[Congressional Record Volume 156, Number 39 (Wednesday, March 17, 2010)]
[Senate]
[Pages S1680-S1683]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAIR SENTENCING ACT OF 2009
Mr. DURBIN. Mr. President, prior to making the next unanimous consent
request, I wish to make a statement on the Record relative to the bill
that I will be asking for unanimous consent on. It is S. 1789.
This bill is known as the Fair Sentencing Act. It is bipartisan
legislation which has cleared both sides. At the conclusion of my
remarks, I will, of course, ask for unanimous consent, but will ask
permission, if possible, that the statement of Senator Sessions be
printed in the Record. I don't know if he will be able to make it this
evening, but if not, we will do our best to accommodate him.
The Fair Sentencing Act would reduce the sentencing disparity between
crack and powder cocaine and increase penalties for serious drug
offenders. Crack and powder cocaine have a devastating effect on
families in America, and tough anti-cocaine legislation is definitely
needed, but the law must also be fair. Current law is based on an
unjustified distinction between crack and powder cocaine. Simply
possessing five grams of crack--the equivalent of five tiny packets of
sugar that you find in restaurants--carries the same sentence as
selling 500 grams of powder cocaine. That is 500 packets of sugar. Five
packets for crack; 500 packets for powder, the same sentence. This is
known as the 100-to-1 disparity.
I can remember as a Member of the House of Representatives when we
enacted this legislation. Crack cocaine had just appeared on the scene
and it scared us, because it was cheap and it was addictive. We thought
it was more dangerous than many narcotics and left the legacy of crack
babies and broken lives. In our response to this terrible new narcotic
at the time, we enacted this sentencing disparity, saying that 5 five
grams of crack cocaine would lead to the same sentence as 500 grams of
powder cocaine. What it has meant is that, unfortunately, in the years
that followed, we have seen people sent to prison for extended periods
of time for possessing--merely possessing--the smallest amount of
crack.
Disproportionately, African Americans who are addicted use crack
cocaine. The use of powder cocaine is spread across the population
among Whites, Hispanics, and others. So the net result of this was that
the heavy
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sentencing we enacted years ago took its toll primarily in the African-
American community. It resulted in the incarceration of thousands of
people because of this heavy sentencing disparity and a belief in the
African-American community that it was fundamentally unfair. It was the
same cocaine, though in a different form, and they were being singled
out for much more severe and heavy sentences. This debate went on and
on and on. African Americans make up about 30 percent of crack users in
America, but they make up more than 80 percent of those who have been
convicted of Federal crack offenses.
Law enforcement experts say that the crack-powder disparity
undermines trust in the criminal justice system, especially in the
African-American community. In a hearing I held last year, Asa
Hutchinson, a former Member of Congress who was also head of the Drug
Enforcement Administration during the Bush administration, testified
and he said:
Under the current disparity, the credibility of our entire
drug enforcement system is weakened.
The bipartisan U.S. Sentencing Commission and the Judicial Conference
of the United States support reducing this disparity. According to the
Sentencing Commission, this:
would better reduce the gap in sentencing between blacks and
whites than any other single policy change, and it would
dramatically improve the fairness of the Federal sentencing
system.
That comes from the Sentencing Commission.
The Fair Sentencing Act, which I will call up for unanimous consent
momentarily, would reduce the current 100-to-1 disparity to basically
18 to 1. The Fair Sentencing Act would also eliminate the 5-year
mandatory minimum sentence for simple possession of crack cocaine.
Incidentally, this is the only mandatory minimum for simple
possession of a drug by a first-time offender. For this one form of
narcotics, persons who were found in simple possession of crack cocaine
literally faced years in prison for that possession without any
evidence that they were selling it or involved in any other way.
There is a bipartisan consensus that current cocaine sentencing laws
are unjust. Now Democrats and Republicans have come together to address
the issue in a bipartisan way. Last week, the Senate Judiciary
Committee reported the Fair Sentencing Act by a unanimous 19-to-0 vote.
