Christopher Ryan Allen v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0492
Filed September 21, 2022

CHRISTOPHER RYAN ALLEN,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.

The applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., Badding, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

POTTERFIELD, Senior Judge.

Christopher Allen appeals from the denial of his application for

postconviction relief (PCR) following his 2015 convictions for possession of a

controlled substance with intent to deliver (cocaine base) (FECR192889) and

possession of a controlled substance with intent to deliver (cocaine base), ongoing

criminal conduct, and a drug tax stamp violation (FECR196716).

Here on appeal, Allen argues for the first time that the disparity between

sentences for crack and powder cocaine violate the Equal Protection Clauses of

both the Federal and Iowa Constitutions. Allen also argues the district court

wrongly denied his application for PCR, claiming he received ineffective assistance

from trial counsel when counsel failed to (1) research and present the police video

of the stop in FECR196716 at the suppression hearing and trial and (2) object to

the district court’s failure to read the verdicts in open court. He argues appellate

counsel provided ineffective assistance by failing to file a timely application for

further review of this court’s opinion in State v. Allen, No. 15-0708, 2016

WL 7395726, at *6 (Iowa Ct. App. Dec. 21, 2016) with the Iowa Supreme Court.

I. Background Facts and Proceedings.

FECR192889. In August 2013, police executed a search warrant at Allen's

home in Waterloo, Iowa. During the search, officers found several rocks of crack

cocaine, cash, a digital scale, and plastic sandwich bags with the corners removed.

Officers then obtained a search warrant to search the apartment of a woman

identified as Allen's girlfriend. In the apartment they found receipts and tickets

documenting trips between the Waterloo area and Chicago, Illinois and a large

amount of cash. In an interview with police officers, Allen said he received the
3

cash from a settlement; he also admitted to selling crack cocaine in Chicago but

denied selling it in Iowa. Based on these and other facts, the State charged Allen

on August 15, 2013, with possession of a controlled substance with intent to

distribute and/or conspiracy to possess a controlled substance with intent to

distribute (cocaine base).

Allen moved to suppress evidence obtained during the execution of the

search warrant, and the district court denied his motion.

FECR196716. In early February 2014, a confidential informant told police

Allen was transporting crack cocaine from Chicago to Waterloo by bus while

concealing the crack cocaine in his pants. Because Allen owed the confidential

informant money for drugs, the police arranged a controlled transaction between

the confidential informant and Allen, during which Allen paid fifty dollars to the

confidential informant, although no narcotics were exchanged. The confidential

informant also told the officers Allen was going to Chicago to acquire additional

narcotics. As a result of this information, the officers obtained a warrant to track

the location of Allen’s cell phone, which notified the officers when Allen travelled

back from Chicago to Waterloo by bus on February 21, 2014. Officers observed

Allen disembark the bus without luggage and enter a vehicle as a passenger.

Police officers ultimately initiated a stop of the vehicle and made contact

with both the driver and Allen, who was a passenger. After searching the driver

and the interior of the vehicle and conducting a pat-down of Allen, officers

employed a K9 to search the interior of the vehicle. Based on the dog indicating

on the seat where Allen had been sitting, Allen was taken to the local police station

and strip-searched. Cocaine base was found sewn into his underwear.
4

Allen moved to suppress the evidence, asserting “law enforcement officers

did not have probable cause to conduct the traffic stop, detain and subsequently

strip search” him. The district court denied the motion, concluding officers had

probable cause to initiate the stop because of an equipment violation—the officer

believed a taillight was not functioning; officers were allowed to search the interior

of the vehicle based on the consent of the driver, who owned the vehicle; and,

once the K9 alerted on the seat where Allen had been sitting, officers had probable

cause to search Allen’s person.

Cases Combined. In December 2014, Allen waived his right to a jury trial

in both FECR192889 and FECR196716.

