[Congressional Record Volume 155, Number 149 (Thursday, October 15, 2009)]
[Senate]
[Pages S10490-S10493]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Leahy, Mr. Specter, Mr. Feingold, 
        Mr. Cardin, Mr. Whitehouse, Mr. Kaufman, Mr. Franken, Mr. Dodd, 
        Mr. Kerry, and Mr. Levin):
  S. 1789. A bill to restore fairness to Federal cocaine sentencing; to 
the Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I rise to speak about the Fair Sentencing 
Act of 2009, which I am introducing today.
  This narrowly tailored bill would eliminate the sentencing disparity 
that exists in the United States between crack cocaine and powder 
cocaine. At the same time, it would increase penalties for the worst 
offenders for crimes involving these substances. It accomplishes two 
very important goals: One goal is to restore fairness to drug 
sentencing and, second, to focus our limited Federal resources on the 
most effective way to end violent drug trafficking.
  I have cast thousands of votes as a Member of the House of 
Representatives and the Senate. Most of those votes are kind of lost in 
the shadows of history. Some were historic, relative to going to war 
and impeachment issues, and you never forget those.
  But there was one vote I cast more than 20 years ago which I regret. 
It was a vote that was cast by many of us in the House of 
Representatives, when we were first informed about the appearance of a 
new narcotic on the streets. It was called crack cocaine. It was so 
cheap it was going to be plentiful, and it was so insidious--or at 
least we were told that 20 years ago--we were advised to take notice 
and do something dramatic and we did.
  More than 20 years ago, I joined many Members of Congress from both 
political parties in voting for the Anti-Drug Abuse Act of 1986. It 
established the Federal cocaine sentencing framework that is still in 
place today.
  Under this law, it takes 100 times more powder cocaine than crack 
cocaine to trigger the same 5-to-10-year mandatory minimum sentence. 
This is known as the 100-to-1 crack/powder sentencing disparity. But 
that phrase doesn't tell the story. Here is the story. Simply 
possessing 5 grams of crack, which is the equivalent of holding five 
packets of sugar or Equal or one of the sugar substitutes, simply 
possessing that small amount of crack cocaine under the current 
sentencing framework carries the same sentence as selling--not 
possessing but selling--500 grams of powder cocaine--the equivalent of 
500 packets of sugar. Why? Well, because we believed we were dealing 
with a different class of narcotics; something that was much more 
dangerous and should be treated much more harshly.
  Make no mistake, cocaine--whether in crack or powder form--has a 
devastating impact on families and on our society and we need to have 
tough legislation when it comes to narcotics. But in addition to being 
tough, our drug laws have to be fair.
  Right now, our cocaine laws are based on a distinction between crack 
and powder cocaine which cannot be justified. Our laws don't focus on 
the most dangerous offenders. Incarcerating for 5 to 10 years people 
who are possessing five sugar packets' worth of crack cocaine for the 
same period of time as those who are selling 500 sugar-size packets of 
powder cocaine is indefensible.
  The Fair Sentencing Act, which I am introducing today, would 
completely eliminate this crack/powder disparity. It establishes the 
same sentences for crack and powder--a 1-to-1 sentencing ratio.

[[Page S10491]]

