Not All Cocaine Base Is Crack

United States v. Carl Edwards, Case No. 03-4234 (02/11/2005): "All crack is cocaine base but not all cocaine base is crack." In this case the Court adhered to its earlier decision in United States v. Booker, 70 F.3d 488 (7th Cir. 1995) (not to be confused with the more recent and more famous Booker case) and held that the mandatory minimum for crack will not apply if the evidence merely establishes that the substance in question is cocaine base. The Court acknowledged that its ruling maintained a split among the Circuits and called for intervention by either the Supreme Court or the Congress.

The problem arises from Congress’ apparent misunderstanding of chemistry. "Cocaine" and "cocaine base," the two statutory terms, have the same chemical formula. In Booker the Court looked to legislative history (who says legislative history is unimportant?) and concluded that Congress, when it put higher penalties on "cocaine base," was attempting to deal with "crack." Hence, the government must do more than establish that the substance is cocaine base; it must demonstrate that it is "crack." The Court remanded for resentencing, at which the statutory mandatory minimum would not apply.