The bill is cosponsored by 16 of the 19 members of the Senate Judiciary
Committee. This is the first time the Senate Judiciary Committee has
ever reported a bill to reduce the crack-powder disparity, and if this
bill is enacted into law, it will be the first time since 1970--40
years ago--that Congress has repealed a mandatory minimum sentence.
Here is what Attorney General Eric Holder said last week in response:
The bill voted unanimously out of the Senate Judiciary
Committee today makes progress toward achieving a more just
sentencing policy while maintaining the necessary law
enforcement tools to appropriately punish violent and
dangerous drug traffickers. I look forward to the Senate and
the House approving this legislation quickly so that it can
be signed into law.
The Fair Sentencing Act is supported by law enforcement groups,
including the National District Attorneys Association, representing
40,000 State and local prosecutors; the National Association of Police
Organizations, representing 240,000 law enforcement officers; and the
International Union of Police Associations, representing more than
100,000 law enforcement officials.
I wish to thank my colleagues on the Senate Judiciary Committee for
supporting the Fair Sentencing Act. I especially wish to thank the
following Members who have done an extraordinary job over the last year
during which we have worked to reach this bipartisan agreement. First,
the chairman of the Senate Judiciary Committee Pat Leahy. He is a great
leader and a patient man. This bill has been sitting on a calendar for
weeks and he keeps coming to me and saying: Durbin, when are we going
to have this ready?
I said: Mr. Chairman, we are working on it.
He had the patience of Job.
I especially wish to thank my friend from Alabama, the Judiciary
Committee ranking member, Jeff Sessions. If asked if there are two
politicians on the floor of the Senate who are dramatically different,
you couldn't find two any more different than Dick Durbin and Jeff
Sessions. We seldom agree on things, but we came together on this, and
we made mutual concessions to come up with a good bipartisan bill.
Jeff, I think, went the extra mile to find some agreement here. He held
to his principles, but we worked it out.
In the process of reaching that agreement, I wish to also thank some
Republican Members who were invaluable. Lindsey Graham was one of the
first to come up to me and say, I want to work with you on this. There
has to be a way we can work this out to the satisfaction of law
enforcement and to reach the standards of justice. I thank Senator
Lindsey Graham, the Republican from South Carolina, for all the work he
put into it.
Tom Coburn of Oklahoma is another Senator I disagree with so many
times politically. He went the extra mile on this. I know it meant a
lot to him and he was very helpful.
Finally, Orrin Hatch from Utah. Senator Hatch from the beginning
said, Don't quit, stick with it, we can reach an agreement. He was an
inspiration to us as we brought this to a conclusion.
We have talked about the need to address the crack-powder disparity
for too long. Every day that passes without taking action to solve this
problem is another day that people are being sentenced under a law that
virtually everyone agrees is unjust. I wish this bill went further. My
initial bill established a 1-to-1 ratio, but this is a good bipartisan
compromise. If this bill is enacted into law, it will immediately
ensure that every year, thousands of people are treated more fairly in
our criminal justice system. I hope my colleagues, when they hear about
our efforts on this, will join in supporting our efforts to deal with
this disparity.
I ask unanimous consent to have printed in the Record a statement by
Wade Henderson, president of The Leadership Conference, in support of
the bill that is currently being considered by the Senate.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Wade Henderson, president of The Leadership Conference on
Civil and Human Rights, issued the following statement
regarding the Senate Judiciary Committee's vote on March 11
to amend and pass The Fair Sentencing Act (S. 1789).
For nearly two decades, The Leadership Conference has
fought for the complete elimination of the unjustified and
racially discriminatory disparity in sentencing between the
crack and powder forms of cocaine. This disparity subverts
justice, undermines confidence in our criminal justice
system, and wreaks havoc on the African-American community.
We strongly supported Senator Dick Durbin's bill, S. 1789,
which would have completely eliminated the disparity.
