[Congressional Record Volume 153, Number 189 (Tuesday, December 11, 2007)]
[Senate]
[Pages S15131-S15132]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                FEDERAL CRACK COCAINE SENTENCING POLICY

  Mr. LEAHY. Mr. President, nothing is more fundamental to our system 
of justice than the tenet inscribed in Vermont marble on the supreme 
court building, that all people should receive ``equal justice under 
law.'' For more than 20 years, however, our Nation has tolerated a 
Federal cocaine sentencing policy that treats crack offenders more 
harshly than cocaine offenders. This policy has unacceptably had a 
disparate impact on people of color and the poor--without any empirical 
justification.
  Today, the U.S. Sentencing Commission took yet another important step 
in addressing the wide disparity in our Federal cocaine sentencing 
laws. By voting to change our Sentencing Guidelines to reduce the 
sentences of crack offenders currently incarcerated, the Commission 
took a moderate but significant step to reduce unwarranted sentencing 
disparities in Federal crack and powder cocaine laws. Their unanimous 
vote is consistent with the goals of the Sentencing Reform Act, 
including ``the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct'' and brings our Nation one step closer to a drug policy that 
is fair and equal for all Americans.
  The good news does not stop there. Just yesterday, in the landmark 
ruling of Kimbrough v. United States, the Supreme Court of the United 
States expanded the power of our Federal trial courts to address the 
unfair disparity in our Federal sentencing laws between crack and 
powder cocaine. By a vote of 7 to 2, the Court ruled that Federal 
judges may, in their discretion, consider this disparity and depart 
from a guideline sentence where the punishment is ``greater than 
necessary'' to serve Congress's objectives.
  Under current law, an offender apprehended with 5 grams of crack 
cocaine faces the same 5-year mandatory minimum sentence as an offender 
with 500 grams of powder cocaine. That means existing law gives the 
same sentence to a drug trafficker dealing crack cocaine as it would to 
one dealing 100 times more powder cocaine.
  This year, the Sentencing Commission has taken historic actions to 
address the unfairness and injustice of this disparity. The Commission 
held hearings and, after extensive study of this issue, reiterated its 
long-held position that crack cocaine penalties continue to 
disproportionately impact minorities and undermine various 
congressional objectives set forth in the Sentencing Reform Act. Next, 
the Commission attempted to correct this disparity and provide some 
relief to some crack cocaine offenders by recommending that all crack 
penalties be lowered by two base offense levels. Last month, Congress 
allowed this new Commission amendment--the so-called ``Crack Minus 2'' 
amendment--to be enacted in the Sentencing Guidelines.
  Today, the Sentencing Commission has taken yet another positive step.
  This amendment is consistent with Congress's intent in creating a 
sentencing guideline system. In its report to Congress, the Commission 
said that the Crack Minus 2 amendment was needed to address its long-
held finding that ``the 100-to-1 drug quantity ratio (for crack 
cocaine) significantly undermines the various congressional objectives 
set forth in the Sentencing Reform Act.'' I agree. I join the chorus of 
our esteemed Federal judges, articulated in the Judicial Commission's 
testimony before the Sentencing Commission on this amendment, that 
fundamental fairness dictates that this amendment ``equally applies to 
offenders who were sentenced in the past as well as offenders [who] 
will be sentenced in the future.''

[[Page S15132]]

  Fundamental fairness dictates that we undo past errors to build 
public confidence in the rule of law. Americans must have faith and 
confidence that our drug laws are fair and proportional, and a rule 
correcting a past injustice should be applied retroactively to restore 
that public confidence. The public's faith is even more critical in 
crack cocaine cases where 85 percent of the defendants are African 
Americans--a fact which only enhances the public perception that harsh 
and punitive sentences are imposed disproportionately on persons of 
color.
  Allowing judges to reconsider the sentences for crack offenders will 
not threaten public safety. As the Judicial Conference noted in its 
testimony before the Sentencing Commission, ``no offender would be 
eligible for release without judicial approval.'' This amendment allows 
judges the discretion to give a sentence outside of the Federal 
guidelines but does not mandate that such a sentence must be imposed. 
As chairman of the Senate Judiciary Committee, I have some experience 
with the people who serve our Nation in lifetime positions on the 
Federal bench. Unlike those who argue that the sky is falling, I have 
every confidence in the ability of our Federal judges to use this power 
sparingly and to provide a proper check when necessary to prevent the 
release of dangerous offenders back into our communities and 
neighborhoods.
  Most importantly, while I abhor the damage done by drug abuse, I also 
abhor that the penalties for those in the inner city are different than 
for those in affluent society. For 21 years, far too many African 
Americans and low-level drug offenders were subject to unfair and 
overly punitive Federal crack cocaine sentencing laws. With the 
Commission's amendment to reduce this disparity, we begin the process 
of healing wounds which have long shaken the public's confidence in our 
Federal drug policy. Applying this fix retroactively is only fair and 
just.
  The administration's failure to support retroactivity of even the 
slightest modification of crack penalties is both a surprise and a deep 
disappointment. I recall that 2 days before taking office, President 
Bush said that we should address this problem ``by making sure the 
powder cocaine and the crack cocaine sentences are the same.'' He also 
said, ``I don't believe we ought to be discriminatory.'' Yet his 
Justice Department has strongly opposed retroactive application of this 
crack cocaine reform amendment, even though failure to act would once 
again disparately impact African Americans, since an estimated 85 
percent of those who would benefit from the policy are African 
Americans. The Justice Department's position would also erode public 
confidence that our drug laws are free from bias since previous drug 
reform amendments more likely to benefit Whites and Hispanics were made 
retroactive.
  Thankfully, the Sentencing Commission accepted the administration's 
view. Their decision today was unanimous. I hope the Attorney General 
will take notice and move to support drug laws that treat all Americans 
equally.
  While fundamental change will require congressional action, I salute 
the Sentencing Commission for its leadership on this issue. I urge my 
colleagues to support the Commission's decision and support additional 
changes to our laws to further reduce the disparity in our Federal 
cocaine sentencing laws. It is long past time for us to rectify this 
problem.

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