[Congressional Record Volume 141, Number 154 (Friday, September 29, 1995)]
[Senate]
[Pages S14779-S14782]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     DISAPPROVE OF AMENDMENTS TO THE FEDERAL SENTENCING GUIDELINES

  Mr. COATS. Mr. President, I ask unanimous consent that the Senate now 
turn to the consideration of calendar No. 194, S. 1254, regarding crack 
sentences.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 1254) to disapprove of amendments to the Federal 
     Sentencing Guidelines relating to lowering of crack sentences 
     and sentences for money laundering and transactions in 
     property derived from unlawful activity.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill.


                           Amendment No. 2879

  Mr. COATS. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Indiana [Mr. Coats] for Mr. Kennedy 
     proposes an amendment numbered 2879.

  Mr. COATS. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:
       At the end of the bill, insert the following new section:

     SEC.   . REDUCTION OF SENTENCING DISPARITY.

       (a) Recommendations.--
       (1) In general.--The United States Sentencing Commission 
     shall submit to Congress recommendations (and an explanation 
     therefor) regarding changes to the statutes and Sentencing 
     Guidelines governing sentences for unlawful manufacturing, 
     importing, exporting, and trafficking of cocaine, and like 
     offenses, including unlawful possession, possession with 
     intent to commit any of the forgoing offenses, and attempt 
     and conspiracy to commit any of the forgoing offenses. The 
     recommendations shall reflect the following considerations:
       (A) the sentence imposed for trafficking in a quantity of 
     crack cocaine should generally exceed the sentence imposed 
     for trafficking in a like quantity of powder cocaine;
       (B) high-level wholesale cocaine traffickers, organizers, 
     and leaders, of criminal activities should generally receive 
     longer sentences than low-level retail cocaine traffickers 
     and those who played a minor or minimal role in such criminal 
     activity;
       (C) if the Government establishes that a defendant who 
     traffics in powder cocaine has knowledge that such cocaine 
     will be converted into crack cocaine prior to its 
     distribution to individual users, the defendant should be 
     treated at sentencing as though the defendant had trafficked 
     in crack cocaine; and
       (D) an enhanced sentence should generally be imposed on a 
     defendant who, in the course of an offense described in this 
     subsection--
       (i) murders or causes serious bodily injury to an 
     individual;
       (ii) uses a dangerous weapon;
       (iii) uses or possesses a firearm;
       (iv) involves a juvenile or a woman who the defendant knows 
     or should know to be pregnant;
       (v) engages in a continuing criminal enterprise or commits 
     other criminal offenses in order to facilitate his drug 
     trafficking activities;

[[Page S 14780]]

       (vi) knows, or should know, that he is involving an 
     unusually vulnerable person;
       (vii) restrains a victim;
       (viii) traffics in cocaine within 500 feet of a school;
       (ix) obstructs justice;
       (x) has a significant prior criminal record; or
       (xi) is an organizer or leader of drug trafficking 
     activities involving five or more persons.
       (2) Ratio.--The recommendations described in the preceding 
     subsection shall propose revision of the drug quantity ratio 
     of crack cocaine to powder cocaine under the relevant 
     statutes and guidelines in a manner consistent with the 
     ratios set for other drugs, and consistent with the 
     objectives set forth in 28 U.S.C. 3553(a).
       (b) Study.--No later than May 1, 1996, the Department of 
     Justice shall submit to the Judiciary Committees of the 
     Senate and House of Representatives a report on the charging 
     and plea practices of federal prosecutors with respect to the 
     offense of money laundering. Such study shall include an 
     account of the steps taken or to be taken by the Justice 
     Department to ensure consistency and appropriateness in the 
     use of the money laundering statute. The Sentencing 
     Commission shall submit to the Judiciary Committees comments 
     on the study prepared by the Department of Justice.