While we are disappointed that the goal of complete
elimination has not yet been accomplished and that
discrimination will remain, The Leadership Conference
considers the Senate Judiciary Committee's unanimous passage
of the amended version of S. 1789, which reduces the
disparity from a ratio of 100-to-1 to 18-to-1, to be a step
forward.
This legislation represents progress but not the end of the
fight. As Dr. King said, An unjust law is a code that is out
of harmony with the moral law. We are committed to redoubling
our efforts to obtain complete elimination of this sentencing
disparity--the only fair and just solution.
We applaud Senator Durbin for his persistence in seeking
real reform, along with Chairman Patrick Leahy and Senator
Jeff Sessions for their steadfast commitment to addressing
this issue. We appreciate the contributions of Senator
Lindsey Graham toward finding a resolution. We want to note
Senator Ben Cardin's continued commitment to the complete
elimination of the disparity and Senator Russ Feingold's
courageous vote against the amendment. We also want to
recognize the leadership of Representative Bobby Scott and
the Congressional Black Caucus, who have served as the
conscience of Congress on this issue.
Mr. DURBIN. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 316, S. 1789.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 1789) to restore fairness to Federal cocaine
sentencing.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on the Judiciary, with an
amendment
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to strike all after the enacting clause and insert in lieu thereof the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Sentencing Act of
2010''.
SEC. 2. COCAINE SENTENCING DISPARITY REDUCTION.
(a) CSA.--Section 401(b)(1) of the Controlled Substances
Act (21 U.S.C. 841(b)(1)) is amended--
(1) in subparagraph (A)(iii), by striking ``50 grams'' and
inserting ``280 grams''; and
(2) in subparagraph (B)(iii), by striking ``5 grams'' and
inserting ``28 grams''.
(b) Import and Export Act.--Section 1010(b) of the
Controlled Substances Import and Export Act (21 U.S.C.
960(b)) is amended--
(1) in paragraph (1)(C), by striking ``50 grams'' and
inserting ``280 grams''; and
(2) in paragraph (2)(C), by striking ``5 grams'' and
inserting ``28 grams''.
SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE FOR SIMPLE
POSSESSION.
Section 404(a) of the Controlled Substances Act (21 U.S.C.
844(a)) is amended by striking the sentence beginning
``Notwithstanding the preceding sentence,''.
SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG TRAFFICKERS.
(a) Increased Penalties for Manufacture, Distribution,
Dispensation, or Possession With Intent To Manufacture,
Distribute, or Dispense.--Section 401(b)(1) of the Controlled
Substances Act (21 U.S.C. 841(b)) is amended--
(1) in subparagraph (A), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively; and
(2) in subparagraph (B), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'',
and ``$50,000,000'', respectively.
(b) Increased Penalties for Importation and Exportation.--
Section 1010(b) of the Controlled Substances Import and
Export Act (21 U.S.C. 960(b)) is amended--
(1) in paragraph (1), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively; and
(2) in paragraph (2), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'',
and ``$50,000,000'', respectively.
SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING THE COURSE
OF A DRUG TRAFFICKING OFFENSE.
Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission
shall review and amend the Federal sentencing guidelines to
ensure that the guidelines provide an additional penalty
increase of at least 2 offense levels if the defendant used
violence, made a credible threat to use violence, or directed
the use of violence during a drug trafficking offense.
SEC. 6. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN
AGGRAVATING FACTORS.
Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission
shall review and amend the Federal sentencing guidelines to
ensure an additional increase of at least 2 offense levels
if--
(1) the defendant bribed, or attempted to bribe, a Federal,
State, or local law enforcement official in connection with a
drug trafficking offense;
(2) the defendant maintained an establishment for the
manufacture or distribution of a controlled substance, as
generally described in section 416 of the Controlled
Substances Act (21 U.S.C. 856); or
(3)(A) the defendant is an organizer, leader, manager, or
supervisor of drug trafficking activity subject to an
aggravating role enhancement under the guidelines; and
(B) the offense involved 1 or more of the following super-
aggravating factors:
(i) The defendant--
(I) used another person to purchase, sell, transport, or
store controlled substances;
(II) used impulse, fear, friendship, affection, or some
combination thereof to involve such person in the offense;
and
(III) such person had a minimum knowledge of the illegal
enterprise and was to receive little or no compensation from
the illegal transaction.