In a trial on the minutes of evidence, the court found Allen guilty of two

counts possession of a controlled substance with intent to deliver (cocaine base),1

ongoing criminal conduct, and a drug tax stamp violation. He was sentenced to

fifty years imprisonment with a one-third mandatory minimum for the class “B” drug

offense, and all other sentences were to be served concurrently.2

Allen appealed, challenging the district court’s denial of his motion to

suppress evidence in FECR196716. Allen also alleged that he received ineffective

assistance from trial counsel, including a claim that he believed he was receiving

a trial to the bench—rather than just a trial on the minutes of evidence—when he

1 In FECR196716, the court concluded Allen possessed 121.17 grams of crack
cocaine, a class “B” felony, in violation of Iowa Code section 124.401(1)(a)(3)
(2014). In FECR192889, the court concluded Allen possessed .91 grams of crack
cocaine, a class “C” felony, in violation of Iowa Code section 124.401(1)(c)(3)
(2013).
2 Allen was sentenced to ten years for the other drug offense, twenty-five years for

ongoing criminal conduct, and five years for the drug tax stamp violation.
5

waived his right to a jury trial. A panel of this court affirmed the district court’s

denial of the suppression motion, denied Allen’s claim of ineffective assistance

regarding his lack of presence for the “trial on the minutes of testimony,” and

preserved his claim counsel was ineffective in failing to ensure his right to a bench

trial. See State v. Allen, No. 15-0708, 2016 WL 7395726, at *6 (Iowa Ct. App. Dec.

21, 2016).

Allen filed his PCR application in 2017. After a number of amendments and

continuances, a trial on the application took place in March 2021. At the trial,

counsel for Allen listed the seventeen issues Allen wished to raise on PCR. As

relevant here, the district court considered whether trial counsel provided

ineffective assistance (1) by failing to admit the video of the stop in FECR196716

at the suppression hearing and trial; (2) by “not fil[ing] for further review after [t]rial

on the [m]inutes; and (3) because “the verdict was not announced in open court.”

The district court reviewed the police video from the stop, which had not been

previously introduced into evidence. In its written ruling, the court detailed what it

saw in the video before concluding:

[T]he Court finds very little value to the actual video other than
corroborating the stop occurred, the deputy removed the passengers
from the vehicle and both a search and a search by the K-9 was
conducted. The Court does not find ineffective assistance by [trial
counsel] in not playing the video at the motion to suppress nor not
admitting the video at the Trial on the Minutes based upon what the
video actually shows. Counsel is not required to offer evidence that
is not relevant or probative and no prejudice resulted to Mr. Allen.

In considering whether counsel should have filed for further review after the trial

on the minutes, the court noted that while trial counsel did not file any post-trial

motions, Allen filed a pro se motion in arrest of judgment, which he ultimately
6

withdrew. Because “Allen [did] not indicate what other post-trial motions he

believed [trial counsel] should have filed after the Trial on the Minutes,” the district

court concluded he failed to prove he received ineffective assistance. Finally, the

court noted that Allen signed a waiver of jury trial, which included the statement,

"If I waive my right to a jury trial, the case will be tried before a judge who alone

will decide if I am guilty or innocent and will file a decision in writing.” The court

concluded this “suggest[ed] Mr. Allen was aware the [c]ourt would do a decision in

writing rather than in person” but, even if that was not true, the proper remedy

would be to “vacate the conviction, vacate the sentence, and remand the case to

allow the [d]istrict [c]ourt to announce the verdict in a recorded proceedings in open

court pursuant to [Iowa Rule of Criminal Procedure] 2.17(2).” The district court

concluded it did not have the authority to remand the case. It also concluded that

the error was the trial court’s—not trial counsel’s—which meant it “did not amount

to ineffective assistance of counsel.” (Emphasis added.)

The district court denied Allen’s PCR application. He appeals.

II. Discussion.

A. Equal Protection.

In 2015, at the time Allen was convicted and sentenced, possessing “[m]ore

than fifty grams” of cocaine base (i.e. crack cocaine) with intent to deliver was a

class “B” felony that resulted in a fifty-year prison sentence. See Iowa Code

§ 124.401(1)(a)(3) (2015).3 In contrast, to get the same sentence for possessing

3 Allen committed the various crimes in 2013 and 2014; he was convicted and
sentenced in 2015. Because there were no substantive changes to the
subsections at issue here and for ease, all references going forward are to the
2015 Iowa Code unless specifically noted.
7

powder cocaine with the intent to deliver, Allen would have had to possess “[m]ore

than 500 grams” of powder cocaine. See Iowa Code § 124.401(1)(a)(2)(b). Here

on appeal, Allen argues for the first time that the disparity between sentences for

possessing the same amounts of crack and powder cocaine violate the Equal

Protection Clauses of both the Federal and Iowa Constitutions.4 See U.S. Const.

