[Congressional Record Volume 147, Number 178 (Thursday, December 20, 2001)]
[Senate]
[Pages S13961-S13965]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SESSIONS (for himself and Mr. Hatch):
  S. 1874. A bill to reduce the disparity in punishment between crack 
and powder cocaine offenses, to more broadly focus the punishment for 
drug offenders on the seriousness of the offense and the culpability of 
the offender, and for other purposes; to the Committee on the 
Judiciary.
  Mr. SESSIONS. Mr. President, I send to the desk a bill entitled the 
Drug Sentencing Reform Act of 2001. This bill provides a measured and 
balanced approach to improving the statutory and guidelines system that 
governs the sentencing of drug offenders.
  This bill makes two important changes to our Federal sentencing 
system for drug offenders: First, it reduces the disparity in sentences 
for crack and powder cocaine from a ratio of 100-to-1 to 20-to-1. It 
does so by reducing the penalty for crack and increasing the penalty 
for powder cocaine.
  Second, the bill shifts some of the sentencing emphasis from drug 
quantity to the nature of the criminal conduct, the degree of the 
defendant's criminality. The bill increases penalties for the worst 
drug offenders that use violence and employ women and children as 
couriers to traffic drugs. The bill decreases mandatory penalties on 
those who play only a minimal role in a drug trafficking offense, such 
as a girlfriend or child of a drug dealer who receives little 
compensation.
  In short, this bill will make measured and balanced improvements in 
the current sentencing system to ensure a more just outcome, tougher 
sentences on the worst and most violent drug offenders and lighter 
sentences on lower-level, nonviolent offenders.
  To understand the changes that I propose, it is necessary to review 
how we got to the present system.
  Prior to the promulgation of the Sentencing Guidelines in 1984, 
judges in the Federal court system had very broad discretion to 
sentence drug offenders. Because judges had different views on 
sentencing, one defendant who committed a crime could receive parole 
while another defendant guilty of the exact same criminal conduct could 
receive literally 20 years in prison. See, e.g., United States 
Sentencing Commission, Guidelines Manual 2 (Nov. 2000).
  Further, because of the existence of the parole system, convicts 
generally served only one-third of the sentence announced by the judge. 
Id. There was no truth in sentencing. Thus, the old sentencing system 
lacked uniformity, honesty, and certainty.
  In 1984, a bipartisan Congress enacted and President Reagan signed 
the Sentencing Reform Act as part of the Comprehensive Crime Control 
Act, Pub. L. No. 98-473, Title II, 98 Stat. 2019 (1984). The Sentencing 
Reform Act created the Sentencing Commission and instructed it to 
promulgate sentencing guidelines that would provide more effective, 
more uniform, and more fair sentences. See generally United States 
Sentencing Commission, Guidelines Manual 2 (Nov. 2000). As part of this 
reform, Congress abolished the parole system and substantially reduced 
good behavior adjustments. Id. at 1.
  The Sentencing Commission went to work in studying empirical data on 
average sentences imposed for various crimes prior to the Sentencing 
Reform Act. See United States Sentencing Commission, Guidelines Manual 
9-10 (Nov. 2000). It then made adjustments for acceptance of 
responsibility and provision of substantial assistance to the 
government. Id. at 10.
  On April 13, 1987, the Sentencing Commission submitted its first set 
of Sentencing Guidelines to Congress. See United States Sentencing 
Commission, Guidelines Manual 1 (Nov. 2000). After the prescribed 
period, the Guidelines took effect on November 1, 1987, and applied to 
all offenses committed on or after that date. Id. at 1.
  In applying the Guidelines to a particular case, a judge must 
generally:
  1. Determine the base offense level for the offense of conviction;
  2. Apply applicable adjustments for the type of victim, the 
defendant's role in the offense, and whether the defendant obstructed 
justice;
  3. Determine the defendant's criminal history category; and
  4. Determine the guideline range based on the defendant's offense 
level and criminal history category. See U.S.S.G. Sec. 1B1.1 (2000).
  After all the factors are considered, the judge is required to 
sentence within a narrow range.
  Thus, the promulgation of the Sentencing Guidelines and the repeal of 
the parole system promoted uniformity, honesty, and certainty in 
sentencing.
  In 1989, in Mistretta v. United States, 488 U.S. 361 (1989), the 
Supreme Court upheld the constitutionality of the Sentencing 
Guidelines. Thus, Federal prosecutors, criminal defense attorneys, and 
Federal judges have been applying the Sentencing Guidelines for over a 
decade.

