Cocaine is one of the most widely used illicit drugs in California. This article explains the difference between powder and crack, discusses the crimes that are commonly associated with cocaine in California, and describes the penalties that judges can impose upon conviction of those crimes.
Powder and Crack. What’s the Difference?
Most cocaine comes from the Andes region of South America, where it is extracted from coca leaves. Before its addictive nature became apparent, cocaine was marketed in the United States as a cure for coughs, toothaches, depression and fatigue. After federal regulation of the substance began in 1914, the approved medical uses were severely restricted. It remains the most effective topical anesthetic for surgical procedures involving the mouth, nose, and throat.
As a recreational drug in the United States, cocaine is typically available in one of two forms: powder or crack. Cocaine hydrochloride is packaged as a white crystalline powder. The powder is usually ingested by inhaling (or “snorting”) it through the nose.
Crack (the most common version of “cocaine base”) is made by heating a mixture of cocaine hydrochloride and baking soda in water. The oily substance that floats to the top assumes a hard, rock-like form when it cools. While powder cocaine tends to burn away before it can be smoked, crack vaporizes at a lower temperature and can be easily ingested by smoking.
Because crack enters the bloodstream more quickly than powder, it may deliver a faster or more powerful “high.” Politicians and drug warriors often claim that crack is more dangerous than the powder version. Since the primary difference between the two forms of the substance is the delivery mechanism rather than the chemical structure of the substance itself, those claims are of dubious merit.
Crimes involving crack nevertheless tend to be punished more harshly than comparable crimes involving powder. The demonization of crack might be explained by the perception that crack appeals to a less affluent segment of society, while more privileged users are seen as gravitating toward powder.
Crimes and Penalties
Drug offenses in California are defined by the California Uniform Controlled Substances Act. A “controlled substance” is a regulated drug that appears in one of five lists or “schedules” of controlled substances. The powdered version appears in Schedule II (drugs with accepted medical uses and a high potential for abuse) while crack appears in Schedule I (drugs with a high potential for abuse that have no medical benefit).
A number of crimes involving this substance can be prosecuted under California law. The following is a brief description of the most common offenses.
The crime of simple possession is generally committed by individuals who possess the substance for their personal use. The crime requires the prosecution to prove that:
- The accused unlawfully possessed the substance. Any possession by a person who does not have a prescription or the government’s permission to possess cocaine is unlawful.
- The accused possessed a usable amount. A “usable amount” does not need to be enough to produce a “high” in the user, but it must be more than trace amounts that cannot realistically be gathered and used.
- The accused was aware of the drug’s presence.
- The accused knew that the drug was some kind of controlled substance. The accused did not need to know that the substance was cocaine as long as the accused understood that it was an illegal drug.
“Possession” means having control of, or the ability to control, the drug. An individual can therefore possess it even if it is not in his or her physical presence. Two or more people can possess the same illegal drug if they each have the right to take it or to use it. On the other hand, a person who agrees to buy it does not possess it until he or she gains control of it. Being near cocaine is not “possession”.
Cocaine that a user has consumed is no longer possessed. A related misdemeanor, however, prohibits being “under the influence”.
A conviction of possession in California (whether powder or crack) allows a judge to choose between one of three custodial sentences: 16 months, 2 years, or 3 years. Other sentencing options may be available for some defendants, as noted below.
Possession for sale
Possession for sale is a more serious crime than simple possession. It is usually charged when no sale has been made but when the amount possessed is too large for personal use. It may also be charged when there is other evidence that the accused plans to sell the coke, including the presence of scales and baggies, or when witnesses are prepared to testify that the accused is a drug dealer.
In addition to proving each of the four elements of simple possession described above, a charge of possession for sale requires the prosecution to prove that when the accused possessed the coke, he or she intended to sell it. “Selling” means transferring possession to someone else in exchange for money, services, or anything of value.
A conviction of possessing powder coke for sale in California allows a judge to choose a sentence of 2, 3, or 4 years. A conviction of possessing crack for sale in California allows a judge to choose a sentence of 3, 4, or even 5 years.
Selling or Transporting
“Selling or transporting” is a shorthand description of a crime that can be committed in several different ways. The prosecution must prove that the accused committed one of the following acts:
- Sold, furnished, or gave away coke (by transferring possession of coke to another person).
- Administered coke (by injecting it into the body of another person or by causing another person to inhale it).
- Transported coke for sale (by moving it from one location to another).
- Imported coke into California.
In addition to proving one of those acts, the prosecution must prove that the act involved a usable amount of coke and that the accused knew of its presence and knew it was a controlled substance.
A conviction of selling or transporting coke in California allows a judge to choose a sentence of 2, 3, or 4 years. However, a conviction of transporting coke from one California county to any other California county that is not contiguous (neighboring) allows the judge to choose a sentence of 3, 6, or even 9 years.
Cocaine is usually extracted from coca leaves and refined before it is imported into the United States. While manufacturing powder coke in California would therefore be rare, the crime of manufacturing also applies to making crack from powder.
A manufacturing charge requires the prosecution to prove that the accused:
- produced, derived, or prepared the substance by using “chemical extraction or independent chemical synthesis,” and
- knew that the drug being manufactured was a controlled substance.
A conviction of manufacturing in California allows a judge to choose a sentence of 3 years, 5 years, or 7 years. A conviction of offering to manufacture coke allows a judge to choose a sentence of 3 years, 4 years, or 5 years.
Alternative and Additional Penalties
Sentences are increased for crimes other than simple possession that involve large amounts of cocaine. Any amount over 1 kilogram requires the imposition of a longer sentence, and progressively longer sentences are triggered by larger amounts. Additional penalties may be imposed if the crime occurred near a drug treatment facility or homeless shelter or if drugs were furnished to certain persons, including minors, pregnant women, and addicts. Convicted defendants who have a criminal record may also face longer sentences. Drug convictions may have immigration consequences that are beyond the scope of this article.
Probation (with up to a year in jail) is an option for less serious coke crimes. Fines may be imposed as a condition of probation. Community service is generally available for individuals who cannot afford to pay a fine. In some cases, fines may be assessed in lieu of or in addition to incarceration. For the crime of simple possession, drug diversion programs (usually including drug treatment) may be a sentencing alternative available to eligible offenders.
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