[Congressional Record Volume 153, Number 103 (Monday, June 25, 2007)]
[Senate]
[Pages S8358-S8359]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Kennedy, Mrs. Feinstein, and Mr. 
        Specter):
  S. 1685. A bill to reduce the sentencing disparity between powder and 
crack cocaine violations, and to provide increased emphasis on 
aggravating factors relating to the seriousness of the offense and the 
culpability of the offender; to the Committee on the Judiciary.
  Mr. HATCH. Mr. President, I rise today to introduce S. 1685, the 
Fairness in Drug Sentencing Act of 2007. I am joined in this effort by 
my colleagues, Senators Kennedy, Feinstein, and Specter. This 
bipartisan, balanced effort will adjust the existing statutory ratio 
for cocaine sentencing to craft a more rational and effective 
sentencing policy. I must underscore that this bill continues to offer 
significant penalties for drug dealers and ensures that those who 
continue to peddle dangerous substances in our communities will endure 
harsh consequences for their destructive choices; at the same time, 
though, S. 1685 rectifies a longstanding disparity in cocaine 
sentencing that should have been fixed two decades ago.
  Some background might be appropriate for my colleagues at this point. 
In 1986, Congress enacted the anti-drug abuse law to address the 
growing problem of drug use in our country. This legislation created 
the basic framework of statutory mandatory minimum penalties which are 
currently applicable to Federal drug trafficking offenses.
  The law differentiated between powder and crack cocaine by 
establishing significantly higher penalties for crack cocaine offenses. 
It is likely this was done based on assumptions that crack cocaine was 
considered more dangerous and had increased levels of violence 
associated with its usage. Based on these assumptions, the law provided 
for quantity-based penalties which differed dramatically between the 
two forms of cocaine. Under that law, the current law, it takes 100 
times more powder cocaine than crack cocaine to trigger the same 5- and 
10-year mandatory minimum sentences. This penalty structure is referred 
to as the ``100 to 1 drug ratio.''
  Over the last decade, public officials, lawmakers, interest groups, 
criminal justice practitioners, and judges have all criticized and 
questioned the fairness and practicality of the Federal sentencing 
policy for cocaine offenses created by the 1986 law. This 100-to-1 
ratio is widely viewed as an unjustifiable disparity. Crack and powder 
cocaine are pharmacologically the same drug, and although the level of 
violence associated with crack is higher, it does not warrant such an 
extreme sentencing disparity.
  It should also be noted that during the negotiations in 1986 that 
produced the 100-to-1 ratio law, a bill was introduced at the request 
of President Reagan which represented the Reagan administration's views 
on drug policy. This bill was described as the ``culmination'' of 
President Reagan's efforts in his commitment to fight drug abuse. The 
Reagan legislation utilized the same quantity of crack cocaine 
necessary to trigger a 5-year mandatory minimum as what is called for 
in the legislation we are introducing today, reducing the sentencing 
disparity to a 20-to-1 ratio.
  While many individuals can disagree on what the appropriate ratio 
should be, I am completely comfortable recommending the same amount 
previously requested by President Reagan. I supported his proposed 20-
to-1 ratio in 1986, and I support this same ratio today.
  Many organizations share our concern, and the U.S. Sentencing 
Commission has advocated that Congress reduce the sentencing disparity 
on four different occasions between 1995 and 2007. The Commission has 
conducted a voluminous amount of research on this topic. This research 
has led to many conclusions by the Commission, including that the 
current penalties exaggerate the relative harmfulness of crack, sweep 
too broadly and apply most often to lower level offenders, and fail to 
provide adequate proportionality.
  The Fairness in Drug Sentencing Act continues to recognize that crack 
and powder cocaine are not coequal in their destructive effects. On the 
contrary, the five-fold reduction in the crack-powder ratio corrects 
the unjustifiable disparity, while appropriately reflecting the greater 
harm to our citizens and communities posed by crack cocaine.
  This legislation also seeks to emphasize the defendant's role in the 
crime and will require the U.S. Sentencing Commission to examine 
sentencing enhancements for all Federal drug violations, including 
methamphetamine. The Commission's examination should include 
appropriate sentencing enhancements for offenders who brandished a 
weapon, sold to minors or pregnant women, sold drugs near schools, were 
involved in the importation of the illegal drugs into our country, or 
have previous felony drug trafficking convictions.
  Finding ways to reduce drug crime is not and should not be a partisan 
issue. All individuals involved in this process have tried to design a 
blueprint to curb the spread of drug trafficking and abuse. An easy, 
straightforward blueprint has unfortunately proven to be elusive. Since 
the 1970s, Congress has been working to improve Federal sentencing 
policy and has routinely made necessary changes to make our sentencing 
structure more just and effective. The bill we introduce today seeks to 
remedy mistakes of the past and will provide a rational and just 
sentencing schedule while continuing to reflect the fundamental and 
befitting goals of the criminal justice system.
  Mr. KENNEDY. Mr. President, I am pleased to join Senator Hatch in 
support of this important legislation to reduce the difference in 
sentencing between crack and powder cocaine. It is important to 
ameliorate harsh drug laws that have discriminatory consequences.
  The Sentencing Reform Act was enacted over 20 years ago to reduce 
unwarranted disparities and assure proportionality in punishment. 
Instead, the severity of crack-cocaine sentencing has had a harsh 
impact on low-income and African-American communities and has 
undermined public confidence in the fairness of the criminal justice 
system. Unfair sentencing feeds the perception that the criminal 
justice system unjustly targets the poor and minority communities.