  Those of us who supported the law establishing this disparity had 
good intentions. We followed the lead and advice of people in law 
enforcement. We wanted to address this crack epidemic that was 
spreading fear and ravaging communities. But we have learned a great 
deal in the last 20 years. We now know the assumptions that led us to 
create this disparity were wrong.
  Vice President Joe Biden, one of the authors of the legislation 
creating this disparity in sentencing, has said: ``Each of the myths 
upon which we based the disparity has since been dispelled or 
altered.''
  Earlier this year, I held a hearing in the Senate Judiciary Committee 
on this disparity in sentencing and we learned the following: Crack is 
not more addictive than powder cocaine, and crack cocaine offenses do 
not involve significantly more violence than powder cocaine offenses. 
Those were the two things that led us to this gross disparity in 
sentencing between powder cocaine and crack cocaine. We were told it is 
different; it is more addictive. It is not. We were also told it was 
going to create conduct which was much more violent than those who were 
selling powder cocaine and their activities. It did not.
  We have also learned that more than 2.3 million people are imprisoned 
in America today. That is the most prisoners and the highest per capita 
rate of prisoners of any country in the world, and it is largely due to 
the incarceration of nonviolent drug offenders in America. African 
Americans are incarcerated at nearly six times the rate of White 
Americans. These are issues of fundamental human rights and justice our 
country must face.
  It is important to note that the crack/powder disparity 
disproportionately affects African Americans. While African Americans 
constitute less than 30 percent of crack users, they make up 82 percent 
of those convicted of Federal crack offenses.
  At a hearing I held, we heard compelling testimony from Judge Reggie 
B. Walton, who was Associate Director of the Office of Drug Control 
Policy under President George H.W. Bush and was appointed by President 
George W. Bush to the Federal bench. Judge Walton is an African 
American, and he testified about ``the agony of having to enforce a law 
that one believes is fundamentally unfair and disproportionately 
impacts individuals who look like me.''
  We also heard about the negative impact the crack/powder disparity 
has on the criminal justice system. Judge Walton further testified 
about ``jurors who would tell me that they refused to convict, that 
even though they thought the evidence was overwhelming, they were not 
prepared to put another young black man in prison knowing the 
sentencing disparity that existed between crack and powder cocaine.''
  Asa Hutchinson, who was head of the Drug Enforcement Administration 
under President George W. Bush, testified: ``Under the current 
disparity, the credibility of our entire drug enforcement system is 
weakened.''
  The crack disparity also diverts resources away from the prosecution 
of large-scale drug traffickers. In fact, more than 60 percent of 
defendants convicted of Federal crack crimes are street-level dealers 
or mules.
  During these difficult economic times, it is also important to note 
that the crack/powder disparity has placed an enormous burden on 
taxpayers and the prison system. Based on the Bureau of Prison's 
estimates of the annual costs of incarceration and the U.S. Sentencing 
Commission's projections of the number of prison beds reduced per year, 
we know that eliminating this disparity could save more than $510 
million in prison beds over 15 years.
  There is widespread and growing agreement that the Federal cocaine 
and sentencing policy in the United States today is unjustified and 
unjust.
  At the hearing I held on the crack/powder disparity, Lanny Breuer, 
the Assistant Attorney General of the Criminal Division, announced that 
the Justice Department and this administration support completely 
eliminating the crack/powder disparity and establishing a 1-to-1 ratio, 
which is included in my bill.
  In June, Attorney General Eric Holder testified before the Senate 
Judiciary Committee. I asked him about this issue and here is what he 
said.

       When one looks at the racial implications of the crack-
     powder disparity, it has bred disrespect for our criminal 
     justice system. It has made the job of those of us in law 
     enforcement more difficult. . . . [I]t is time to do away 
     with that disparity.