[[Page S13962]]

  In setting the guideline ranges for particular offenses, the 
Sentencing Commission has to take into account any minimum or maximum 
sentences established by Congress.
  In 1986, Senator Dole introduced on behalf of the Reagan 
administration the Drug-Free Federal Workplace Act of 1986. S. 2849, 
99th Cong. 2d Sess. Sec. 502 (1986). See United States Sentencing 
Commission, Special Report to Congress: Cocaine and Federal Sentencing 
Policy 117 (1995). That bill proposed several mandatory minimum 
sentences for drug trafficking offenses based on the quantity of the 
drug involved in the offense.
  Under the bill, 500 grams of powder cocaine would have triggered a 5-
year mandatory minimum, while it would have taken 25 grams of crack to 
trigger the same 5-year mandatory minimum. This was a 20-to-l ratio of 
powder to crack.
  Ultimately, Congress passed and President Reagan signed the Omnibus 
Anti-Drug Abuse Act of 1986 that set tough mandatory minimum sentences 
for various quantities of illegal drugs. Pub. L. No. 99-570, 100 Stat. 
3207 (1986). With respect to cocaine, the law was amended to provide 
that a 5-year mandatory minimum sentence would be triggered by 
trafficking just 5 grams of crack cocaine or by trafficking 500 grams 
of powder--a 100-to-1 ratio. 21 U.S.C. Sec. 841(b)(1)(B)(ii) & (iii). A 
10-year mandatory minimum sentence was imposed for trafficking 50 grams 
of crack or 5 kilograms of powder cocaine, again a 100-to-1 ratio. 18 
U.S.C. Sec. 841(b)(a)(A)(ii) & (iii).
  Congress, and those of us in the law enforcement field at the time 
believed that there was substantial justification for a large 
differential between crack and powder cocaine. Because crack was cheap, 
addictive, and believed to serve as a catalyst for crime, Congress 
wanted to keep it off the streets and out of poor neighborhoods, which 
were largely minority neighborhoods. Congress sought to accomplish this 
with stiff penalties. See United States Sentencing Commission, Special 
Report to Congress: Cocaine and Federal Sentencing Policy 115-21 (1995) 
(discussing legislative reasons for crack and powder cocaine 
sentences). Congressman Charles Rangel of New York, stated in 1986:

       We all know that crack is the newest and most insidious 
     addition to the drug culture. It is cheaper than cocaine, and 
     more addictive. Young people who experiment with crack often 
     become habitual users because of its highly concentrated 
     narcotic effect. They become addicts before they know what is 
     happening.--132 Cong. Rec. H3515-02 (1986) statement of Rep. 
     Rangel).

  Congressman Rangel, who chaired the Select Committee on Narcotics 
Abuse and Control, called drug dealers

     the entrepreneurs of dealing with the sale of death on the 
     installment plan. (They) have now, in a very sophisticated 
     way, packaged crack which allows our younger people for 
     smaller amounts of money to become addicted.--``Crack,'' 
     Cocaine Derivative, Called Serious Health Threat, Houston 
     Chronicle, July 16, 1986.

  Senator Lawton Chiles of Florida was one of the leaders in the Senate 
on the fight against crack. He stated:

       The whole Nation now knows about crack cocaine. They know 
     it can be bought for the price of a cassette tape, and make 
     people into slaves. It can turn promising young people into 
     robbers and thieves, stealing anything they can to get the 
     money to feed their habit.--132 Cong. Rec. S 26446, 26447 
     (1986) (statement of Sen. Chiles).

  Senator Chiles also stated with regard to the bill imposing the heavy 
penalties on crack,

       The Senate bill contained the Democratic three-tiered 
     penalty system which will impose mandatory sentences and 
     large fines against major drug traffickers and kingpins. . . 
     . I am very pleased that the Senate bill recognizes crack as 
     a distinct and separate drug from [powder] cocaine. . . .--
     132 Cong. Rec. S14270-01 (1986) (statement of Sen. Chiles).