amend. XIV, § 1; Iowa Const. art. I, § 6. As the State concedes, an allegation that

a sentence is illegal may be brought at any time. See State v. Oliver, 812 N.W.2d

636, 639 (Iowa 2012). And a claim that a sentence is unconstitutional constitutes

a claim that the sentence is illegal. See State v. Bruegger, 773 N.W.2d 862, 871

(Iowa 2009). We review constitutional questions de novo. Id. at 869.

The Equal Protection Clauses “require[] that ‘similarly situated persons be

treated alike under the law.’” Wright v. Iowa Dep’t of Corrs., 747 N.W.2d 213, 216

(Iowa 2008). “The first step in determining whether a statute violates equal

protection is to determine whether the statute distinguishes between similarly

situated persons.” Id. If it does, “the court must then determine what level of

review is required—strict scrutiny or rational basis.” Id. “A statute is subject to

strict-scrutiny analysis . . . when it classifies individuals ‘in terms of their ability to

exercise a fundamental right or when it classifies or distinguishes persons by race

or national origin.’” Id. (citation omitted). “All other statutory classifications are

subject to rational-basis review in which case the defendant must show the

4 While Allen raises the issue under both constitutions, he does not suggest
separate analysis is appropriate or necessary. And our supreme court generally
“view[s] the federal and state equal protection clauses as ‘identical in scope,
import, and purpose.’” Varnum v. Brien, 763 N.W.2d 862, 878 n.6 (Iowa 2009)
(citation omitted).
8

classification bears no rational relationship to a legitimate government interest.”

Id.

We assume without deciding that offenders who possess 121.17 grams of

crack cocaine with the intent to deliver (as Allen did) are similarly situated to those

who possess 121.17 grams of powder cocaine with the intent to deliver.5 See

State v. Wade, 757 N.W.2d 618, 625 (Iowa 2008) (“[I]t is the nature of the offense

and not its criminal classification that determines whether offenders are similarly

situated.”). Yet a person who possessed 121.17 grams of crack cocaine would

receive a fifty-year sentence, while a person possessing 121.17 grams of powder

cocaine would receive a sentence of twenty-five years. Compare Iowa Code

§ 124.401(1)(a)(3), with id. § 124.401(1)(b)(2)(b); see also id. § 902.9. So section

124.4016 treats similarly situated people differently.

5 “Crack cocaine was a relatively new drug when the [Anti-Drug Abuse Act of 1986]
was signed into law,” and “Congress apparently believed that crack was
significantly more dangerous than powder cocaine.” Kimbrough v. United States,
552 U.S. 85, 95 (2007). But “[s]ome of the information available to Congress in
retrospect proved not to be empirically sound.” United States Sentencing
Commission, Report to Congress: Cocaine and Federal Sentencing Policy, at 90
(May 2002), https://www.ussc.gov/sites/default/files/pdf/news/congressional-
testimony-and-reports/drug-topics/200205-rtc-cocaine-sentencing-policy/200205
_Cocaine_and_Federal_Sentencing_Policy.pdf (last visited Aug. 11, 2022)).
For example, we now know that, once in the brain, crack and powder
cocaine have the same physiological and psychological effects. U.S. Sentencing
Commission, Report to Congress: Cocaine and Federal Sentencing Policy, at 64
(May 2007), https://www.ussc.gov/sites/default/files/pdf/news/congressional-
testimony-and-reports/drug-topics/200705_RtC_Cocaine_Sentencing_Policy.pdf
(last visited Aug. 10, 2022) (hereinafter 2007 Report). And an offender who
possesses one gram of crack cocaine possesses about the same number of
doses—possibly fewer—than an offender who possesses one gram of powder
cocaine. See id. at 63 (“With respect to doses, one gram of powder cocaine
generally yields five to ten doses, whereas one gram of crack cocaine yields two
to ten doses.”).
6 In 2017, the Iowa legislature amended Iowa Code section 124.401 as it pertains

to amount of crack cocaine necessary to trigger the various levels of felonies.
9