[[Page S8359]]

  The crack powder laws were intended to punish those at the highest 
levels of the illegal drug trade, such as traffickers and kingpins. But 
the low amount needed to trigger the harsh sentences is not associated 
with high-level drug dealing. As the Sentencing Commission reported in 
2005, only 15 percent of Federal cocaine traffickers were high-level 
dealers. The overwhelming majority of defendants were low-level 
participants, such as street dealers, lookouts, or couriers. Harsh 
sentencing in such cases has only a limited impact on the drug trade 
because they involve low level offenders who are not at the top of the 
drug chain. The mass incarceration resulting from these sentences has 
done nothing to decrease drug use. Recent data indicate that such use 
has actually increased over time.
  When these laws were enacted, there was widespread belief in the 
extraordinary dangers of crack cocaine. It was viewed as highly 
addictive and likely to cause violent behavior. We know much more about 
crack cocaine now than we did 20 years ago. The rationale that crack is 
more dangerous or more addictive than powder is not supported by 
research. In fact, research has demonstrated that the effects of crack 
cocaine are much like the effects of powder cocaine.
  Medical experts have determined that the pharmacological effects of 
crack were overstated. They found that crack use doesn't incite violent 
behavior. As with other drugs, the violence is related to the 
distribution of the drug.
  Changes in the drug market have also called the 100-to-1 ratio into 
question. Demand for crack cocaine by new users has decreased 
significantly, and the violence associated with crack cocaine has 
declined. How can Congress continue to support a policy it knows is 
flawed? Changes are long overdue and will be an important step in 
reducing the disparity that plagues drug sentencing policies.
  Under the current sentencing laws, the statutory ratio for powder and 
crack cocaine is 100 to 1. One gram of crack cocaine triggers the same 
penalty as 100 grams of powder cocaine. Possession of 5 grams of crack 
triggers a 5-year mandatory minimum penalty. It is the only drug with a 
mandatory prison sentence for a first-time possession offense. This 
disparity results from an early attempt by the Commission to 
incorporate congressionally mandated minimum penalties into the 
guidelines, even though such harsh mandatory minimums are completely 
inconsistent with the structure and goals of the Sentencing Reform Act.
  Judges, experts, and practitioners in the Federal criminal justice 
system have long opposed mandatory minimums on the ground that they 
undermine the goals of the Sentencing Reform Act by creating 
unwarranted disparities, subjecting defendants with different levels of 
culpability to the same punishment, and adding another unnecessary 
layer of complexity to the sentencing process.
  In its 2002 report, as well as an updated report to Congress in May, 
the commission has repeatedly recognized that the 100-to-1 ratio 
exaggerates the relative harm of crack cocaine and creates unwarranted 
disparities that are correlated with race and class. With a new sense 
of urgency, the Commission continues to call on Congress to eliminate 
the 100-to-1 ratio.
  Senator Hatch's legislation takes two important steps toward this 
goal. It reduces the ratio from 100-to-1 to 20-to-1, and it eliminates 
the mandatory minimum sentence of 5 years for first-time possession. 
Under the new sentencing scheme proposed by this legislation, the 
amount of crack cocaine triggering a mandatory minimum sentence would 
be raised from 5 grams to 25 grams, an amount that targets the more 
serious traffickers. This change will make cocaine laws more consistent 
with the penalty structure for other types of drugs that require much 
greater amounts to trigger a mandatory minimum. For heroin and 
marijuana, it is 100 grams. Even for methamphetamine, the triggering 
amount is 10 grams. Congress must take action to support the 
recommendations of the Sentencing Commission.
  Changing the ratio will also provide important benefits to the 
criminal justice system as a whole. The Sentencing Commission estimates 
that the 20-to-1 ratio could save over 3,000 prison beds in the Federal 
system over a 5-year period, with millions of dollars in savings each 
year. Resources for prosecution could also be redirected toward more 
serious drug offenders, whose prosecution may actually make a 
difference in drug trafficking. Adjusting the ratio will also help to 
restore public confidence and fairness in the criminal justice system. 
Currently, 5,000 people are convicted under the Federal crack cocaine 
laws every year. The Sentencing Commission recently proposed amended 
guidelines for crack cocaine by reducing sentencing ranges, a change 
that will affect 78 percent of Federal defendants. The commission's 
proposed amendment to the guideline will result in an average sentence 
reduction of 16 months.
  Drug abuse and addiction are increasingly being recognized as public 
health issues, not just as crime problems. More resources must be 
directed at breaking the cycle of drug addiction, which often leads to 
involvement in crimes. More resources must also be directed toward drug 
courts, which provide nonviolent drug offenders with treatment, not 
punishment. We are currently working to reauthorize SAMSHA to improve 
substance abuse treatment, since punishment and incarceration only 
address one part of the overall drug problem.
  The commission recognizes, however, that its efforts are only a 
partial step to eliminate unwarranted disparities in the Federal crack 
powder laws. It has strongly urged Congress to address the problems 
with the 100-to-1 ratio. It is important for us to move forward on this 
issue without any effort to raise penalties for powder cocaine. Current 
law provides for 5-year and 10-year mandatory minimum sentences for 
offenses involving, respectively, 500 and 5000 grams of powder cocaine. 
There is no evidence that existing powder-cocaine penalties are too 
low.
  Our goal is to return to the original intent of these laws and direct 
our limited resources to arresting and prosecuting high level drug 
traffickers. Our harshest punishments should be reserved for those who 
truly deserve them.
                                 ______