  A principal reason for the 1986 crack law was to keep crack from 
spreading across America and to keep it out of our neighborhoods, 
especially minority neighborhoods.
  Congress continued to follow this line of reasoning in 1988, when it 
passed and President Reagan signed into law the Anti-Drug Abuse Act. 
Pub. L. No. 100-690, 102 Stat. 4181 (1988). In addition to the 
mandatory minimum penalties enacted in 1986 for the trafficking in 
crack cocaine and other drugs, this act added a mandatory minimum 
sentence of 5 years for the simple possession of crack cocaine. 21 
U.S.C. Sec. 844.
  Mandatory minimum sentences at the Federal and State levels for 
various crimes have generally been successful. They have reflected the 
seriousness with which we as a society take certain crimes and they 
have reduced crime by keeping recidivist criminals off the streets for 
longer periods of time. A 1982 Rand study reported that some repeat 
offenders committed 232 burglaries per year and some committed 485 
thefts per year. See Jan M. Chaiken & Marcia R. Chairken, Varieties of 
Criminal Behavior 44 (Rand 1982). By locking up these repeat offenders, 
we could prevent a crime a day in some cases.
  This effort to lock up the worst offenders has resulted in a 
substantial increase in Federal and State prison populations. In fact, 
since 1990 our State and Federal prison populations have increased by a 
total of 79 percent. See Bureau of Justice Statistics, Prisoners in 
2000 1 (2001).
  And mandatory minimums did not operate alone. We also made progress 
in reducing drug use, a cause of crime, down to very low levels. With 
solid leadership and antidrug education programs we drove drug use by 
young people down. The University of Michigan's Monitoring the Future 
Study showed that drug use among 12th grade school children dropped by 
76 percent from 1986 to 1992. Lloyd D. Johnston, et al. Monitoring the 
Future: National Results on Adolescent Drug Use 14 (Univ. of Mich. 
2000).
  This dual approach of locking up recidivists and reducing drug use 
drove crime rates down. From 1990 to 1999, the crime index offenses 
reported by the FBI, including property crimes and violent crimes, fell 
to their lowest level since 1973. See Federal Bureau of Investigation, 
Crime in the United States--1999 6(2000) (stating that crime index 
offenses for 1999 were the lowest since 1973); Federal Bureau of 
Investigation, Uniform Crime Reports 2000 1(2001), stating that during 
2000, crime index offenses remained stable. Thus, the War on Drugs and 
the War on Crime that began in the mid and late 1980s bore fruit in the 
1990s.
  That the system put in place in the 1980s produced good results in 
general, does not mean that it is perfect. With respect to drug 
sentencing in particular, the primary focus of the mandatory minimums 
and the Sentencing Guidelines on quantity has resulted in a blunt 
instrument that data now shows is in need of refinement.
  Since the establishment of mandatory minimums for drug trafficking, 
the Bureau of Prisons published a study on the recidivism of federal 
prisoners convicted for various offenses. Federal Bureau of Prisons, 
Recidivism Among Federal Prison Releases in 1987: A Preliminary Report 
(1994). For those prisoners convicted of general drug crimes and 
released after serving their terms, 34.2 percent were rearrested within 
3 years. Id. at 12. For those convicted of firearm and explosive 
crimes, 48.6 percent were rearrested. Id. For those who committed 
crimes against the person, such as robbery or violent assault, 65 
percent were rearrested. Id. Thus, possession of dangerous weapons and 
violence appear to be better indicators of recidivism than the quantity 
of drugs possessed or distributed.
  The 1986 mandatory minimums based on the quantity of crack cocaine 
sold or possessed, while appropriately reflecting that drug's more 
serious effects, failed to keep crack off the streets. The use of crack 
had grown rapidly in the early and mid-1980s and by 1987 and 1988, 
crack was available across America, including my home town of Mobile, 
AL, and small towns all over Alabama. See, e.g., Lloyd D. Johnston, et 
al. Monitoring the Future: National Results on Adolescent Drug Use 16 
(Univ. of Mich. 2000) (noting that crack use grew rapidly from 1983-
1986); James Coates & Robert Blau, Big-City Gangs Fuel Growing Crack 
Crisis, Chicago Tribune, Sept. 13, 1989, at C1, noting that crack use 
began in Fort Wayne, IN, in 1986 and spread rapidly through that city. 
Though the tough penalties did not stop the geographical spread of 
crack, they did, in my opinion, play a role in slowing the rate of 
increase in use that would have occurred without the tough penalties.
  The mandatory minimums for crack were intended to protect minority 
neighborhoods from the spreading influence of crack. Still, the tough 
penalties for crack created the appearance