Allen maintains we should apply strict scrutiny to the statute, pointing to

statistics that suggest the disparities in sentencing penalties contribute to the

disproportionate incarceration of African American people:

Iowa Dep’t of Hum. Rts.-Div. of Crim. Just. & Juv. Just. Plan. & Stat. Analysis Ctr.,

Justice Advisory Board 2021 Annual Update to Iowa’s Three-Year Criminal and

Juvenile Justice Plan (Dec. 1, 2021), https://humanrights.iowa.gov/criminal-

juvenile-justice-planning/publications (last visited Aug. 11, 2022).

See 2017 Iowa Acts ch. 122, §§ 7–9. Since the changes took effect, an offender
must possess more than two hundred grams of crack cocaine with the intent of
delivering it to be sentenced to fifty years. See Iowa Code § 124.401(1)(a)(3)
(2022). For his 121.17 grams, Allen would have been sentenced to twenty-five
years. See id. § 124.401(1)(b)(3). But a discrepancy between the amount of crack
cocaine and powder cocaine necessary to trigger a certain sentence still exists.
Compare Iowa Code § 124.401(1)(a)(2)(b) (providing that an offender will be
sentenced to fifty years for possessing “[m]ore than five hundred grams” of powder
cocaine), with id. § 124.401(1)(a)(3) (providing that an offender will be sentenced
to fifty years for possessing “[m]ore than two hundred grams” of crack cocaine).
10

But for strict scrutiny analysis to apply, “the statute must reflect a disparate

treatment of the subject classification, not merely a disparate impact.” State v.

Daniels, No. 14-1442, 2016 WL 5408279, at *4 (Iowa Ct. App. Sept. 28, 2016)

(citing King v. State, 818 N.W.2d 1, 24 (Iowa 2012)). While a significantly greater

percentage of those charged and sentenced for crack-cocaine-related charges are

African American, the statute itself treats African-American dealers of crack

cocaine and white dealers of crack cocaine the same. The distinction within the

statute centers on the substance that is possessed with the intent to deliver—not

the race of the person taking the action. Because the statute itself does not classify

based on race, and disparate impact alone is not enough to trigger strict scrutiny,

we apply rational basis. See id. at *4–5; see also Wright, 747 N.W.2d at 216.

When we review a statute for rational basis, “the defendant must show the

classification bears no rational relationship to a legitimate government interest.”

Wright, 747 N.W.2d at 216.

[T]he Equal Protection Clause is satisfied so long as there is a
plausible policy reason for the classification, the legislative facts on
which the classification is apparently based rationally may have been
considered to be true by the governmental decisionmaker, and the
relationship of the classification to its goal is not so attenuated as to
render the distinction arbitrary or irrational.

Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 107 (2003) (alteration in

original) (citation omitted). Stated another way, we determine “whether the

classifications drawn in a statute are reasonable in light of its purpose.”

McLaughlin v. Florida, 379 U.S. 184, 191 (1964). “Statutes are cloaked with a

strong presumption of constitutionality,” so Allen “carries a heavy burden” in
11

attempting to rebut this presumption. In re Morrow, 616 N.W.2d 544, 547 (Iowa

2000).

The same 2007 Report that debunked a number of wrong assumptions

about crack cocaine, see Kimbrough, 552 U.S. at 97–98, states that the way crack

cocaine is typically used makes it “more potentially addictive to typical users.”

2007 Report, at 63. Because “[s]moking crack cocaine produces quicker onset of

shorter-lasting and more intense effects than snorting powder cocaine,” there is “a

greater likelihood that the user will administer the drug more frequently . . . and

develop an addiction.” Id. So, while “crack cocaine and powder cocaine are

manufactured from the same compound of origin and their pharmacological roots

are identical,” id. at B-20, it does not follow that the societal impact of dealing the

two substances is the same. Because crack is more potentially addictive than

powder cocaine, and drug addiction is generally harmful to society,7 it is

reasonable to set a longer period of imprisonment for dealing crack cocaine—as a

deterrent to the practice. See, e.g., Bearden v. Georgia, 461 U.S. 660, 672 (1983)

(recognizing “[s]tate[s] clearly [have] an interest in punishment and deterrence”).

