[Congressional Record Volume 156, Number 112 (Wednesday, July 28, 2010)]
[House]
[Pages H6196-H6204]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
{time} 1320
FAIR SENTENCING ACT OF 2010
Mr. SCOTT of Virginia. Mr. Speaker, I move to suspend the rules and
pass the bill (S. 1789) to restore fairness to Federal cocaine
sentencing.
The Clerk read the title of the bill.
The text of the bill is as follows:
S. 1789
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
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
[[Page H6197]]
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.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Scott) and the gentleman from Texas (Mr. Smith) each will
control 20 minutes.
The Chair recognizes the gentleman from Virginia.
General Leave
Mr. SCOTT of Virginia. Mr. Speaker, I ask unanimous consent that all
Members have 5 legislative days to revise and extend their remarks and
include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. SCOTT of Virginia. I yield myself such time as I may consume.
Mr. Speaker, S. 1789, the Fair Sentencing Act of 2010, is a
bipartisan compromise that was negotiated and drafted by Democratic and
Republican members of the Senate Judiciary Committee. It then passed
the Senate Judiciary Committee and the Senate by unanimous consent.
The legislation will reduce the 100-to-1 sentencing disparity between
crack and powder cocaine in Federal law from 100-to-1 down to 18-to-1.
The crack penalties, under present law, for example, it only takes five
grams of crack to trigger a 5-year mandatory minimum sentence, but for
powder cocaine it takes 500 grams to trigger the same 5-year mandatory
sentence, a 100-to-1 ratio.
This disparity is particularly egregious when you consider that the
Sentencing Commission has concluded that there is no pharmacological
difference between the two forms of cocaine, and that 80 percent of the
crack defendants are black, whereas only 30 percent of the powder
cocaine defendants are black.
The crack penalties also create bizarre sentences when you consider
sentences such as the 24 \1/2\-year sentence given to Kimba Smith for
behavior that was just inferentially involved with her boyfriend's
cocaine dealing.
The legislation moves the threshold amount for the 5-year mandatory
minimum from five grams to one ounce, reducing the disparity from 100-
to-1 to 18-to-1. The legislation does not fully eliminate the 100-to-1
disparity in sentencing for crack and powder, but it does make good
progress in addressing what is widely recognized as unfair treatment of
like offenders based simply on the form of cocaine they possessed.
The bill also addresses another concern. Arguments are made that
crack defendants are more likely to use violence or minors in the
distribution, and this bill specifically requires the Sentencing
Commission to significantly increase penalties for drug violations
involving violence, threats of violence, or use of minors, and another
long list of aggravating activities that would be involved. This way
the defendant is sentenced for what he or she actually did, not the
form of cocaine involved.
Many organizations are supporting S. 1789, including the Federal Law
Enforcement Officers Association, the National District Attorneys
Association, the National Association of Police Officers, the Council
of Prison Locals, and several conservative religious organizations such
as Prison Fellowship and the National Association of Evangelicals. And
all of the civil rights organizations that one can imagine are also
supporting the legislation.
I would like to thank the sponsors of the Senate bill, Senators
Durbin of Illinois and Sessions of Alabama, and Orrin Hatch of Utah,
who came together to pass this important bipartisan legislation.
There are many Members of the House who have worked tirelessly over
the years to reform this disparity, including chairman of the Judiciary
Committee, Mr. Conyers; Sheila Jackson Lee; Maxine Waters; Charlie
Rangel; and Mel Watt.
On behalf of the organizations and Members of Congress who support S.
1789, I urge my colleagues to support the legislation.
I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, those who fail to learn the lessons of history often pay
a price. Unfortunately, the real cost usually falls on others. In the
1980s, America faced an epidemic created by a new, more potent form of
cocaine known as crack. Its abuse spread through major cities and
across the country at a stunning speed. Along with crack came guns and
violence, which riddled many urban communities.
These communities cried out for help, and in 1986 Congress responded.
We enacted tough penalties to protect these neighborhoods and bring an
end to the scourge of crack cocaine. The penalties helped make
America's communities safer.
Now Congress is considering legislation to wind down the fight
against drug addiction and drug-related violence. Reducing the
penalties for crack cocaine could expose our neighborhoods to the same
violence and addiction that caused Congress to act in the first place.
Twenty-five years ago, crack was cheap, easily available, and highly
profitable. According to the Drug Enforcement Agency, never before had
any form of cocaine been available at such low prices and at such high
purity. As a result, the number of Americans addicted to cocaine
increased dramatically. Crack cocaine devastated many communities,
especially inner-city communities. Black Americans who lived in these
communities bore the brunt of the violence associated with the drug
trade.