  Mr. KENNEDY. Mr. President, my amendment to the Abraham bill is 
designed to keep alive the hope that this Congress will someday soon 
address the festering issue of racial disparity in our Nation's cocaine 
sentencing laws.
  Few matters are as fundamental to the integrity of the judicial 
system as maintaining the confidence of the country that it is free 
from racial bias. That issue has been raised very clearly and very 
intensely in the O.J. Simpson trial. It is also raised in other serious 
ways, including by the controversy over the disparity in sentences 
involving the drug cocaine.
  Cocaine is one of the most addictive and dangerous of all illegal 
drugs, and those who traffic in it deserve tough, lengthy punishment. 
But if the criminal justice system is to command the respect of all 
Americans, punishment must not only be tough--it must be fair. Similar 
defendants must receive similar sentences. We must do all we can to 
ensure that the Federal criminal justice system is free from even the 
slightest taint of racial discrimination.
  In the 1980's, Congress passed a number of bills to respond 
aggressively to the drug crisis. But in at least one respect we may 
have inadvertently created an injustice--the much harsher sentences 
imposed for crack cocaine than for powdered cocaine.
  A mandatory minimum sentence of 5 years is imposed in current law 
based on the weight of the drug involved. But it takes 100 times more 
powdered cocaine to trigger the mandatory minimum sentence than crack 
cocaine.
  In other words, a defendant who sells five grams of crack cocaine 
receives the same mandatory minimum 5-year sentence as a defendant who 
sells 500 grams of powdered cocaine. Possession of five grams of crack 
is subject to a 5-year minimum sentence, but possession of five grams 
of powdered cocaine is subject to only a 1-year maximum sentence.
  The overwhelming view of scientists is that this disparity is 
unjustified. Powder and crack cocaine are two forms of the same drug. 
Their biological effects are similar. There is no justification for the 
preposterous 100 to 1 ratio in current law.

  But the issue goes beyond science. Blacks account for 88 percent of 
all defendants in crack cases, while blacks, whites, and Hispanics are 
equally likely to be defendants in powdered cocaine cases. As a result, 
the minimum sentences mandated for crack cases under the law are 
imposed overwhelmingly on black defendants.
  The current law has caused serious injustices in a number of cases. 
The Judiciary Committee heard testimony from Arthur Curry, a retired 
school principal, whose 19-year-old son was sentenced to 20 years 
without parole for playing a minor role in a drug conspiracy. The FBI 
called him a ``flunky'', with below-average intelligence. He had no 
prior criminal record. But the judge had no choice, and sent 19-year-
old Derrick Curry to Federal prison for the next 20 years. That young 
man's life is destroyed. He'll come out of prison in 20 years a 
hardened criminal, and the cost to the American taxpayer is enormous.
  And Derrick Curry is not alone. A 1994 Justice Department study found 
that 21 percent of all Federal prisoners are low-level, non-violent 
drug offenders.
  Last year, in response to cases like the Curry case, Congress 
directed the Sentencing Commission to study the cocaine issue. The 
Commission produced an excellent report that persuasively demonstrates 
the irrationality of the 100 to 1 ratio. The Commission has voted to 
eliminate the disparity, and to strengthen the guidelines in cases 
involving violence in drug trafficking.
  Congress created the Sentencing Commission for the express purpose of 
eliminating this kind of unwarranted sentencing disparity. The sponsors 
of the 1984 Sentencing Reform Act, including Senator Thurmond, Senator 
Hatch, Senator Biden, and myself, sought to make sense of the 
sentencing process and to solve the problem of similar defendants 
receiving grossly different sentences. The act specifically directed 
the Commission to ensure that the Federal sentencing system is racially 
neutral.
  The Commission has done an outstanding job. It has carefully examined 
the empirical and scientific data. It has compiled that information in 
a comprehensive report, and made appropriate adjustments in the 
guidelines. To simply reject the Commission's action is to repudiate 
the sensible process established in the 1984 Act to take politics out 
of sentencing.
  The Commission's proposal provides lengthy punishment for crack 
defendants based on conduct, not race. The proposed enhancements for 
using weapons during drug offenses mean that armed drug dealers will be 
punished more severely. On the average, crack defendants will still 
receive sentences that are 2\1/2\ times longer than defendants in 
powdered cocaine cases. But the defendants who receive that longer 
punishment will have earned it by their own conduct, and that's how it 
should be.