Because there is a rational basis for the disparity in sentences between

crack and powder cocaine dealers, Allen has not shown that section 124.401

violates equal protection.

7 “The consequences of illicit drug use are widespread, causing permanent
physical and emotional damage to users and negatively impacting their families,
coworkers, and many others with whom they have contact. Drug use negatively
impacts a user’s health, often leading to sickness and disease.” U.S. Dep’t of Just.,
Nat’l Drug Intel. Ctr., National Drug Threat Assessment, at 3 (Feb 2010),
https://www.justice.gov/archive/ndic/pubs38/38661/38661p.pdf (last visited Aug.
11, 2022).
12

B. Ineffective Assistance of Trial Counsel.

Allen challenges the PCR court’s ruling denying his claims that he received

ineffective assistance from trial and appellate counsel.

To prevail on a claim of ineffective assistance of counsel, the
applicant must demonstrate both ineffective assistance and
prejudice. Both elements must be proven by a preponderance of the
evidence. However, both elements do not always need to be
addressed. If the claim lacks prejudice, it can be decided on that
ground alone without deciding whether the attorney performed
deficiently.

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (internal citations omitted).

Our review is de novo. Id. at 141.

1. Motion to Suppress.

Allen argues trial counsel breached an essential duty in failing to introduce

into evidence at the suppression hearing and trial on the minutes the police video

from the stop in FECR196716. In his PCR application, Allen claimed he was

prejudiced by the fact the court never saw the video of the stop and the subsequent

pat-down of his person because it would show “the officers and [S]tate were lying.”

He maintained the video would have shown “[t]hat there was no ‘hit’ on the

passenger seat by any drug dog” and “that [he] complied with the frisk with no

problems.”8 In contrast, Allen argues in his appellate brief that the video shows

8 Allen also claimed that the video would establish that the traffic stop was
pretextual, but as this issue was ruled upon by this court in Allen’s direct appeal,
we do not consider it. See Allen, 2016 WL 7395726, at *3 (“Regardless, ‘even if
we were to find the stop was pretextual, there was still no [Fourth Amendment]
violation because probable cause—not the motivation of the arresting officer—
determines whether the stop is valid.’” (citation omitted)); see also Iowa Code
§ 822.8 (Any ground finally adjudicated . . . in any other proceeding the applicant
has taken to secure relief, may not be the basis for a subsequent
application . . . .”).
13

the ground was slushy, which supports his statement to the officer at the scene of

the stop—as included in the minutes of evidence—that he was not spreading his

legs because “it was slippery and he didn’t want to fall.”

We agree with the PCR court that the video is of limited value. The camera

appears to be mounted on the dashboard of the police vehicle, which pulled in and

parked behind the vehicle in which Allen was a passenger. The vantage point

does not allow us to see inside of the stopped car at the time the K9 performed its

search to determine whether or not it “hit” on Allen’s seat. And the audio consists

mostly of the K9’s panting and barking, along with some radio noise. While we

can tell that the officer conducted a pat-down of Allen, we cannot ascertain whether

there were any difficulties in completing it or whether the officer asked Allen to take

a wider stance. In other words, the video does not undermine the testimony the

officer gave at the suppression hearing that he was unable to pat down Allen’s

“upper thigh area . . .partially due to his size, but also because he wouldn’t spread

his legs”; nor does it establish that the State or officers lied. Finally, we agree that

the video shows the ground is snowy or slushy, but it is not clear to us how a “valid”

justification for not spreading his legs would impact the court’s finding of probable

cause for a more thorough search elsewhere when the dog “hit” on the seat Allen

just vacated, the confidential informant previously told officers Allen hid narcotics

in his pants, and—for whatever reason—Allen would not spread his legs for a pat-

down search.

We cannot say there is a reasonable probability that the admission of the

police video would have changed the outcome of either the suppression hearing

or the trial on the minutes, so Allen has not established that he was prejudiced by
14

counsel’s failure to introduce the video into evidence. See id. at 143 (“To [prove

prejudice], the applicant must demonstrate ‘that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’” (citation omitted)).