[[Page S13963]]

of racial bias because the distributors and users of crack are largely 
African-American.
  Parenthetically, let me note that criminal statutes, as they are 
written, are not biased, they simply required punishment for those who 
break them regardless of race, sex, nationality, or religion. Thus, 
just because more males commit Federal crimes than females, it is not 
unfair or sexist to punish males with all the severity society 
concludes is necessary to stop or reduce crimes that both sexes commit. 
See United States Sentencing Commission, 2000 Sourcebook of Federal 
Sentencing Statistics 15 (Table 5) (reporting that 85.7 percent of 
Federal offenders are male and 14.3 percent are female).
  Because everyone knows that crack carries heavy penalties, I cannot 
conclude that it is discriminatory to punish all who possess or 
distribute it with equal severity. My experience does lead me to 
conclude, however, that where an overwhelming majority of those 
convicted of crack offenses are African-American, and the penalties for 
crack offenses are the most severe, we should listen to fair-minded 
people who argue that these sentences fall too heavily on African-
Americans.
  One of the facts used in the argument for changing crack sentences is 
the percentage of crack defendants that are African-American. In 1995, 
the Sentencing Commission issued report showing that of the defendants 
convicted for crack cocaine offenses, 88.2 percent were African-
American. United States Sentencing Commission, Cocaine and Federal 
Sentencing Policy 152 (1995). Of the persons sentenced for powder 
cocaine offenses, 32 percent where white, 27.4 percent African-
American, and 37 percent Hispanic, Id.
  This generated stories in newspapers, like one from the Birmingham 
Post-Herald that reported:

       At first, many of the nation's black leaders supported the 
     hard line against drugs. Inner-city church ministers decried 
     the crack epidemic that seemed to blaze through 
     their neighborhoods. But as the disparities in jail 
     sentences became increasingly obvious, support for the 
     policy dried up among many blacks. . . .''--Thomas 
     Hargrove, Drug's Form Influences Length of Sentence, 
     Birmingham Post-Herald, Nov. 17, 1997, at A1, A9 
     (describing differences in punishments for crack and 
     powder cocaine).