  Here on Capitol Hill, Democrats and Republicans alike have advocated 
fixing the disparity for years.
  The following 10 Senators are original cosponsors of the Fair 
Sentencing Act: Senator Patrick Leahy, the Chairman of the Judiciary 
Committee, who for years has advocated for drug sentencing reform; 
Senator Arlen Specter, the Chair of the Judiciary Committee's Crime and 
Drugs Subcommittee; Five other members of the Senate Judiciary 
Committee--Senators Russ Feingold, Ben Cardin, Sheldon Whitehouse, Ted 
Kaufman, and Al Franken; and Senators John Kerry, Chris Dodd, and Carl 
Levin.
  I would also like to recognize at this point, though he is not a 
cosponsor of the bill, Senator Jeff Sessions, the ranking member of the 
Judiciary Committee. He has been a leader in calling for reform of 
crack/powder sentencing policy.
  The Senator from Alabama is a former U.S. attorney, not known to be 
soft on crime in any way, shape, or form, but he was one of the first 
to speak out about the injustice of the crack/powder disparity. I 
continue my dialog with Senator Sessions in the hope that he and I can 
come to a common place with regard to this important issue.
  There is a bipartisan consensus about the need to fix the crack-
powder disparity. I have been in discussions with Chairman Leahy and 
Ranking Member Sessions, as well as Republican Senators Lindsey Graham, 
Orrin Hatch, and Tom Coburn, and I am confident that the Judiciary 
Committee can come together to find a bipartisan solution to this 
problem.
  A broad coalition of legal, law enforcement, civil rights, and 
religious leaders and groups from across the political spectrum 
supports eliminating the crack-powder disparity, including, for 
example: Los Angeles Police Chief Bill Bratton, Miami Police Chief John 
Timoney, The American Bar Association, The Leadership Conference on 
Civil Rights, The National Black Police Association, and The United 
Methodist Church.
  The bipartisan United States Sentencing Commission has been urging 
Congress to act for 15 years. They have argued that fixing the crack-
powder disparity ``would better reduce the [sentencing] gap [between 
African Americans and whites] than any other single policy change, and 
it would dramatically improve the fairness of the federal sentencing 
system.'' The Sentencing Commission has repeatedly recommended that 
Congress take two important steps: No. 1, reduce the sentencing 
disparity by increasing the quantities of crack cocaine that trigger 
mandatory minimum sentences; and No. 2, eliminate the mandatory minimum 
penalty for simple possession of crack cocaine. This is the only 
mandatory minimum sentence for simple possession of a drug by a first 
time offender.
  The bill that I have introduced does both those things.
  In order to ensure that limited Federal resources are directed toward 
the largest drug traffickers and the most violent offenders, not just 
those guilty of simple possession and a first offense, the Fair and 
Sentencing Act provides for increased penalties for drug offenses 
involving vulnerable victims, violence and other aggravating factors.
  For example, an individual being prosecuted for possessing either 
crack or powder cocaine will face more jail time if he: uses or 
threatens to use violence; uses or possesses a dangerous weapon; is a 
manager, leader or organizer of drug trafficking activities; or 
distributes drugs to a pregnant woman or minor.
  The bill would also increase the financial penalties for drug 
trafficking. This sentencing structure will shift Federal resources 
towards violent traffickers and away from nonviolent drug users who are 
best dealt with at the State level.
  In the final analysis, this legislation is about fixing an unjust law 
that has taken a great human toll. At the hearing I held in the 
Judiciary Committee, we heard testimony from Cedric Parker, who is from 
Alton in my home State of Illinois. In 2000, Mr. Parker's

[[Page S10492]]

sister, Eugenia Jennings, was sentenced to 22 years in prison for 
selling 14 grams of crack cocaine. Mr. Parker told us that Eugenia was 
physically and sexually abused from a young age. She was addicted to 
crack by the time she was 15.
  Eugenia has three children, Radley, Radeisha, and Cardez. They are 
now 11, 14, and 15. These children were 2, 5, and 6 when their mother 
went to prison for selling the equivalent of 6 sugar cubes of crack. 
They have seen their mother once in the last 9 years. They will be 21, 
24, and 25 when she is released in 2019.
  At Eugenia's sentencing, Judge Patrick Murphy said this:

       Mrs. Jennings, nobody has ever been there for you when you 
     needed it. When you were a child and you were being abused, 
     the Government wasn't there. But when you had a little bit of 
     crack, the government was there. And it is an awful thing, an 
     awful thing to separate a mother from her children. That's 
     what the Government has done for Eugenia Jennings.