2. Reading Verdicts.

Allen claims trial counsel breached an essential duty when he failed to

ensure the court’s verdict be read in open court. See State v. Jones, 817 N.W.2d

11, 19 (Iowa 2012) (“[W]e interpret [Iowa Rule of Criminal Procedure] 2.17(2) to

require the court to reconvene the proceedings and announce its verdict in open

court, unless the defendant has waived his or her right to receive the verdict in

open court.”).

We recognize that the waiver Allen signed informed him “the case will be

tried before a judge who alone will decide if I am guilty or innocent and will file a

decision in writing.” That statement does not explicitly provide that the decision

will only be made in writing (rather than filed in writing and announced in open

court). But even if Allen did not waive his right to have the verdict read in open

court, the court remedied any defect by its later reading of the verdict at sentencing.

See id. at 21 (“We . . . agree with the state court decisions holding the defendant

is not entitled to further relief if the court later reads the verdict at sentencing.”).

Allen cannot show he was prejudiced by trial counsel’s failure to ensure the district

court announced its verdict in open court.

3. Application for Further Review.

Allen argues that he received ineffective assistance from appellate counsel

because counsel did not file a timely application for further review after this court
15

issued an opinion in Allen’s direct appeal. See Iowa R. App. P. 6.1103 (requiring

application for further review “to be filed within 20 days following the filing of the

court of appeals decision.”). We recognize that this is the same claim Allen raised

in at least one of his applications for PCR, but it is not how the issue was framed

to the district court at the PCR trial and not the issue the court actually ruled upon.

At the PCR trial, Allen’s counsel told the court Allen’s claim was he received

ineffective assistance because “[c]ounsel didn’t file for further review and do a brief

within 20 days of the [c]ourt’s ruling on the trial on the [m]inutes.” Allen was asked

at the end of his PCR counsel’s recitation of his claims, “Are those the issues that

you see before the [c]ourt today?” and Allen responded, “Yes.” The court then

ruled on that issue—whether trial counsel provided ineffective assistance by failing

to file for an application for further review following the district court’s ruling.

Because Allen never got a ruling on the issue he now raises on appeal, the

issue has not been preserved for our review. See Lamasters v. State, 821 N.W.2d

856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.” (citation omitted)); State v. Krogmann, 804 N.W.2d 518,

524 (Iowa 2011) (“[W]hen a court fails to rule on a matter, a party must request a

ruling by some means.”). And he does not claim PCR counsel provided ineffective

assistance for how he presented the issue to the district court. See Harryman v.

State, No. 14-1334, 2015 WL 4935640, at *5 (Iowa Ct. App. Aug. 19, 2015)

(recognizing an applicant may raise an ineffective-assistance-of-PCR-counsel

claim on appeal from the denial of a PCR application to bypass error preservation).

So we do not reach the merits of this issue.
16

We affirm the district court’s denial of Allen’s PCR application.

AFFIRMED.

Badding, J., concurs; Tabor, P.J., partially dissents.
17

TABOR, Presiding Judge (concurring in part and dissenting in part).

Like the majority, I believe that Iowa’s laws criminalizing the possession of

crack and powder cocaine treat similarly situated people differently. I also agree

that under current law, we cannot apply strict scrutiny without a showing our

legislature enacted the powder-crack sentencing disparities with a discriminatory

purpose.9 But I respectfully dissent from the majority’s determination that a rational

basis exists for imposing ten times longer sentences for crack-cocaine convictions

than for powder-cocaine offenses.