(ii) The defendant--
(I) knowingly distributed a controlled substance to a
person under the age of 18 years, a person over the age of 64
years, or a pregnant individual;
(II) knowingly involved a person under the age of 18 years,
a person over the age of 64 years, or a pregnant individual
in drug trafficking;
(III) knowingly distributed a controlled substance to an
individual who was unusually vulnerable due to physical or
mental condition, or who was particularly susceptible to
criminal conduct; or
(IV) knowingly involved an individual who was unusually
vulnerable due to physical or mental condition, or who was
particularly susceptible to criminal conduct, in the offense.
(iii) The defendant was involved in the importation into
the United States of a controlled substance.
(iv) The defendant engaged in witness intimidation,
tampered with or destroyed evidence, or otherwise obstructed
justice in connection with the investigation or prosecution
of the offense.
(v) The defendant committed the drug trafficking offense as
part of a pattern of criminal conduct engaged in as a
livelihood.
SEC. 7. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN
MITIGATING FACTORS.
Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission
shall review and amend the Federal sentencing guidelines and
policy statements to ensure that--
(1) if the defendant is subject to a minimal role
adjustment under the guidelines, the base offense level for
the defendant based solely on drug quantity shall not exceed
level 32; and
(2) there is an additional reduction of 2 offense levels if
the defendant--
(A) otherwise qualifies for a minimal role adjustment under
the guidelines and had a minimum knowledge of the illegal
enterprise;
(B) was to receive no monetary compensation from the
illegal transaction; and
(C) was motivated by an intimate or familial relationship
or by threats or fear when the defendant was otherwise
unlikely to commit such an offense.
SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING
COMMISSION.
The United States Sentencing Commission shall--
(1) promulgate the guidelines, policy statements, or
amendments provided for in this Act as soon as practicable,
and in any event not later than 90 days after the date of
enactment of this Act, in accordance with the procedure set
forth in section 21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note), as though the authority under that Act had
not expired; and
(2) pursuant to the emergency authority provided under
paragraph (1), make such conforming amendments to the Federal
sentencing guidelines as the Commission determines necessary
to achieve consistency with other guideline provisions and
applicable law.
SEC. 9. REPORT ON EFFECTIVENESS OF DRUG COURTS.
(a) In General.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to Congress a report analyzing the
effectiveness of drug court programs receiving funds under
the drug court grant program under part EE of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3797-u et seq.).
(b) Contents.--The report submitted under subsection (a)
shall--
(1) assess the efforts of the Department of Justice to
collect data on the performance of federally funded drug
courts;
(2) address the effect of drug courts on recidivism and
substance abuse rates;
(3) address any cost benefits resulting from the use of
drug courts as alternatives to incarceration;
(4) assess the response of the Department of Justice to
previous recommendations made by the Comptroller General
regarding drug court programs; and
(5) make recommendations concerning the performance,
impact, and cost-effectiveness of federally funded drug court
programs.
SEC. 10. UNITED STATES SENTENCING COMMISSION REPORT ON IMPACT
OF CHANGES TO FEDERAL COCAINE SENTENCING LAW.
Not later than 5 years after the date of enactment of this
Act, the United States Sentencing Commission, pursuant to the
authority under sections 994 and 995 of title 28, United
States Code, and the responsibility of the United States
Sentencing Commission to advise Congress on sentencing policy
under section 995(a)(20) of title 28, United States Code,
shall study and submit to Congress a report regarding the
impact of the changes in Federal sentencing law under this
Act and the amendments made by this Act.
Mr. LEAHY. Mr. President, today, I join Senators from both sides of
the aisle to pass the historic and bipartisan Fair Sentencing Act.