  As data from the Sentencing Commission became available during the 
mid-1990s, many federal and state officials, including myself, began to 
doubt whether the 100-to-1 ratio between powder and crack cocaine 
continued to be justifiable.
  We in the public service asked ourselves: ``If in light of our 
experience, we can conclude that crack sentences are disproportionately 
severe, why should we not act to improve them?''
  In 1995 and 1997, the Sentencing Commission unanimously concluded 
that the crack-powder disparity was no longer justified. See United 
States Sentencing Commission, Cocaine and Federal Sentencing Policy 
198-200 (1995); United States Sentencing Commission, Special Report to 
the Congress: Cocaine and Federal Sentencing Policy 2 (1997).
  Moreover, in 1995, the Sentencing Commission, most of the members of 
which are federal judges, passed two amendments to the Guidelines to 
reduce the disparity in sentences between crack and powder cocaine. 
Specifically, the amendments would have adopted a starting point for 
the guidelines of equal amounts of crack and powder cocaine--a 1-to-1 
ratio at the 500-gram level, and would have provided a sentencing 
enhancement for violence and other harms associated with crack cocaine. 
See United States Sentencing Commission, Cocaine and Federal Sentencing 
Policy 1 (1997). Congress, however, passed and President Clinton signed 
a law that rejected the amendments and directed the Sentencing 
Commission to study the issue more thoroughly. Pub. L. No. 104-38, 109 
Stat. 334 (1995).
  In 1997, the Sentencing Commission responded with a study entitled, 
``Cocaine and Federal Sentencing Policy.'' The study recommended a 
reduction in the crack-powder differential from 100-1 to approximately 
5-to-1. United States Sentencing Commission, Cocaine and Federal 
Sentencing Policy 9 (1997). Specifically, the Commission recommended to 
Congress that the trigger points for the 5-year mandatory minimum for 
powder be lowered from 500 grams to a range of 125 to 375 grams and for 
crack be raised from 5 grams to a range of 25 to 75 grams. Id.
  Moreover, some judges who did not sit on the Sentencing Commission 
began speaking out against the crack-powder differential. See, e.g., 
Pete Bowles, Judge Known for Unusual Sentences, Newsday, May 22, 1998, 
at A39 (quoting Judge Jack Weinstein as characterizing the Sentencing 
Guidelines as ``cruel, excessive and unnecessary,'' and saying, ``I 
simply cannot sentence another impoverished person whose destruction 
has no discernible effect on the drug trade''). And some have said that 
judges may have used downward departures more often than they should 
have to reduce drug sentences to a level that they view as more just. 
Indeed, Professors Frank Bowman and Michael Heise, citing a downward 
trend in drug sentences have stated, ``a pervasive disposition toward 
discretionary evasion of Guideline and statutory law has important 
implications for the ongoing struggle among the courts, the Justice 
Department, the Congress, and the Sentencing Commission for control of 
sentencing policy.'' See Frank O. Bowman III & Michael Heise, Quiet 
Rebellion? Explaining Nearly a Decade of Declining Federal Drug 
Sentences, 86 Iowa L. Rev. 1043, 1049-50 (2001).
  To date, however, Congress has declined to address the issue. Many 
say it is because of a fear of being called ``soft on crime.'' 
Regardless, we can wait no longer. Based on our experience, the strong 
position of the Sentencing Commission, which is not a ``soft on crime'' 
group, and plain fairness, we must act. Congress' refusal to act, in my 
view, has been unfortunate.
  And in light of our experience, we can conclude that crack sentences 
are disproportionately severe, why should we not act to improve them? 
To improve these guidelines, to fix them where they are broken, is to 
strengthen the system, to reduce judicial manipulation, and to restore 
confidence in the system's fairness.
  We must remember, however, that the goals of the drug sentencing are 
still valid today, to save babies from being addicted to the drugs 
their mothers take during pregnancy, to save teenagers from wasting 
their youth on drugs that lead to crime, to save young girls from being 
forced into prostitution to feed a habit, and to save adults from 
wasting their lives on nonproductive and damaging drugs.
  I challenge any of you to visit a drug court and look at the 
defendants before and after the drug court program. The transformation 
from a hopeless criminal on drugs to productive citizen off of drugs 
will convince anyone of the danger and destructiveness of illegal 
drugs.
  Does an easing of these tough sentences, but not gutting of them, 
carry risks. Some, but not much:
  1. Some will say that it represents proof that the war against drugs 
is a failure, but as I just explained, the War on Drugs is just as 
worthy a cause today as it used to be;
  2. Some will say that we are less serious, but a balanced reform will 
treat dangerous crimes more seriously;
  3. Some will say that it may ease a bit the pressure a prosecutor can 
put on a drug dealer to cooperate, but a balanced approach will retain 
sufficient leverage for a prosecutor to do his job justly;
  4. Some will say that heavy sentences have had some ability to reduce 
distribution, but of course, after a modest decrease the penalties will 
remain tough.
  After thoughtful review, and consideration in light of my own 
experience in prosecuting drug offense, I have concluded that we must 
reform the justness of our means to match the legitimacy of our goals. 
We must restore justness to sentencing for crack trafficking and other 
drug crimes which will maintain public confidence in the federal 
government's anti-drug efforts and make those efforts more rational and 
justifiable.
  Today, I propose a bill to make two modest changes to the current 
sentencing system:
  First, the bill will reduce the crack-powder sentencing disparity 
from the current 100-to-1 ratio to a 20-to-1 ratio--the same ratio 
proposed by the Reagan Administration in 1986. This bill would trigger 
the 5-year mandatory minimum sentence for trafficking at 20 grams of 
crack--not 5 grams--and at 400 grams of powder cocaine--not 500

[[Page S13964]]

grams. The 10-year mandatory minimum would be triggered by trafficking 
200 grams of crack and by trafficking 4 kilograms of powder.
  The reduction in the amount of powder cocaine required to trigger the 
mandatory minimum from 500 grams to 400 grams reflects that 400 grams 
is almost a pound of cocaine--a large amount--worth well over $10,000. 
Also, this increase in the penalty for powder cocaine reflects that 
powder cocaine is imported and used as the raw material used to make 
crack. United States Sentencing Commission, Special Report: Cocaine and 
Federal Sentencing Policy vi (1995). Finally, the increased penalty 
responds to the powder cocaine use rates among high school students.
  According to the University of Michigan Study entitled Monitoring the 
Future, powder cocaine use among 12th grade students had risen by 61.3 
percent from 1992 to 2000, although there was a slight decline from 
1999 to 2000. Further, more than twice as many 12th grade students used 
powder cocaine than crack in 1992 and in 2000.