The State points us to a line of our unpublished cases rejecting similar equal

protection challenges. See, e.g., State v. Daniels, No. 14-1442, 2016

WL 5408279, at *4–5 (Iowa Ct. App. Sept. 28, 2016); State v. Caldwell, No. 02-

9 This is true because federal cases “have not embraced the proposition that a law
or other official act, without regard to whether it reflects a racially discriminatory
purpose, is unconstitutional solely because it has a racially disproportionate
impact.” See Washington v. Davis, 426 U.S. 229, 239 (1976); but see See Yick
Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (noting that where a law is facially
neutral, “if it is applied and administered by public authority with an evil eye and an
unequal hand” the law’s “denial of equal justice is still within the prohibition of the
constitution” and striking down a facially neutral law based solely on evidence of a
stark racial disparity in the law’s application).
But the doctrine requiring proof of discriminatory intent “has been widely
criticized for the way it prevents an inquiry into outcomes and makes it impossible
to recognize systemic discrimination as a legal problem.” Addie C.
Rolnick, Indigenous Subjects, 131 Yale L.J. 2652, 2701 (2022). In response, some
legal theorists advocate an antisubordination approach that “recognizes the
institutional and subtle nature of racism and supports judicial invalidation of facially
neutral practices that sustain racial inequality, regardless of the intent.” Darren
Lenard Hutchinson, “With All the Majesty of the Law”: Systemic Racism, Punitive
Sentiment, and Equal Protection, 110 Cal. L. Rev. 371, 420 (2022). But Allen does
not advance that theory today. Yet, short of strict scrutiny, I believe we should
follow the lead of our neighbors to the north and apply a “stricter standard of
rational basis review” under our state constitution because “the challenged
classification appears to impose a substantially disproportionate burden on the
very class of persons whose history inspired the principles of equal protection.”
See State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991).
18

1405, 2003 WL 21921047, at *2–3 (Iowa Ct. App. Aug. 13, 2003). But these non-

binding cases predate the law’s change in 2017. The State fails to acknowledge

“changing conditions and circumstances may make a statute which was

constitutional when enacted unconstitutional in the sense that it could not be

enacted today.” Chicago & N.W. Ry. Co. v. Fachman, 125 N.W.2d 210, 215 (Iowa

1963). Not even our state legislature believes there is a rational basis for the old

law any more. Five years ago, the legislature reduced the sentencing disparity

between crack and powder cocaine from ten times to two-and-one-half times. As

Allen notes, in reducing the disparity, lawmakers from both sides of the aisle

recognized the outsized impact that severe punishment for crack cocaine has had

on Black Iowans.10

The State insists that the legislature’s lowering of the ratio was not an

acknowledgment of an equal protection problem—pointing to the continuing

disparity. But the two-and-one-half-to-one disparity still on the books does not

undermine Allen’s point. In its role, the legislature deals in compromises to reach

solutions. By contrast, our role as “the judicial department [is] to determine

‘whether any department has exceeded its constitutional functions; and to restrain

them from exceeding their power and authority.’” Luse v. Wray, 254

N.W.2d 324, 327 (Iowa 1977) (quoting 16 C.J.S. Constitutional Law § 144, at 688).

In refuting Allen’s equal protection challenge, the State claims that the

legislature, before 2017, could have rationally decided to punish crack-cocaine

10 See Floor Statements of Senator Janet Peterson (D-Des Moines) and Senator
Julian Garrett (R-Indianola), Senate Video 04/19/2017 at 7:54:15–77:55:40,
https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=sf445.
19

crimes more harshly because of the drug’s “unique threats.” Without citing any

supporting authority, the State asserts that because crack “can be sold in smaller

doses at cheaper prices, it poses a higher risk of consumption and marketability.

This in turn can produce violent competition among its traffickers, and an

unacceptable risk to Iowa communities.” The majority lands on a slightly different

rationale for the harsher punishment: crack is “more potentially addictive than

powder cocaine.”

In my view, neither the basis floated by State nor the one offered by the

majority meets of our constitution’s demands. In Iowa, rational basis “is not

toothless.” LSCP, LLLP v. Kay-Decker, 861 N.W.2d 846, 860 (Iowa 2015) (citing

Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 9 (Iowa 2004)). We must

remember “the deference built into the rational basis test is not dispositive because

this court engages in a meaningful review of all legislation challenged on equal

protection grounds by applying the rational basis test to the facts of each case.”

Varnum v. Brien, 763 N.W.2d 862, 879 (Iowa 2009).

In examining an equal protection claim under rational basis, “there is a point

beyond which the State cannot go . . . [it] may not resort to a classification that is

palpably arbitrary.” Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527 (1959).

