Comments on: Lake v. Canada (Minister of Justice) – Reaffirming Judicial Deference To Federal Decisionmaking http://www.thecourt.ca/2008/05/22/lake-v-canada-minister-of-justice-reaffirming-judicial-deference-to-federal-decisionmaking/ The Court is the online resource for data and debate about the Supreme Court of Canada. Fri, 10 Feb 2012 22:34:40 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Marcus Pratt http://www.thecourt.ca/2008/05/22/lake-v-canada-minister-of-justice-reaffirming-judicial-deference-to-federal-decisionmaking/comment-page-1/#comment-73293 Marcus Pratt Mon, 26 May 2008 20:32:30 +0000 http://www.thecourt.ca/2008/05/22/lake-v-canada-minister-of-justice-reaffirming-judicial-deference-to-federal-decisionmaking/#comment-73293 Matthew Harrington suggests that, even though the quantities of powder cocaine required to trigger the mandatory minimum penalties in the United States are 100 times greater than the quantities of crack cocaine, it is unfair to characterize this differential in punishment as arbitrary or nonsensical. To his credit, he does not seek to justify the sentencing differential by the usual but now unsupportable view that crack cocaine is significantly more harmful than powder cocaine. Instead, the large differential to his mind can be justified by the low-cost of crack cocaine that makes it a particularly attractive product to school children. Readers of <em>TheCourt.ca </em>might be interested to know that in 2002 the United States Sentencing Commission, in its "Report to Congress: Cocaine and Federal Sentencing Policy", dismissed the notion that there was an epidemic of crack cocaine use among young Americans: Although these Congressional concerns of the mid-1980s were understandable at the time, recent data indicate that the epidemic of crack cocaine use by youth never materialized to the extent feared. The National Household Survey on Drug Abuse reports that crack cocaine use among 18- to 25-year old adults historically has been low. Between 1994 and 1998, on average less than 0.4 percent of those young adults reported using crack cocaine within the past 30 days. In fact, in 1998 the rate of powder cocaine use among young adults was almost seven times as high as the rate of use of crack cocaine. Monitoring the Future surveys report similar findings about cocaine use by high school seniors. From 1987 to 2000, on average less than 1.0 percent of high school seniors reported crack cocaine use within the past 30 days. (Fig. 23.) During that same period, the rate of powder cocaine use by high school seniors was almost twice as high, but averaged only 1.9 percent. The low rate of crack cocaine use by young people also is consistent with Commission sentencing data indicating that in 2000 only 0.5 percent of federal crack cocaine offenses involved the sale of the drug to a minor. (Fig. 20.) Data are not available regarding the number of underage crack cocaine traffickers at the state and local levels, but sentencing data suggest youth do not play a major role in crack cocaine trafficking at the federal level. Minors were involved in only 4.2 percent of federal crack cocaine offenses in 2000. (Fig. 20.) The average age of federal crack cocaine traffickers was 29 years old, only four years younger than the average age of all federal drug traffickers (33 years). See http://www.ussc.gov/r_congress/02crack/ch8.pdf In its 2007 Report to Congress, the Sentencing Commission again took a critical view of the danger that cocaine (crack or powder) allegedly posed to America's youth: <blockquote>The involvement of co-participants under 18 years of age, rare in both powder cocaine and crack cocaine offenses, decreased for both drug types from 2000 to 2005. In 2000, 1.8 percent of powder cocaine offenses and 4.2 percent of crack cocaine offenses involved minors as co-participants, and these figures decreased to 1.7 percent and 2.5 percent, respectively, in 2005. The proportion of cocaine offenses that occurred in a protected location* [including trafficking near schools] increased for both drug types between 2000 and 2005, but these offenses continued to occur infrequently. In 2000, 0.9 percent of powder cocaine offenses and 4.5 percent of crack cocaine offenses occurred in a protected location. Each increased slightly to 1.1 percent and 5.1 percent. *protected location offenses involve the distribution of illicit drugs to persons under age 21 (21 U.S.C. sec. 859); the distribution or manufacture of drug within 1,000 feet of a school, college, public housing complex, or playground or within 100 feet of a youth center, public swimming pool, or a video arcade facility (21 U.S.C. sec. 860); and the employment of persons under age 18 to distribute illicit drugs or otherwise participate in a drug conspiracy or distribution to pregnant women (21 U.S.C. sec. 861). </blockquote> see http://www.ussc.gov/r_congress/cocaine2007.pdf In both its 2002 and 2007 Reports, the United States Sentencing Commission recommended the abolishment of the mandatory 100:1 punishment deferential between crack and powder cocaine offences. Matthew Harrington suggests that, even though the quantities of powder cocaine required to trigger the mandatory minimum penalties in the United States are 100 times greater than the quantities of crack cocaine, it is unfair to characterize this differential in punishment as arbitrary or nonsensical. To his credit, he does not seek to justify the sentencing differential by the usual but now unsupportable view that crack cocaine is significantly more harmful than powder cocaine. Instead, the large differential to his mind can be justified by the low-cost of crack cocaine that makes it a particularly attractive product to school children.