                          12TH GRADERS DRUG USE
                              [In percent]
------------------------------------------------------------------------
                   Drug                       1992      2000     Change
------------------------------------------------------------------------
Powder....................................       3.1       5.0      61.3
Crack.....................................       1.5       2.2      46.7
Percent Greater...........................     106.7               127.2
------------------------------------------------------------------------

  See Lloyd D. Johnston, Monitoring the Future: National Results on 
Adolescent Drug Use 14 (Univ. of Mich. 2000) (Table 2).
  We need to discourage those who are dealing powder cocaine to our 
high school students and those who are providing a supply market of 
powder cocaine that enable the manufacture of crack. This bill does 
this by providing a small increase in the penalty for powder cocaine.
  The bill's decrease in the penalty for crack reflects that a 
principal reason for creating the much more severe sentence on crack, 
to prevent the spread of crack use, has failed. Crack is used 
throughout America.
  The bill's approach of narrowing, but not eliminating, the sentencing 
disparity between crack and powder cocaine by changing the penalties 
for both drugs parallels the 1997 Sentencing Commission recommendation 
of increasing penalties and decreasing penalties on crack. United 
States Sentencing Commission, Special Report to Congress: Federal 
Sentencing Policy 9 (1997). Further, it is consistent with the 
bipartisan Act of Congress that President Clinton signed in 1995 
rejecting the Sentencing Commission's attempt to equalize the penalties 
for crack and powder cocaine. That act stated, ``the sentence imposed 
for trafficking in a quantity of crack cocaine should generally exceed 
the sentence imposed for trafficking a like quantity of powder 
cocaine.'' Pub. L. No. 104-38, 104th Cong. 1st Sess. Sec. 2(a)(1)(A) 
(1995). The bill changes the penalties for crack and powder to reduce 
the 100-to-1 disparity, but retains a reasonable distinction, a 20-to-1 
ratio, between crack and powder.
  The bill also reduces the 5-year mandatory minimum penalty for the 
simple possession of 5 grams of crack to just 1 year. This reflects 
that crack is a more serious drug than most other drugs, but that the 
sentence need not be unjustifiably harsh.
  Second, the bill increases emphasis on defendant's criminality, as 
opposed to a heavy emphasis on the quantity of drug involved. This bill 
requires a sentencing enhancement for violence or possession of a 
firearm, or other dangerous weapon, associated with a drug trafficking 
offense. This reflects that use of a dangerous weapon or violent action 
results in higher recidivism rates than drug use along. See Federal 
Bureau of Prisons, Recidivism Among Federal Prison Releases in 1987: A 
Preliminary Report 12 (1994).
  Further, the bill requires an additional enhancement if the defendant 
is an organizer, leader, manager, or supervisor in the drug trafficking 
offense and a ``superaggravating'' factor applies. Superaggravating 
factors include using a girlfriend or child to distribute drugs, 
maintaining a crack house, distributing a drugs to minor, an elderly 
person, or a pregnant woman, bribing a law enforcement official, 
importing drugs in the United States from a foreign country, or 
committing the drug offense as a part of a pattern of criminal conduct 
engaging in as a livelihood. These sentencing enhancements will apply 
to offenses involving cocaine, methamphetamines, marijuana, and all 
illegal drugs.
  Aside from the girlfriend factor, many of the superaggravating 
factors are already available in certain cases. The bill would employ 
these punishments in drug cases as sentencing enhancements, instead of 
statutory penalties, thus allowing a Federal prosecutor to obtain 
the tougher penalty by proving the superaggravating criminal conduct by 
a preponderance of the evidence rather than beyond a reasonable doubt. 
Further, the bill will make some enhancements easier to establish. For 
example instead of proving that a victim had a particular vulnerability 
to a crime, a prosecutor could simply show that the victim was 16 years 
old.

