cocaine base” 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 “[w]hether you call it freebase, coca paste or crack, it’s the same thing chemically.  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.”  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 government’s reading, Congress had chosen “a bizarre term” – such as “apple fruit” or “poodle dog” – in which the longer formulation adds no meaning.  Saharsky replied that “cocaine base” was an “extra clear” way to speak about the substance in question.

The Court then turned to a series of questions – initiated by Justice Sotomayor but continued by Justices Alito and Ginsburg – intended to clarify the contents of the statutory category “cocaine, its salts, optical and geometric isomers,” which subjects an offender to lighter penalties than an equivalent amount of “cocaine base.”  On the government’s reading, “cocaine” and “cocaine base” are synonyms.  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 “cocaine.”  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 “cocaine base” could be defined as “cocaine in the chemical form of a base after it has been processed beyond the stage of coca paste.”  Saharsky objected that DEA chemists could identify the chemicals present in a substance but would not “start making guesses about how it was processed.”  Justice Kagan replied that the Court could simply say that, to be “cocaine base” a substance “needs the right chemical definition, and it’s… rock-like, crystalline, whatever you want to call it.”  Saharsky warned that to do so would be “basically giving a… roadmap” to drug traffickers who wanted to avoid elevated sentences.  Justice Scalia suggested that her first objection should be that “there is no way to get [Justice Breyer’s proposed definition] out of these words, no way, absolutely no way.”  Saharsky agreed.

Justice Kagan returned to the relationship between the statutory categories, suggesting that reading the terms “cocaine” and “cocaine base” to have identical meanings even though they appear in separate provisions would be “like saying apples, oranges, and bananas cost one dollar; aforesaid apples cost three dollars.  That’s a strange way to write a statute.”  Saharsky replied that Congress had written it just that way.  Justice Scalia suggested that it is “relatively common statutory drafting to include something in an earlier section which is also included in a later section that imposes a higher penalty.”  He offered the example of murder, the subset of more severely punished homicides.

Justices Ginsburg and Breyer returned to the problems of reading “cocaine base” to include coca paste.  Saharsky emphasized that coca paste is smokeable, and argued that Congress had been concerned with smokeable cocaine.  She further emphasized that the circuits that have confronted ambiguous substances—“a brown, soft, mushy wet substance” in one case, “a wet gooey, cream-colored substance” in another—that contain chemically basic cocaine have seen the virtue in the government’s reading of the statute.  Justice Alito asked whether coca paste couldn’t be distinguished from these substances on the basis of characteristic impurities.  Saharsky replied that to do so would require more advanced chemistry than that usually performed by DEA chemists.

In his rebuttal, Pincus accepted Justice Breyer’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 government’s reading) “cocaine base” was identical to “cocaine” and not a subset of it.

Recommended Citation: James Bickford, Argument recap: What to do about coca paste?, SCOTUSblog (Mar. 3, 2011, 5:33 PM),