  The current disparity is also an example of a basic problem with all 
mandatory minimum sentences. Congress sets a minimum number of years 
for a certain crime, without reference to other crimes. A 5-year 
sentence for selling five grams of crack cocaine may have seemed 
appropriate to Congress in 1986, but it is illogical and 
disproportionate when compared to other sentences. With a Sentencing 
Commission and a guideline system in place, mandatory minimum 
sentencing laws are unnecessary and often counterproductive. Here, as 
elsewhere, they prevent the Commission from overseeing the sentencing 
system fairly.
  We've all heard from judges in our States about the problems caused 
by mandatory minimums. The crack cocaine issue is at the heart of those 
complaints. If we cannot solve this problem fairly, we may never 
achieve the goal of a rational sentencing system.
  The chief sponsor of the Commission's proposed amendment is Wayne 
Budd, a Republican who served as the third highest ranking official in 
President Bush's Justice Department. Before that, as the U.S. attorney 
in Massachusetts, Wayne Budd put many criminals behind bars. So when a 
person of Wayne Budd's credentials says that the 100-to-1 ratio is 
unfair, Congress should take careful notice.
  I support Wayne Budd's proposal to completely eliminate the 100-to-1 
disparity between crack and powder cocaine. But I recognize that a 1-
to-1 ratio is unacceptable to a majority of the Senate. Accordingly, I 
am reluctantly consenting to passage of the Abraham bill, which would 
reject the Commission's proposed 1-to-1 ratio. But in an attempt to 
maintain some momentum for change, my amendment would send the matter 
back to the Commission with specific directions, including a mandate to 
revise the ratio in a manner consistent with the ratios governing other 
illicit drugs.
  My amendment not only directs the Commission to change the cocaine 
sentencing ratio. It also instructs the Commission to ensure that 
cocaine defendants whose cases involve aggravated circumstances receive 
enhanced punishment. Unlike mandatory minimums, the guidelines already 
distinguish, for example, between violent and non-violent defendants, 
and my amendment would put the Senate firmly on record in favor of the 
toughest punishment for the worst criminals. 

[[Page S 14781]]

