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7th Circuit Says Disparity in Cocaine Penalties Constitutional

By Tanya Roth, Esq. on June 09, 2011 | Last updated on March 21, 2019

Is crack cocaine more powerful than powder cocaine?

While that issue wasn’t for the 7th Circuit Court of Appeals to decide, the court did decide on whether the more severe penalty imposed on a defendant for distributing crack cocaine was a violation of Due Process and Equal Protection.

The question before the court, in simple terms, was this: Do the excessively more severe crack cocaine penalties violate the constitution?

Quick facts:

The defendant, Roderick Moore, was arrested on federal drug trafficking charges in 2008, for selling powder and crack cocaine to a cop.

Distribution of crack cocaine is punished 100 times more severely than powder cocaine.


  1. The 100-to-1 ratio is arbitrary and irrational, in violation of his right to substantive due process.
  2. The crack-powder disparity has a disparate impact on African-American defendants, in violation of the Equal Protection clause of the Fifth Amendment.

Court's Holding:

The court looked at whether the crack/powder disparity in cocaine penalties bore a reasonable relation to any proper legislative purpose. The 7th Circuit looked to SCOTUS precedent in explaining:

"(1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy;
(4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular." (see Kimbrough v US).

Moore also contented that the majority of convicted crack cocaine offenders were African-American. Thus, he alleged, the penalty had a disparate impact.

The 7th Circuit Court of Appeals concluded that Moore failed to demonstrate that Congress acted with discriminatory intent when enacting the crack/powder differential. Thus, the rational basis standard applied. Under this standard, the court found that the crack/powder disparity was rationally related to Congress's interest in protecting the public from crack cocaine.

So there we have it. Crack cocaine is 100 times more severely punished than powder cocaine.

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