  The offenders to which these sentencing enhancements apply are the 
most culpable members of the drug trade that prey on young women, 
school children, and the elderly, and bring violence into our 
neighborhoods. Their sentences should reflect the criminality of their 
conduct, not simply the quantity of drugs with which they are caught.
  While providing sentencing increases for the worst offenders, the 
bill limits the impact of mandatory minimums on the least dangerous 
offenders. The bill caps the drug quantity portion of a sentence for a 
defendant who plays a minimal role at 10 years, base offense level 32 
under the Sentencing Guidelines. This is very significant because 
couriers, who are often low-level participants in a drug organization, 
can have disproportionate sentences of 20 or 30 years simply because 
they are caught with a large amount of drugs in their possession. By 
capping the impact of drug quantity on the minimal role offenders, the 
bill allows a greater role for the criminality, or lack of criminality, 
of their conduct in determining their ultimate sentence.
  For example, the bill provides a decrease for the super-mitigating 
factor of the girlfriend or child who plays a minimal role in the 
offense. These are often the most abused victims of the drug trade, and 
we should not punish them as harshly as the drug dealer who used them.
  Existing adjustments could then be made for factors such as the role 
in the offense, acceptance of responsibility, and provision of 
substantial assistance to the government.
  The bill also establishes a 3-year pilot program for placing elderly, 
nonviolent prisoners in home detention in lieu of prison. It allows the 
Attorney General to designate 1 or more Federal prisons at which 
prisoners who meet the following criteria could be placed in home 
detention.
  The prisoner: 1. is at least 65 years old; 2. has served the greater 
of 10 years or one-half of his sentence; 3. has never committed a 
Federal or State crime of violence; 4. is not determined by the Bureau 
of Prisons to have a history of violence or to have committed a violent 
infraction while in prison; and 5. has not escaped or attempted to 
escape.
  My experience tells me, that elderly prisoners who are nonviolent and 
who have served a substantial amount of their sentence generally pose 
no threat to the community. Removing them from prison and placing them 
in home detention could save the federal government money and free up 
space to house the most dangerous criminals.
  The bill, however, would require an independent study on recidivism 
and cost savings. At the end of 3 years, Congress could decide whether 
to continue or expand the pilot program.
  There are those on the Left of the political spectrum who want to 
substantially restrict or even repeal mandatory minimums for some drug 
offenders and oppose all drug penalty increases. I firmly disagree with 
such an approach. The Sentencing Guidelines and mandatory minimum 
statutes have been a critical component of a criminal justice system 
that treats equal conduct equally. It increases deterrence because 
criminals know they will not be able to talk themselves out of jail. It 
is a great system. By following the balanced approach that I have 
proposed, we improve the guidelines and improve sentencing. My goal is 
to have our sentencing system consistently impose the right sentence to 
incapacitate, deter, punish, and rehabilitate the criminal. Because 
Congress has set the rules, we

[[Page S13965]]

must act to improve them. The courts cannot do it for us.