  We cannot close our eyes to the distrust with which many African-
Americans view the criminal justice system. When the realities behind 
that perception are identified, they must be remedied. Fixing this ill-
considered law is a good place to start, and we should let the 
Sentencing Commission stay on the job.
  Maybe a 1 to 1 ratio is unacceptable to the Senate. But if the 
Commission recommends a ratio of 5 to 1 or 10 to 1, I hold out hope 
that Congress will permit that change to become law.
  Finally, my amendment also attempts to salvage some progress toward 
fairness in the application of the money laundering statute.
  The current sentencing guidelines for this crime are flawed because 
they treat technical violations of the money laundering statute as 
seriously as complex, sophisticated financial crimes. For example, an 
elderly postal worker who steals a check and deposits it in the bank 
receives the same punishment as the financial manager of a major drug 
trafficking operation. The Commission's proposal ensures tough 
punishment for money laundering but distinguishes the culpability of 
different defendants.
  I support the Commission's proposal on money laundering, but as in 
the cocaine context, the will of the Senate is clearly to block this 
amendment due to the self-interested recommendation of the Justice 
Department. But here, as well, I am reluctant to simply let the 
Commission's good work perish in vain.
  My amendment, therefore, directs the Justice Department to report to 
Congress on the charging and plea practices of Federal prosecutors with 
respect to the money laundering statute. I intend to review that study 
carefully. And if it does not make a compelling case that the 
Department is addressing the problem itself, I will work to improve the 
statutes and the sentencing guidelines that cover this unduly elastic 
crime.
  It is inherently difficult for a legislature to grapple with the 
complex and politically sensitive subject of sentencing. We created a 
non-political, independent Commission in 1984 for that very reason. 
Passage of the Abraham bill marks the first time that the Senate has 
rejected major guideline amendments proposed by the Sentencing 
Commission, and that development bodes ill for the long-term vitality 
of the sentencing guideline scheme.
  Nonetheless, I retain hope that the decades-long effort to develop a 
fair and rational sentencing system will continue. The goal of 
equitable sentencing for the crimes of cocaine sentencing, money 
laundering and every other offense in the Federal code is not furthered 
by passage of this bill. But the goal remains in sight, and we must 
continue to pursue it.
  Mr. ABRAHAM. Mr. President, I accept the amendment of the Senator 
from Massachusetts. As is plain from its language, it does not request 
the Commission to send new guideline changes. Rather, it requests the 
Commission's recommendations for how the laws and guidelines should be 
changed. That is the course that in my view is appropriate for the 
Commission to take, since under current law, the sentences are largely 
dictated by mandatory minimums set by Congress. Accordingly, major 
changes in this area have to come from Congress, and until such changes 
are made the guidelines should conform with existing law. Thus, while 
the amendment does not detract from the Commission's existing statutory 
authority to propose amendments to the guidelines, that is not what the 
amendment asks the Commission to send us. Rather, the amendment merely 
asks for a policy recommendation.
  As I indicated on introducing this bill, I have some sympathy with 
some of the concerns the Commission has raised about present law. In 
particular, I am concerned that some powder defendants at the top of 
crack distribution networks seem to be getting lower sentences than 
retail distributors. I also think that while there is good reason for 
significant differential treatment of powder and crack, we should have 
a look more generally at whether the present differential represents 
the best policy.
  In my view, however, the Commission resolved these concerns the wrong 
way: by lowering sentences for crack, rather than by raising sentences 
for powder. Along with several of my colleagues, I would like to see 
these issues addressed from the other end: by raising the sentences for 
powder distribution. My specific proposal, embodied in the companion 
bill I sponsored along with Senators Kyl, Feinstein, Brown, and 
McConnell, is to lower the trigger for powder sentences from 500 to 100 
grams for mandatory 5-five year sentences, and from 5,000 to 1,000 
grams for mandatory 10 year sentences. I believe this resolution of the 
matter is entirely consistent with the criteria set out in Senator 
Kennedy's amendment.
  I should only add that I would be very concerned about any resolution 
of this matter that is predicated on the lowering of sentences for 
crack distributors. I believe that would send exactly the wrong 
message: that in the war against crack society blinked. I believe the 
amendment proposed by Senator Kennedy is entirely consistent with these 
views, and I therefore accept his amendment on that basis.
  Mr. Hatch. Mr. President, I rise today in support of the amendment to 
block reductions in penalties for crack dealing proposed by the U.S. 
Sentencing Commission. If the Congress does not act, those changes will 
take effect this November 1.
  According to the Department of Justice, which has also asked us to 
block implementation of the changes, the new penalty structure will 
make base sentences for crack anywhere from two to six times shorter 
than they are now. The Department of Justice written to tell us that 
they ``strongly support S. 1254'' which is ``very similar to our 
proposal.
  That is simply irresponsible public policy. It would send a terrible 
message both to crack dealers and to communities trying to fight back 
against the crack trade.
  No one, not even the Sentencing Commission, denies that the brunt of 
crack's social consequences have fallen on poor, urban, minority, 
residents. Given what crack has done to our cities, it frankly amazes 
me to hear people arguing for lower sentences. Especially from people 
who wouldn't for one moment tolerate an open-air crack market in their 
neighborhood in Scarsdale or Chevy Chase.
  The Commission's own report, moreover, acknowledges that crack's 
psychoactive effects are far more intense than powder cocaine, which 
means that crack is far more additive.
  Members of the Sentencing Commission are concerned that the current 
sentencing structure creates a perception of unfairness because most 
convicted crack dealers are Africans-Americans, whereas a majority of 
convicted powder dealers are white or Hispanic. I am sensitive to these 
concerns. This Congress will deal severely and aggressively with any 
indication that prosecution or sentencing is being driven by racial 
considerations. We will not tolerate any racial discrimination in our 
criminal justice system.
  But Mr. President, it is also important to remember that the number 
of people convicted for crack violations each year is just 3,430. I am 
more concerned, to be blunt, about the millions of people living in our 
cities whose quality of life is being ruined. These people have equal 
rights to safe neighborhoods.

  To those who say the Federal Government is locking up tens of 
thousands of nonviolent, low-level offenders, let me say this: We 
studied that question. What we found was that out of the 3,430 crack 
defendants convicted in 1994, the number of youthful, small-time crack 
offenders with no prior criminal history and no weapons involvement, 
sentenced in Federal courts, was just 51. The median crack defendant 
was convicted of trafficking 109 grams--more than 2,000 ``rocks'' or 
doses. Only 10 percent of crack defendants had trafficked less than 2-3 
grams of crack--the equivalent of 40-60 doses.
  And finally, on Tuesday, September 12, HHS released alarming figures 
showing drug use up sharply among our young people. Mr. President, this 
is not the time to be sending the message that we are weakening social 
sanctions against the drug trade.
  One additional point. The amendment would also block another set of 
proposed changes--relating to money laundering--offered by the 
Sentencing Commission. Here too, the Commission's amendments would 
dramatically lower the penalties for many money 

