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September 12, 2006

Worst Statute in the World for September 12, 2006

Again with a nod to Keith Olbermann, this week's Worst Statute in the World has been around for nearly 20 years, has resulted in circuit splits as to its meaning, and has been called "not a model of clarity" and was enacted "without the usual deliberative process afforded to such important legislation."  U.S. v. Perry, 389 F.Supp.2d 278 (D. R.I. 2005).  The Second Circuit just entered the fray.  U.S. v. Castillo, __ F.3d __, 2006 WL 2374281 (2d Cir. Aug. 16 2006).

It's 21 USC 841, our first criminal statute to win this prestigious award.  But it deserves it.  I won't try to summarize all of the interpretive issues this statute has created and, no doubt, will continue to create..

The statute was adopted in 1986 as part of the "war on drugs" after the death of Len Bias and others from cocaine overdoses.  It made certain activities federal crimes, imposed stiffer penalties, and all in all probably was a good idea.  Hooray for our side.

The statute creates some stark distinctions depending on what form of cocaine the defendant possesses: a defendant who possesses 5 grams of "cocaine base" gets the same mandatory minimum sentence as a defendant who has 500 grams of cocaine -- 5 years.  So, a defendant can have 100 times as much grams of "cocaine" as "base cocaine" and get similar punishment.  Put the other way, under the statute, it takes possession of 500 grams of cocaine to get the 5 year minimum, but only 5 grams of "base cocaine" to do so. 

Sounds okay, so long as it's worse to have "base cocaine" than "cocaine."  Therein lies the problem:  not only does the statute not define "base cocaine"  scientifically speaking, "cocaine" is "base cocaine".  "To a scientist, 'cocaine' and 'cocaine base' are synonymous..."  Id.  So, what happens if you have 6 grams of "cocaine":  is it also "base cocaine" and so you get the 5 year sentence?

The split is wide, and far, and deep, and... has your tax dollars working for more than two decades on this point, which could be fixed if Congress would act.  But it hasn't.

Today's Worst Statute in the World, where your tax dollars are being wasted because of a rushed-through, poorly drafted statute, and nothing's been done for 20 years.

September 12, 2006 | Permalink

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