  There are those on the Right side of the political spectrum, however, 
who do not want to decrease any drug penalty whatsoever. While I 
respect their view, I can not embrace it. The mandatory minimums have 
been in effect since 1986 and the Sentencing Guidelines have been in 
effect since 1987. We are not in a position to reflect on what the 
effects have been.
  As we have seen from experience, the 100-to-1 disparity in sentencing 
between crack cocaine and power cocaine, which falls the hardest on 
African-Americans, is not justifiable. See, e.g., 145 Cong. Rec. S. 
14452-14453 (1999), (statement of Sen. Sessions,to-1 ratio is a 
movement in the right direction,'' but questioning whether solely 
increasing penalties on crack was justifiable). It is simply unjust.
  Further, the focus of the drug sentencing system on quantity of 
drugs, which has sent the girlfriends of drug dealers, who act as mere 
couriers, to prison for long terms, should be adjusted to increase the 
emphasis on the criminality of conduct. This will free up prison space 
for violent drug offenders.
  Trust me on this. The federal drug sentences are tough. In practice--
as they play out in actual time served, they are tougher than any State 
drug sentences that I know of. This legislation will in no way change 
the seriousness with which drugs are taken. Please know that I will 
resist with all the force I can muster any attempt to destroy or 
undermine the integrity or effectiveness of the Sentencing Guidelines. 
This bill simply targets the toughest sentences to those who deserve it 
most.
  The Drug Sentencing Reform Act of 2001 takes a measured and balanced 
approach to modifying the sentencing system that we have used for over 
a decade. By increasing penalties on the worst offenders and decreasing 
penalties on the least dangerous offenders, we will increase the focus 
of our law enforcement resources on the drug traffickers that endanger 
our families and decrease the focus on those defendants who pose less 
danger.
  I commend this bill to my colleagues to study and debate. I challenge 
them to cast aside the politics of the Left and the Right and to 
support this bill on the merits as a matter of plain, simple justice.
  Mr. HATCH. Mr. President, I rise today to speak briefly on the 
legislation that my good friend from the State of Alabama, Senator 
Sessions, has introduced today. That legislation, the ``Drug Sentencing 
Reform Act of 2001,'' addresses the disparity between sentences handed 
down to those who traffic in power cocaine and those who traffic in 
crack cocaine. I am proud to cosponsor this bill, and I hope that we 
can promptly act on it when we return next year.
  This legislation provides a balanced and measured solution to the 
disparity problem without undermining our efforts to pursue 
relentlessly those who make their living peddling these poisons. At the 
same time that we reduce the crack-powder sentence ratio from 100 to 1 
to 20 to 1 and reduce sentences for girlfriends and children who play 
truly minimal roles in drug crimes, we increase sentences for those who 
play leadership roles in trafficking organizations. The bill also 
increases sentences for those who use firearms or violence in carrying 
out their drug crimes.
  As a former federal prosecutor, United States Attorney, and Attorney 
General of Alabama, Senator Sessions is uniquely qualified to lead the 
Senate on this issue. Since at least 1998, he has done just that. Both 
in the Judiciary Committee and on the floor of the Senate, Senator 
Sessions has worked tirelessly to bring about a more just sentencing 
structure for cocaine offenses. This legislation represents the right 
approach, and it deserves the support of all of my colleagues.
      By Mrs. CLINTON (for herself, Mr. Smith of Oregon, Mr. Stevens, 
        Mr. Specter, Mrs. Boxer, Mr. Fitzgerald, Mr. Schumer, and Mr. 
        Dodd):
  S. 1876. A bill to establish a National Foundation for the Study of 
Holocaust Assets; to the Committee on Banking, Housing, and Urban 
Affairs.
  Mr. SMITH of Oregon. Mr. President, I am proud to introduce with 
Senator Clinton, the Holocaust Victims' Assets Restitution Policy and 
Remembrance Act. This legislation will create a public/private 
Foundation dedicated to educating and to completing the necessary 
research in the area of Holocaust-era assets and restitution policy and 
to promote innovative solutions to restitution issues. The Foundation 
is authorized for ten years at a cost of $100 million, after which it 
will sunset and ``spin off'' its research results and materials to 
private entities. It is able to accept private funds as well as public 
dollars.
  The need for the Foundation comes from the work of the Presidential 
Advisory Commission on Holocaust Assets in the United States. I was 
proud to have served as a Commissioner along with several of my 
colleagues in the Senate. The Commission identified a number of policy 
initiatives that require U.S. leadership, including: further research 
and review of Holocaust-era assets in the United States and world-wide; 
providing for the dissemination of information about restitution 
programs; creating a simple mechanism to assist claimants in obtaining 
resolution of claims; and, supporting a modern database of Holocaust 
victims' claims for the restitution of personal property.
  The Commission determined that ``our government performed in an 
unprecedented and exemplary manner in attempting to ensure the 
restitution of assets to victims of the Holocaust. However, even the 
best intentioned and most comprehensive policies were unable, given the 
unique circumstances of the time, to ensure that all victims' assets 
were restituted.''
  I believe this Foundation will provide a focal point for work between 
Federal and State governments to cross-match property records with 
lists of Holocaust victims. It will work with the museum community to 
further stimulate provenance research into European paintings and 
Judaica. It will promote and monitor the implementation by major 
banking institutions of the agreement developed in conjunction with the 
New York Bankers Association. Finally, it will work with the private 
sector to develop and promote common standards and best practices for 
research on Holocaust-era assets.
  I look forward to working with my colleagues in creating this 
Foundation to finish the work of the Holocaust Assets Commission. I 
urge all my colleagues to co-sponsor this important legislation that 
will solve restitution issues and engender needed research on Holocaust 
assets in the United States.
                                 ______