[[Page S 14782]]
laundering offenders, including those engaged in the laundering of 
proceeds of both financial and drug offenses.
  Under the current guidelines, for instance, an offender who launders 
$110,000 worth of proceeds would face a range of 37-46 months. Under 
the Commission's proposed changes, the guideline range would be just 
21-27 months in prison. An offender who laundered $110,000 worth of 
illegal drug proceeds would receive a sentence of 51-63 months under 
the current guidelines. The Commission's amendments would change that 
to 33-41 months.
  The money laundering guidelines need to be reviewed, but the changes 
recommended by the Commission are simply too sweeping. As with the 
amendments to lower crack sentences, the Department of Justice has 
urged us to reject the money laundering proposal.
  I urge my colleagues to join me in supporting this legislation.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 2879) was agreed to.
  Mr. COATS. I move to reconsider the vote.
  Mr. FORD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading, was read 
the third time, and passed, as follows:

                                S. 1254

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. DISAPPROVAL OF AMENDMENTS RELATING TO LOWERING OF 
                   CRACK SENTENCES AND SENTENCES FOR MONEY 
                   LAUNDERING AND TRANSACTIONS IN PROPERTY DERIVED 
                   FROM UNLAWFUL ACTIVITY.

       In accordance with section 994(p) of title 28, United 
     States Code, amendments numbered 5 and 18 of the ``Amendments 
     to the Sentencing Guidelines, Policy Statements, and Official 
     Commentary'', submitted by the United States Sentencing 
     Commission to Congress on May 1, 1995, are hereby disapproved 
     and shall not take effect.

     SEC. 2. REDUCTION OF SENTENCING DISPARITY.

       (a) Recommendations.--
       (1) In general.--The United States Sentencing Commission 
     shall submit to Congress recommendations (and an explanation 
     therefor), regarding changes to the statutes and sentencing 
     guidelines governing sentences for unlawful manufacturing, 
     importing, exporting, and trafficking of cocaine, and like 
     offenses, including unlawful possession, possession with 
     intent to commit any of the forgoing offenses, and attempt 
     and conspiracy to commit any of the forgoing offenses. The 
     recommendations shall reflect the following considerations--
       (A) the sentence imposed for trafficking in a quantity of 
     crack cocaine should generally exceed the sentence imposed 
     for trafficking in a like quantity of powder cocaine;
       (B) high-level wholesale cocaine traffickers, organizers, 
     and leaders, of criminal activities should generally receive 
     longer sentences than low-level retail cocaine traffickers 
     and those who played a minor or minimal role in such criminal 
     activity;
       (C) if the Government establishes that a defendant who 
     traffics in powder cocaine has knowledge that such cocaine 
     will be converted into crack cocaine prior to its 
     distribution to individual users, the defendant should be 
     treated at sentencing as though the defendant had trafficked 
     in crack cocaine; and
       (D) an enhanced sentence should generally be imposed on a 
     defendant who, in the course of an offense described in this 
     subsection--
       (i) murders or causes serious bodily injury to an 
     individual;
       (ii) uses a dangerous weapon;
       (iii) uses or possesses a firearm;
       (iv) involves a juvenile or a woman who the defendant knows 
     or should know to be pregnant;
       (v) engages in a continuing criminal enterprise or commits 
     other criminal offenses in order to facilitate his drug 
     trafficking activities;
       (vi) knows, or should know, that he is involving an 
     unusually vulnerable person;
       (vii) restrains a victim;
       (viii) traffics in cocaine within 500 feet of a school;
       (ix) obstructs justice;
       (x) has a significant prior criminal record; or
       (xi) is an organizer or leader of drug trafficking 
     activities involving five or more persons.
       (2) Ratio.--The recommendations described in the preceding 
     subsection shall propose revision of the drug quantity ratio 
     of crack cocaine to powder cocaine under the relevant 
     statutes and guidelines in a manner consistent with the 
     ratios set for other drugs and consistent with the objectives 
     set forth in section 3553(a) of title 28 United States Code.
       (b) Study.--No later than May 1, 1996, the Department of 
     Justice shall submit to the Judiciary Committees of the 
     Senate and House of Representatives a report on the charging 
     and plea practices of Federal prosecutors with respect to the 
     offense of money laundering. Such study shall include an 
     account of the steps taken or to be taken by the Justice 
     Department to ensure consistency and appropriateness in the 
     use of the money laundering statute. The Sentencing 
     Commission shall submit to the Judiciary Committees comments 
     on the study prepared by the Department of Justice.

  Mr. COATS. I move to reconsider the vote.
  Mr. FORD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________