[Congressional Record Volume 153, Number 105 (Wednesday, June 27, 2007)]
[Senate]
[Pages S8614-S8615]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BIDEN:
  S. 1711. A bill to target cocaine kingpins and address sentencing 
disparity between crack and powder cocaine; to the Committee on the 
Judiciary.
  Mr. BIDEN. Mr. President, 20 years ago, I helped write the law that 
established the current Federal cocaine sentencing scheme. Under this 
law, it takes 100 times more powder cocaine than crack cocaine to 
trigger the 5- and 10-year mandatory minimum sentences. And mere 
possession of five grams of crack, the weight of about two sugar cubes, 
gets you the same 5-year mandatory minimum penalty as trafficking 500 
grams of the powder form of cocaine, which is equivalent to about a 1 
pound bag of sugar.
  The facts that informed our decision at the time have proved to be 
wrong, making the underlying cocaine sentencing structure we created 
unfounded and unfair. It is time to change the law to reflect this new 
understanding. That is why, today, I am introducing the Drug Sentencing 
Reform & Cocaine Kingpin Trafficking Act of 2007, which eliminates this 
unjustified disparity in Federal cocaine sentencing policy.
  Back in 1986, when we wrote the law that established the current 
sentencing structure, crack was hitting our streets and communities 
like a storm. I remember one headline that I think summed it up. It 
read ``New York City Being Swamped by `Crack'; Authorities Say They Are 
Almost Powerless to Halt Cocaine.'' That summer was called ``the summer 
of crack,'' and we were inundated with horror stories about how this 
new form of smokeable cocaine was ravaging communities. We were told 
that crack was instantly addictive, prompting the expression, ``Once on 
crack, you never go back.'' We heard that it caused users to go on 
violent rampages, was more harmful to babies than powder cocaine when 
used by mothers during pregnancy, and would lead to the disintegration 
of inner-city communities.
  And in Congress, there was a feeling of desperation that summer, a 
sense that we had to give law enforcement the power they needed to save 
neighborhoods being ravaged by this drug.
  More than a dozen bills were introduced to increase the penalties for 
this form of cocaine, but because we knew so little about it, the 
proposals were all over the map. They ranged from the Reagan 
administration's proposal of a 20-to-1 sentencing disparity between 
crack and powder cocaine to a 1000-to-1 disparity proposed by Senator 
Lawton Chiles. I joined Senators Byrd and Dole in leading the effort to 
enact the Anti-Drug Abuse Act of 1986, which established the current 
100-to-1 disparity.
  Our intentions were good, but as further scientific and sociological 
study has shown, we got it wrong.
  We now know that these initial assumptions about crack and powder 
cocaine, which are just two forms of the same drug, simply were not 
true. Scientific evidence shows that crack does not have unique, 
inherent properties that make it instantly addictive. According to the 
Journal of the American Medical Association, ``cocaine in any form 
produces the same physiological and subjective effects.'' We also have 
learned that the dire predictions about a generation of ``crack 
babies'' whose mothers used crack during pregnancy have not proven 
true. The negative effects of prenatal exposure to crack cocaine and 
powder cocaine are identical. Furthermore, data that the U.S. 
Sentencing Commission has collected show that crack users rarely commit 
acts of violence. Almost all crack-related violence is associated with 
trafficking, not with someone on a so-called crack-induced rampage.
  Looking back over more than 20 years, it is also clear that the harsh 
crack penalties have had a disproportionate impact on the African 
American community. Eighty-two percent of those convicted of crack 
offenses at the Federal level are African American, fueling the notion 
that the Federal cocaine sentencing scheme is unfair.
  There is widespread recognition that the current cocaine sentencing 
scheme is out of date and out of touch with reality. There are others 
here in the Senate, on both sides of the aisle, who feel the current 
cocaine sentencing policy is unfounded. Like me, Senators Sessions and 
Hatch have introduced legislation to reduce the disparity and I want to 
congratulate them for their hard work and dedication to this issue.
  As a matter of fact, when President Bush was asked about the longer 
sentences for crack cocaine, he said that the disparity, and I am 
quoting the President here, ``ought to be addressed by making sure the 
powder cocaine and crack cocaine penalties are the same. I don't 
believe we ought to be discriminatory.''
  A slew of commentators, Federal judges, Federal prosecutors, doctors, 
academics, social scientists, civil rights leaders, clergy, and others 
have spoken out about the unwarranted disparity between crack and 
powder cocaine sentences.
  And just last month, the U.S. Sentencing Commission, a bipartisan 
panel comprised in large part of Federal judges who preside over 
cocaine cases, issued a report stating that the current Federal cocaine 
sentencing scheme ``continues to come under almost universal criticism 
from representatives of the Judiciary, criminal justice practitioners, 
academics, and community interest groups.''
  This is not the first time the Sentencing Commission has urged 
reform. In 1995, the Commission recommended eliminating the crack/
powder sentencing disparity. Congress rejected this proposal. As 
scientific understanding of cocaine evolved, the Commisson urged 
Congress three more times to address this problem. Yet Congress did not 
act. We are long overdue in heeding the call for reform.
  The Sentencing Cmission has provided us with a roadmap. In its most 
recent report, the Commission ``unanimously and strongly urge[d]'' 
Congress to: 1. Act swiftly to increase the threshold quantities of 
crack necessary to trigger the 5- and 10-year mandatory minimum 
sentences, so that Federal resources are focused on major drug 
traffickers as intended in the original 1986 legislation; and 2. repeal 
the mandatory minimum penalty sentence for simple possession of crack, 
the only controlled substance for which there is a mandatory minimum 
for a first time offense of simple possession. The Sentencing 
Commission also unanimously rejected any effort to increase the 
penalties for powder since there is no evidence to justify any such 
upward adjustment.
  My bill implements all of these recommendations.

[[Page S8615]]

  Specifically, my bill will eliminate the current 100-to-1 disparity 
by increasing the 5-year mandatory minimum threshold quantity for crack 
cocaine to 500 grams, from 5 grams, and the 10-year threshold quantity 
to 5,000 grams, from 50 grams, while maintaining the current statutory 
mandatory minimum threshold quantities for powder cocaine. It will also 
eliminate the current 5-year mandatory minimum penalty for simple 
possession of crack cocaine, the only mandatory minimum sentence for 
simple possession of a drug by a first time offender.
  It also increases penalties for major drug traffickers and provides 
additional resources for the Federal agencies that investigate and 
prosecute drug offenses. Furthermore, because I have always believed 
that the best approach to fighting crime is a holistic one that 
incorporates enforcement, prevention, and treatment, my bill authorizes 
funds for prison- and jail-based drug treatment programs.
  My bill both remedies the historic injustice in the current cocaine 
sentencing laws and focuses Federal resources on, and increases 
penalties for, the big fish, the major drug traffickers and kingpins 
who drive the drug trade. Unlike Federal powder cocaine offenders, over 
half of Federal crack offenders are low-level street dealers who could 
and should be prosecuted at the State level. States are better equipped 
to handle these small-time dealers and users, and under my bill, these 
offenders would still be punished, without expending precious Federal 
resources.
  Drug use is a serious problem, and I have long supported strong 
antidrug legislation. But in addition to being tough, our drug laws 
should be rational and fair. My bill achieves the right balance. We 
have talked about the need to address this cocaine sentencing disparity 
for long enough. It is time to act. I hope that my colleagues will join 
with me to support this legislation.
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