concurring.
Although I find the result in this case to be shocking, in that the punishment for the crack cocaine offense is the same as the punishment that would have been imposed for a comparable offense involving 100 times as much powder cocaine, and the evidence indicates that 92% of federal prosecutions for crack cocaine, which require the enormously higher terms of imprisonment, involve African-Americans, I am compelled to concur.
The result in this case, as in many equal protection challenges, depends on whether a rational basis or strict scrutiny test applies. It is extremely difficult, if not impossible, to find an improper discriminatory purpose when an act has been passed by Congress, and the Supreme Court has made clear that such a high hurdle must be cleared for application of the strict scrutiny test. See, Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292-93, 60 L.Ed.2d 870 (1979). If it were an open question in this circuit, one might find that the imposition of the 100 to 1 ratio with its invidious racial effects is so arbitrary and capricious as to lack a rational basis. We have resolved that issue, however, in United States v. Harding, 971 F.2d 410 (9th Cir.1992) (holding that the statutory distinction between crack and powder cocaine was rationally based on differences between the two forms of the drug). I note, however, that Harding did not have the statistical evidence presented in this case, and that recent studies cast doubt on the conclusion that there is a significant difference. While it may not help those in Dumas’ situation, the Sentencing Commission has recommended eliminating the sentencing disparity based on type of cocaine, and that recommendation will become law on November 1, 1995, unless other action is taken by Congress before that date. There also is pending a bill in the House equalizing the sentences for the different types of cocaine. See H.R. 1264, 104th Cong., 1st Sess. (1995). Thus, what appears to me to be an unjustified distinction with appalling racial effects may soon be eliminated.