The racial imbalance that has resulted from the cocaine sentencing
disparity disparages the Constitution's promise of equal treatment for
all Americans. Although this bill is not perfect, its passage marks a
significant step forward in making our drug laws fairer and more
rational. Despite my belief that parity was the better policy, I have
joined with Senator Durbin and support the progress represented by his
compromise with Senator Sessions. It reduces the disparities that leave
some in jail for years while their more privileged counterparts go home
after relatively brief sentences. Today, that compromise means we are
one step closer to fixing this decades-old injustice. I commend
Senators Durbin, Sessions, Graham, Coburn, and Hatch for negotiating
the compromise that allowed this important piece of legislation to pass
the Senate Judiciary Committee by a unanimous vote. As chairman, I was
able to report on behalf of the Senate Judiciary Committee the first
measure we have ever been able to approve that begins to undo the
unjust sentencing disparity.
For more than 20 years, our Nation has used a Federal cocaine
sentencing policy that treats ``crack'' offenders 100 times more
harshly than other cocaine offenders, without a 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
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and unjust. This policy is wrong and unfair, and it has needlessly
swelled our prisons, wasting precious Federal resources.
These disproportionate punishments have had a disparate impact on
minority communities. This is unjust and runs contrary to our
fundamental principles of equal justice under law. According to the
latest statistics of the independent and nonpartisan United States
Sentencing Commission, African Americans continue to make up the large
majority of Federal crack cocaine convictions, accounting for 80
percent of all Federal crack cocaine offenses, while they represent a
much smaller fraction of those who use the drug. In a letter to our
committee, John Payton, the president of the NAACP Legal Defense Fund,
called this disparity ``one of the most notorious symbols of racial
discrimination in the modern criminal justice system.''
These disparate penalties, which Congress created in the mid-1980s,
have failed to address basic concerns. The primary goal underlying the
crack sentence structure 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 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 returns the focus of Federal cocaine
sentencing policy to drug kingpins, rather than street level dealers,
and eliminates 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 commonly abused drug.
This bill does not legalize drugs, nor does it eliminate harsh
sentences. In fact, this bill toughens some penalties. It increase
fines for major drug traffickers and provides sentencing enhancements
for acts of violence committed during the course of a drug trafficking
offense. But this bill also helps to ensure that our system will no
longer affect many minority and urban communities more harshly than
offenders who use drugs in the suburbs and corporate offices. That
inequality has reduced trust in law enforcement and cooperation with
police, which makes us all less safe.
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. 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
which enable people to feel they are being treated fairly. I look
forward to working with Chief Kerlikowske, the director of the
President's Office of National Drug Control Policy, to develop and
deploy such a strategy.
Since 1995, the United States Sentencing Commission has issued report
after report calling on Congress to address this unfair sentencing
disparity. We would not be making the progress we are today without the
leadership of the United States Sentencing Commission. I thank them and
their chairman, Judge William Sessions.
I thank the U.S. Department of Justice for the testimony of Assistant
Attorney General Lanny Breuer at our hearing on this matter last year.
Attorney General Eric Holder also reminded us that ``the stakes are
simply too high to let reform in this area wait any longer.'' I agree.
It is time for the Senate and House to act.
After more than 20 years, the Senate has finally acted on legislation
to correct the crack-powder disparity and the harm to public confidence
in our justice system it created. Although this bill is not perfect and
it is not the bill we introduced in order to correct these
inequalities, I believe the Fair Sentencing Act moves us one step
closer to reaching the important goal of equal justice for all. I urge
the House to act quickly so that the President can sign this historic
legislation into law.
Mr. DURBIN. Mr. President, I ask unanimous consent that the committee
substitute amendment be agreed to; the bill, as amended, be read a
third time and passed; the motions to reconsider be laid upon the
table, with no intervening action or debate, and any statements related
to the bill be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee amendment in the nature of a substitute was agreed to.
The bill (S. 1789), as amended, was ordered to be engrossed for a
third reading, was read the third time, and passed.
Mr. DURBIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________