  It is time to right this wrong. We have talked about the need to 
address the crack-powder disparity for long enough. Now, it's time to 
act. I urge my colleagues to join me in supporting the Fair Sentencing 
Act of 2009.
  Mr. SESSIONS. Mr. President, I see my colleague, the assistant 
majority leader. I know we have been talking about improvement in the 
sentencing process for crack cocaine. I have offered legislation for 
almost a decade that would substantially improve the sentencing process 
in a way that I think is fair and constructive and allows us to deal 
with serious criminals like drug dealers. I believe it is pretty close 
to being a good policy. Senator Salazar, now a member of the Obama 
Cabinet, and Senator Mark Pryor, my Democratic colleague from Arkansas, 
Senator John Cornyn from Texas, and I, all four former attorneys 
general, offered that legislation. Senator Durbin has some ideas too. I 
look forward to working with him. I do think it is past time to act.
  I will not favor alterations that massively undercut the sentencing 
we have in place, but I definitely believe that the current system is 
not fair and that we are not able to defend the sentences that are 
required to be imposed under the law today.
  I am a strong believer in law enforcement and prosecution of those 
who violate our laws, particularly criminals who really do a lot of 
damage beyond just dealing drugs. They foster crime and form gangs. 
People who use cocaine tend to be violent. Even more, in some ways, 
people who use crack cocaine, as opposed to powder cocaine, tend to be 
paranoid and violent. It is not a good thing.
  We don't need to give up the progress that has been made, but at the 
same time we need to fix the sentencing. I oppose anything that 
represents a 50, 60, 70, or 80 percent reduction in penalties but a 
significant rebalancing of that would be justified.
  Mr. LEAHY. Mr. President, today, I am proud to join Senators Durbin, 
Specter, Feingold, Cardin, Whitehouse, Kaufman, Franken, and others to 
introduce the Fair Sentencing Act of 2009. Our bill will eliminate the 
current 100-to-1 disparity between Federal sentences for crack and 
powder cocaine, equalizing the penalties for both forms of cocaine. I 
hope that this legislation will finally enable us to address the racial 
imbalance that has resulted from the cocaine sentencing disparity, as 
well as to make our drug laws more fair, more rational, and more 
consistent with our core values of justice.
  I commend Senator Durbin for his leadership in fixing this decades-
old injustice. He chaired a hearing before our Crime and Drugs 
Subcommittee six months ago to examine this issue where we heard from 
the Assistant Attorney General for the Criminal Division at the Justice 
Department. We should do what we can to restore public confidence in 
our criminal justice system. Correcting biases in our criminal 
sentencing laws is a step in that direction.
  Today, the criminal justice system has unfair and biased cocaine 
penalties that undermine the Constitution's promise of equal treatment 
for all Americans. For more than 20 years, our Nation has used a 
Federal cocaine sentencing policy that treats ``crack'' offenders one 
hundred times more harshly than other cocaine offenders without any 
legitimate basis for the difference. We know that there is little or no 
pharmacological distinction between crack and powder cocaine, yet the 
resulting punishments for these offenses is radically different and the 
resulting impact on minorities has been particularly unjust.
  Under this flawed policy, a first-time offender caught selling five 
grams of powder cocaine typically receives a 6 month sentence, and 
would often be eligible for probation. That same first-time offender 
selling the same amount of crack faces a mandatory five year prison 
sentence, with little or no possibility of leniency. This policy is 
wrong and unfair, and it has needlessly swelled our prisons, wasting 
precious Federal resources.
  Even more disturbingly, this policy has had a significantly disparate 
impact on racial and ethnic minorities. According to the latest 
statistics assembled by the United States Sentencing Commission, 
African-American offenders continue to make up the large majority of 
Federal crack cocaine offenders, accounting for 80 percent of all 
Federal crack cocaine offenses, compared to white offenders who account 
for just 10 percent. These statistics are startling. It is no wonder 
this policy has sparked a nationwide debate about racial bias and 
undermined citizens' confidence in the justice system.
  These penalties, which Congress created in the mid-1980s, have failed 
to address basic concerns. The primary goal was to punish the major 
traffickers and drug kingpins who were bringing crack into our 
neighborhoods. But the law has not been used to go after the most 
serious offenders. In fact, just the opposite has happened. The 
Sentencing Commission has consistently reported for many years that 
more than half of Federal crack cocaine offenders are low-level street 
dealers and users, not the major traffickers Congress intended to 
target.
  The Fair Sentencing Act of 2009 would return the focus of Federal 
cocaine sentencing policy to drug kingpins, rather than street level 
dealers, and address the racial disparity in cocaine sentencing. The 
legislation we introduce today would align crack and powder cocaine 
sentences by setting the mandatory minimum sentencing triggers at the 
same levels. This equalization is a sound way to address the unjust 
sentencing disparity between crack and powder cocaine.
  We have heard calls for this reform from Senators on both sides of 
the aisle. Senator Hatch, who has called the current ratio ``an 
unjustifiable disparity,'' recognizes that because ``crack and powder 
cocaine are pharmacologically the same drug'' our sentencing laws do 
``not warrant such an extreme disparity.'' Even Senator Sessions, now 
the ranking Republican member of the Judiciary Committee, has called 
the 100-to-1 disparity in sentencing between crack cocaine and powder 
cocaine ``not justifiable'' and called for changes to make the criminal 
justice system more effective and fair.
  The legislation we introduce today would also eliminate the mandatory 
minimum sentence for possession of crack cocaine. The 5-year mandatory 
minimum sentence penalty for simple possession of crack is unique under 
Federal law. There is no other mandatory minimum for mere simple 
possession of a drug. This bill would correct this inequity, as well. 
Still, the Federal penalties for drug crimes remain very tough. This 
bill toughens some of those penalties. It would increase fines for 
major drug traffickers, as well as provide sentencing enhancements for 
acts of violence committed during the course of a drug trafficking 
offense. As a former prosecutor, I support strong punishments for drug 
traffickers.
  This legislation already has support from a broad coalition of 
groups, including the American Bar Association, the NAACP, the ACLU, 
Families Against Mandatory Minimums, the Sentencing Project, the United 
Methodist Church, and many more.
  While serving in the Senate, in September 2007, then-Senator Obama 
said:

       If you are convicted of a crime involving drugs, of course 
     you should be punished. But let's not make the punishment for 
     crack cocaine that much more severe than the punishment for 
     powder cocaine when the real difference is where the people 
     are using them or who is using them.

  I agree. And the Justice Department agrees as well, as Assistant 
Attorney

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General Lanny Breuer announced at our hearing this spring.
  For over 20 years, the ``crack-powder'' disparity in the law has 
contributed to swelling prison populations without focusing on the drug 
kingpins. We must be smarter in our Federal drug policy. Law 
enforcement has been and continues to be a central part of our efforts 
against illegal drugs, but we must also find meaningful, community-
based solutions.
  American justice is about fairness for each individual. To have faith 
in our system Americans must have confidence that the laws of this 
country, including our drug laws, are fair and administered fairly. I 
believe the Fair Sentencing Act of 2009 will move us one step closer to 
reaching that goal. I urge all Senators to support this measure.
  Mr. SPECTER. Mr. President. I have sought recognition to urge support 
for the legislation introduced today by Senator Durbin to completely 
eliminate the unfair and unwarranted sentencing disparity between crack 
and powder cocaine. I am an original co-sponsor of this bill.
  Since the passage of the Anti-Drug Abuse Act of 1986, which 
established the basic framework of mandatory minimum penalties 
currently applicable to Federal drug trafficking offenses, there exists 
a 100-to-1 ratio between crack and powder cocaine. That means it takes 
100 times as much powder cocaine as crack to trigger the same 5-year 
and 10-year mandatory minimum penalties.
  On April 29, 2009, 6 witnesses testified before the Senate Judiciary 
Subcommittee on Crime and Drugs regarding the sentencing disparity 
between crack and powder cocaine, including the Assistant Attorney 
General for the Criminal Division at the Department of Justice, the 
Acting Chair of the U.S. Sentencing Commission, a U.S. District Court 
Judge representing the Judicial Conference of the U.S. Courts, and a 
Police Commissioner from a major urban city. All six witnesses 
testified in favor of an immediate reduction or elimination of this 
disparity.
  At the time Congress established the crack-powder disparity in 1986, 
it did so because it was believed that crack was uniquely addictive and 
was associated with greater levels of violence than powder cocaine.
  Today, more than 20 years later, research has shown that the 
addictive qualities of crack have more to do with its mode of 
administration--smoking compared to inhaling--rather than its chemical 
structure. Moreover, recent studies suggest that levels of violence 
associated with crack are stable or even declining.
  Last year, 80.6 percent of crack offenders were African Americans, 
while only 10.2 percent were white. Compare that with powder cocaine 
prosecutions. For that same year, 30.25 percent of powder cocaine 
offenders were African Americans, 52.5 percent were Hispanic, and 16.4 
percent were white. The average sentence for crack offenders is 2 years 
longer than the average sentence for powder cocaine.
  Let me repeat that. African Americans, who make up approximately 12.3 
percent of the population in the U.S., comprise 80.6 percent of the 
Federal crack offenders.
  It takes about $14,000 worth of powder cocaine compared to only about 
$150 of crack to trigger the 5-year mandatory minimum penalty. Given 
that crack and cocaine powder are the same drug--just in different 
forms--why should we impose the same 5-year sentence for the $150 drug 
deal as for the $14,000 drug deal?
  These sentencing disparities undermine the confidence in the criminal 
justice system. Our courts and our laws must be fundamentally fair; 
just as importantly, they must be perceived as fair by the public. I do 
not believe that the 1986 Act was intended to have a disparate impact 
on minorities but the reality is that it does.
  The White House and the Department of Justice have asked Congress to 
eliminate this unfair sentencing disparity. It is time to correct this 
injustice.
                                 ______