[Congressional Record Volume 153, Number 191 (Thursday, December 13, 2007)]
[Extensions of Remarks]
[Pages E2564-E2565]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    CALLING FOR AN END TO THE UNFAIR DISPARITY IN COCAINE SENTENCING

                                 ______
                                 

                         HON. CHARLES B. RANGEL

                              of new york

                    in the house of representatives

                      Thursday, December 13, 2007

  Mr. RANGEL. Madam Speaker, I rise today to echo the country's growing 
insistence that crack cocaine sentencing be reformed and that a 
sensible, fair policy replace it. I introduce the December 11 
Washington Post editorial, ``Sense in Sentencing,'' and the December 12 
New York Times Post editorial, ``Justice in Sentencing,'' to highlight 
how from all branches of government momentum is indisputably picking up 
in favor of reform. This week, a decisive Supreme Court granted judges 
greater discretion in sentencing, and the U.S. Sentencing Commission 
decided to retroactively apply the recent reduction of its sentencing 
recommendations--both a nod to the prevailing outrage concerning 
excessively stiff crack cocaine penalties.
  The Commission and the Court have done all they can. Now, it's our 
turn. The impetus falls on Congress to end the sentencing inequity that 
slaps the same 5-year sentence for possessing 500 grams of powder as it 
does for 5 grams of crack. That's a 100-to-1 disparity--and an average 
difference of 40 months in jail time--for two drugs experts say have no 
significant differences. Well, here's one significant difference: Over 
80 percent of sentenced crack offenders are Black. These arbitrarily 
lopsided mandatory minimums have fueled the disproportionate rate and 
length of incarceration of Black men and swelled our prisons to a 
world-leading 2.2 million.
  The door to criminal and racial justice has been opened. It's now up 
to this Congress to step through it. Let's rally around The Crack-
Cocaine Equitable Sentencing Act, H.R. 460, and correct the sentencing 
of uneven punishments for nearly identical offenses.

Sense in Sentencing:The Supreme Court Gives Judges Some Leeway in Drug 
                                 Cases

       For roughly two decades, federal trial judges have chafed 
     under the constraints of federal sentencing guidelines and 
     mandatory minimums that often forced them to hand down 
     inordinately long sentences. Those injustices have been most 
     pronounced in drug cases, particularly those involving crack 
     cocaine. In two opinions released yesterday, the Supreme 
     Court handed back some flexibility to judges and increased 
     the chances that justice--not just retribution--will be 
     exacted in future cases.
       By 7-2 votes, the justices concluded that trial judges have 
     the leeway to impose more lenient sentences in drug cases 
     than those called for by the federal sentencing guidelines. 
     To pass legal muster, the sentences must be ``reasonable'' 
     and ``sufficient, but not greater than necessary'' to 
     ``promote respect for the law, provide just punishment for 
     the offense'' and ``protect the public from further crimes of 
     the defendant.''
       One decision yesterday concerned Derrick Kimbrough, who was 
     arrested in Norfolk in 2004 with 92 grams of powder cocaine, 
     56 grams of crack and a gun. He faced 19 to 22 years behind 
     bars, in large part because of the high penalties for crack 
     offenses; he would have had to possess 5,000 grams of powder 
     cocaine to get the same sentence. After considering Mr. 
     Kimbrough's record of steady employment and his military 
     service during the Persian Gulf War, the trial judge 
     concluded that Mr. Kimbrough should serve roughly 15 years.
       In the second case, Brian Gall, along with seven others, 
     was indicted in Iowa in 2004 for conspiracy to sell ecstasy, 
     cocaine and marijuana. The conspiracy, according to the 
     indictment, ran from 1996 to 2002. Mr. Gall, a former drug 
     addict, sold ecstasy for roughly 7 months in 2000 but stopped 
     using drugs 1 month after he began selling them and pulled 
     out of the drug trade a few months later. He subsequently 
     earned a college degree and worked in construction before 
     starting his own company. When he was indicted, Mr. Gall had 
     been drug-free and law-abiding for roughly 4 years. The 
     presiding judge determined that the 30- to 37-month sentence 
     called for by the guidelines was unjust and 
     counterproductive. He sentenced Mr. Gall to 36 months 
     probation.
       The justices rightly rebuffed the government's challenge to 
     the reduced sentences. They recognized the wisdom of allowing 
     those closest to the ground--the trial judges--to assess how 
     best to exact justice in individual cases, even while 
     endorsing the guidelines as a means to avert wide disparity 
     in sentences nationwide.
       The evolution of crack sentencing could continue today 
     when, perhaps coincidentally, the U.S. Sentencing Commission 
     is scheduled to vote on whether to make retroactive the more 
     lenient penalties it instituted earlier this year. The 
     commission should vote yes and take yet another step toward 
     bringing sanity to the crack laws.

                         Justice in Sentencing

       With a pair of 7-2 rulings this week, the Supreme Court 
     struck a blow for basic fairness and judicial independence. 
     The court restored a vital measure of discretion to federal 
     trial judges to impose sentences based on their assessment of 
     a particular crime and defendant rather than being forced 
     to adhere to overarching guidelines.
       Beyond that, one of the rulings highlighted the 
     longstanding injustice of federal guidelines and statutes 
     imposing much longer sentences for offenses involving crack 
     cocaine, which is most often found in impoverished 
     communities, than for offenses involving the chemically 
     identical powdered cocaine, which is popular among more 
     affluent users.
       The rulings provide fresh impetus for Congress to rewrite 
     the grotesquely unfair crack cocaine laws on which the 
     federal sentencing guidelines are partly based. Those laws 
     are a relic of the 1980s, when it was widely but wrongly 
     believed that the crack form of cocaine was more dangerous 
     than the powder form. We are pleased that the United States 
     Sentencing Commission recently called for reducing sentences 
     for some categories of offenders and has now called for 
     applying the change retroactively. The real work still lies 
     with Congress, which needs to rewrite the law.
       Building on a 2005 decision that held the sentencing 
     guidelines to be advisory rather than mandatory, the new 
     rulings affirm that the guidelines are but one factor to be 
     considered by a trial judge in arriving at an individual 
     sentence, and that an appeals court must have a strong reason 
     to overturn that sentence.
       In one of the cases, the justices supported a district 
     judge in Virginia who gave a military veteran convicted of 
     crack dealing a sentence of 15 years, rather than the 19-22 
     years that the guidelines recommended. The ruling described 
     the federal crack law as ``disproportionate and unjust.'' 
     Writing for the majority, Justice Ruth Bader Ginsburg stated 
     that it would not be an abuse of a discretion for a trial 
     judge to conclude that the crack/powder disparity resulted in 
     a longer-than-necessary sentence for a particular defendant.
       In the other case, the court found that a trial judge was 
     within his rights to impose a light sentence on a man briefly 
     involved in selling the drug Ecstasy while in college. In 
     reviewing sentences, wrote Justice John Paul Stevens for the 
     majority, appellate courts must apply a deferential abuse-of-
     discretion standard to trial judges' decisions.
       There is a danger that the new procedures outlined by the 
     court could end up making federal sentences unfairly 
     disparate across the country, undermining one of the 
     important objectives of having sentencing guidelines in the 
     first place. If that happens, Congress will have to address 
     the problem. For

[[Page E2565]]

     the moment, the Supreme Court's latest adjustment in 
     sentencing strikes us as a positive development, one with 
     much potential for advancing justice.

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