To decide whether a classification is arbitrary, “we must take into consideration

matters of common knowledge and common report and the history of the times.”

Miller v. Boone Cnty. Hosp., 394 N.W.2d 776, 779 (Iowa 1986) (citation omitted).

Neither the majority’s concentration on crack’s addictive qualities nor the State’s
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focus on violence justifies the prior ten-to-one sentencing disparity condemning

Allen to another twenty-five years in prison.11

Let’s take the relative risks of addiction first. The bottom line in the 2007

report quoted by the majority is that “pharmacologically ‘both forms [of cocaine]

cause identical effects.’” See United States v. Gardner, 20 F. Supp. 3d 468, 472

(S.D.N.Y. 2014) (quoting United States Sent’g Comm’n, Rep. to Cong.: Cocaine

and Fed. Sent’g Pol’y at 62 (May 2007)); see also United States v. Lee, 468 F.

Supp. 3d 1103, 1108–09 (N.D. Iowa 2020) (citing Gardner approvingly). True, the

2007 report noted “the possibility, based largely on anecdotal evidence, that ‘the

risk of addiction and personal deterioration may be greater for crack cocaine than

for powder cocaine’ since the two are administered differently.” Gardner, 20 F.

Supp. 3d at 471–72. But the sentencing commission determined as early as 2002

that “[p]recisely quantifying this difference is impossible and, as a result,

determining an appropriate degree of punishment differential to account for any

difference in addiction potential is difficult.” Id. at 472 (quoting United States Sent’g

Comm’n, Rep. to Cong.: Cocaine and Fed. Sent’g Pol’y at 62 (May 2002)). As one

federal district court concluded: “At present, the claim that crack cocaine is more

addictive than powder cocaine because of the way it is administered remains in

the realm of conjecture, unsupported by any serious scientific study.” Id.

Like the risk of addiction, the State’s speculation about “violent competition

among [crack] traffickers” fails to supply a rational basis for the prior ten-to-one

11In Iowa, we assess “the credibility of the asserted factual basis for the challenged
classification rather than simply accepting it at face value.” LSCP, 861 N.W.2d at
860 (quoting Fitzgerald, 675 N.W.2d at 8, 8 n.4).
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sentencing disparity. The State points to no studies showing differing rates of

violence associated with crack and powder cocaine distribution. And even if the

State had identified such studies, it would be difficult to isolate the violence

associated with crack cocaine sales from other community influences. Indeed, “it

is well established that crack cocaine is preferred over powder cocaine in poor,

predominantly African–American communities, communities that have long tended

to suffer from higher levels of violent crime.” Id. at 472–73 (finding “no rational

support” for federal ratio of 18:1 and treating quantity of crack cocaine under

Gardner’s offenses as if it were equivalent quantity of powder cocaine under the

sentencing guidelines); see also United States v. Samas, No. 3:18-cr-00296

(JAM), 2021 WL 5996815, at *2 (D. Conn. Dec. 7, 2021) (“Of course, crack cocaine

is subject to far more severe penalties than powder cocaine, even though it has

long been clear that there is no good reason for this distinction and that the

distinction has a racially disproportionate impact.” (emphasis added)).

It is our constitutional obligation to determine whether the classifications

drawn in Iowa Code section 124.401 (2015) violate the state equal protection

clause. See Bierkamp v. Rogers, 293 N.W.2d 577, 581 (Iowa 1980) (discussing

article I, section 6 of the Iowa Constitution). “In so doing we accord considerable

deference to the judgment of the legislature. Yet this deference is not, in and of

itself, necessarily dispositive and changes in underlying circumstances may vitiate

any rational basis.” Id. Granted, classifications do not deny equal protection by

resulting in “some inequality.” Id. But, as here, if “the lines drawn do not rationally

advance a government purpose” the legislation defies the constitution. Because

Allen has shown that the ten-to-one difference in classification between offenders
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sentenced for possessing crack cocaine and offenders sentenced for possessing

powder cocaine bears no rational relationship to a legitimate government interest,

section 124.401 violates the equal protection clause of our state constitution.

Allen’s fifty-year term is unconstitutional, so I would reverse and remand for

resentencing.