Readers of TheCourt.ca might be interested to know that in 2002 the United States Sentencing Commission, in its “Report to Congress: Cocaine and Federal Sentencing Policy”, dismissed the notion that there was an epidemic of crack cocaine use among young Americans:

Although these Congressional concerns of the mid-1980s were understandable at the time, recent data indicate that the epidemic of crack cocaine use by youth never materialized to the extent feared. The National Household Survey on Drug Abuse reports that crack cocaine use among 18- to 25-year old adults historically has been low. Between 1994 and 1998, on average less than 0.4 percent of those young adults reported using crack cocaine within the past 30 days. In fact, in 1998 the rate of powder cocaine use among young adults was almost seven times as high as the rate of use of crack cocaine.

Monitoring the Future surveys report similar findings about cocaine use by high school seniors. From 1987 to 2000, on average less than 1.0 percent of high school seniors reported crack cocaine use within the past 30 days. (Fig. 23.) During that same period, the rate of powder cocaine use by high school seniors was almost twice as high, but averaged only 1.9 percent. The low rate of crack cocaine use by young people also is consistent with Commission sentencing data indicating that in 2000 only 0.5 percent of federal crack cocaine offenses involved the sale of the drug to a minor. (Fig. 20.)

Data are not available regarding the number of underage crack cocaine traffickers at the state and local levels, but sentencing data suggest youth do not play a major role in crack cocaine trafficking at the federal level. Minors were involved in only 4.2 percent of federal crack cocaine offenses in 2000. (Fig. 20.) The average age of federal crack cocaine traffickers was 29 years old, only four years younger than the average age of all federal drug traffickers (33 years).

See http://www.ussc.gov/r_congress/02crack/ch8.pdf

In its 2007 Report to Congress, the Sentencing Commission again took a critical view of the danger that cocaine (crack or powder) allegedly posed to America’s youth:

The involvement of co-participants under 18 years of age, rare in both powder cocaine and crack cocaine offenses, decreased for both drug types from 2000 to 2005. In 2000, 1.8 percent of powder cocaine offenses and 4.2 percent of crack cocaine offenses involved minors as co-participants, and these figures decreased to 1.7 percent and 2.5 percent, respectively, in 2005. The proportion of cocaine offenses that occurred in a protected location* [including trafficking near schools] increased for both drug types between 2000 and 2005, but these offenses continued to occur infrequently. In 2000, 0.9 percent of powder cocaine offenses and 4.5 percent of crack cocaine offenses occurred in a protected location. Each increased slightly to 1.1 percent and 5.1 percent.

*protected location offenses involve the distribution of illicit drugs to persons under age 21 (21 U.S.C. sec. 859); the distribution or manufacture of drug within 1,000 feet of a school, college, public housing complex, or playground or within 100 feet of a youth center, public swimming pool, or a video arcade facility (21 U.S.C. sec. 860); and the employment of persons under age 18 to distribute illicit drugs or otherwise participate in a drug conspiracy or distribution to pregnant women (21 U.S.C. sec. 861).

see http://www.ussc.gov/r_congress/cocaine2007.pdf

In both its 2002 and 2007 Reports, the United States Sentencing Commission recommended the abolishment of the mandatory 100:1 punishment deferential between crack and powder cocaine offences.

]]> By: Matthew P Harrington http://www.thecourt.ca/2008/05/22/lake-v-canada-minister-of-justice-reaffirming-judicial-deference-to-federal-decisionmaking/comment-page-1/#comment-73122 Matthew P Harrington Sun, 25 May 2008 21:25:53 +0000 http://www.thecourt.ca/2008/05/22/lake-v-canada-minister-of-justice-reaffirming-judicial-deference-to-federal-decisionmaking/#comment-73122 I hardly think it fair to say that the distinctions between punishments for crack and powdered cocaine are either "arbitrary" or "nonsensical." The difference in punishment is based on the fact that crack cocaine is easier to produce and much cheaper to sell. This makes crack cocaine a much greater danger --- especially to young people who are a favourite target of crack dealers. In fact, it is clear that because of its low cost and ease of production crack cocaine is much easier to distribute. Crack cocaine, rather than powdered cocaine, is therefore readily available to school children. American authorities have, therefore, made a reasoned decision to combat crack cocaine use among young people by vigourously prosecuting those who sell. Because of its high cost, powdered cocaine is unlikely to be used except by those with means. The idea in differential sentencing was to attack what was thought to be the greater evil: flooding the nation's schoolyards with hard drugs. I suppose it is fair to question whether stiffer sentences are an effective deterrent. However, I hardly think it fair to dismiss this approach as "nonsensical" or something akin to a racist plot. I hardly think it fair to say that the distinctions between punishments for crack and powdered cocaine are either “arbitrary” or “nonsensical.” The difference in punishment is based on the fact that crack cocaine is easier to produce and much cheaper to sell. This makes crack cocaine a much greater danger — especially to young people who are a favourite target of crack dealers. In fact, it is clear that because of its low cost and ease of production crack cocaine is much easier to distribute. Crack cocaine, rather than powdered cocaine, is therefore readily available to school children.

American authorities have, therefore, made a reasoned decision to combat crack cocaine use among young people by vigourously prosecuting those who sell. Because of its high cost, powdered cocaine is unlikely to be used except by those with means. The idea in differential sentencing was to attack what was thought to be the greater evil: flooding the nation’s schoolyards with hard drugs.

I suppose it is fair to question whether stiffer sentences are an effective deterrent. However, I hardly think it fair to dismiss this approach as “nonsensical” or something akin to a racist plot.

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