## Facts

- Edward James Clary, a Black defendant, pled guilty to possession with intent to distribute 67.76 grams of cocaine base under 21 U.S.C. § 841(b)(1)(A)(iii).
- The statute treated 50 grams or more of cocaine base as triggering a 10-year mandatory minimum, while a comparable minimum applied to 5,000 grams of powder cocaine (a 100:1 ratio), mirrored in U.S.S.G. § 2D1.1.
- Before sentencing, Clary sought a downward departure and argued the statute and guideline violated equal protection (via the Fifth Amendment) because of disproportionate impact on Black defendants.
- The district court conducted extended hearings, relied on national conviction statistics and legislative-history evidence, and concluded the 100:1 ratio reflected “unconscious racism” and lacked adequate justification.
- The district court declared the crack provisions unconstitutional on equal protection grounds and sentenced Clary to four years rather than the 10-year mandatory minimum.
- The United States appealed, challenging the constitutional rulings and the below-minimum sentence.

## Issues

1. Whether the 100:1 crack–powder ratio in 21 U.S.C. § 841(b)(1)(A)(iii) and U.S.S.G. § 2D1.1 violates equal protection under the Fifth Amendment due to racially disparate impact.
2. Whether Clary established unconstitutional selective prosecution based on race in the charging and enforcement of crack offenses.

## Decision

- The Eighth Circuit reversed and remanded for resentencing under the applicable statute and guidelines.
- The court held the crack–powder disparity did not violate equal protection absent proof that Congress acted with a discriminatory purpose.
- The court rejected the district court’s use of “unconscious racism” as a sufficient constitutional basis to invalidate the law.
- The court held Clary failed to satisfy the requirements for a selective-prosecution claim because he did not show similarly situated non-Black offenders were not prosecuted and did not show discriminatory purpose by prosecutors in his case.

## Legal Principles

- A facially neutral law with racially disparate impact violates equal protection only if the challenger proves both discriminatory effect and discriminatory purpose.
- Legislative race-neutral justifications for differential drug penalties may defeat an inference that Congress acted “because of” racial impact.
- “Unconscious” bias is not the constitutional equivalent of intentional discrimination for equal protection invalidation of federal criminal statutes.
- Selective prosecution requires proof that similarly situated persons of a different race were not prosecuted and that the prosecution decision was motivated by discriminatory purpose; generalized national statistics are insufficient without case-specific comparators and intent evidence.

## Conclusion

The Eighth Circuit reinstated the governing standard that disparate racial impact, without proof of intentional discrimination by Congress or prosecutors, does not invalidate the federal crack sentencing scheme on equal protection or selective-prosecution grounds, and it ordered resentencing under the statutory mandatory minimum and guideline framework.


United States v. Clary, 34 F.3d 709 (8th Cir. 1994)