Today, crime rates, particularly for violent crimes, are at their
lowest levels in more than 30 years, thanks in large part to the
enactment of tough penalties for drug trafficking and other offenses.
Crack and powder cocaine use has dropped by almost two-thirds in the
past 20 years, from 5.8 million users in 1985 to 2.1 million users in
2007. According to the Bureau of Justice Statistics, crime
victimization rates for black Americans have fallen by more than two-
thirds since enactment of these tough Federal trafficking penalties.
What's wrong with that? Why do we want to risk another surge of
addiction and violence by reducing penalties?
Many argue that Federal prisons are filled with addicts convicted of
simple possession of cocaine, but that's not true. The vast majority of
Federal drug offenders are convicted for drug trafficking. In fiscal
year 2009, the U.S. Sentencing Commission reports that there were
25,000 Federal drug trafficking convictions compared to fewer than 300
convictions for simple possession. So why do we want to make it more
difficult to take drug traffickers off the streets and easier for them
to peddle their lethal product?
Crack cocaine is associated with a greater degree of violence than
most other drugs. Crack offenders are also more likely to have prior
convictions and lengthier criminal histories than powder cocaine
offenders. It is these aggravating factors, which are more common to
crack cocaine trafficking, that contribute to higher Federal
[[Page H6198]]
crack sentences. These aggravating factors also render many Federal
crack offenders ineligible for the so-called ``safety valve
provision.'' The safety valve allows low-level offenders to be
sentenced below the statutory mandatory penalties if they meet certain
criteria, including no significant criminal history.
So why should we reduce the ratio for defendants who are more
violent, more likely to have criminal records, and less likely to
benefit from the safety valve provision that already provides a
mechanism for reduced penalties? Why are we coddling some of the most
dangerous drug traffickers in America?
Proponents of reducing or eliminating the crack/powder ratio argue
that crack penalties impact a larger number of minorities than powder
cocaine penalties. But the percentage of minority defendants for
Federal crack and powder cocaine offenses is quite similar. Eighty-two
percent of crack offenders and 90 percent of powder cocaine offenders
are minorities, though black Americans comprise the majority of Federal
crack cocaine offenders.
Crack and powder cocaine offenders are even sentenced with mandatory
penalties at similar rates. In 2009, 80 percent of crack cocaine
offenders and 77 percent of powder cocaine offenders were convicted
under a mandatory penalty statute. The bill before us today, S. 1789,
lowers the ratio for Federal crack cocaine offenses from 100-to-1 to
18-to-1. The bill also eliminates the mandatory penalties for crack
cocaine possession, making it only a misdemeanor under Federal law. Why
enact legislation that could endanger our children and bring violence
back to our inner-city communities?
S. 1789 includes a requirement that the U.S. Sentencing Commission
review and amend the applicable guidelines for crack offenses involving
violence. However, since Federal judges are not required to adhere to
the guidelines, there is no guarantee that any increased penalty will
be imposed under this provision.
Last year, the House Judiciary Committee reported legislation, over
Republican opposition, that would have eliminated entirely the ratio
between crack and powder cocaine. Before that, the Obama administration
relaxed enforcement of marijuana laws.
Mr. Speaker, the Democratic Party teeters on the edge of becoming the
face of deficits, drugs, and job destruction. I cannot support
legislation that might enable the violent and devastating crack cocaine
epidemic of the past to become a clear and present danger.
{time} 1330
Mr. Speaker, for these reasons, I urge my colleagues to oppose this
legislation.
I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 3 minutes to the majority
whip, the gentleman from South Carolina (Mr. Clyburn).
Mr. CLYBURN. Mr. Speaker, I want to first thank my good friend,
subcommittee Chairman Bobby Scott, for yielding me this time and for
his leadership on this very important issue. He and committee Chairman
Conyers have worked for years to eliminate the unjust and
discriminatory disparities between crack cocaine and powder cocaine.
Although I'm disappointed that this measure does not entirely
eliminate the disparity, I want to commend Senators Durbin, Sessions,
and Coburn for crafting a very significant compromise. The Fair
Sentencing Act of 2009 will significantly reduce the disparity in
sentencing for crack and powder cocaine and help to correct an enormous
disparity in our criminal justice system.
When the current law was passed, Congress felt that crack cocaine was
a plague that was destroying minority communities. Twenty years of
experience has taught us that many of our initial beliefs were wrong.
We now know that there's little or no pharmacological distinction
between crack cocaine and powder cocaine, yet the punishment for these
offenses remains radically different.
Down where I come from, Mr. Speaker, we say that when one learns
better, one should do better.
Equally troubling is the enormous growth in the prison population,
especially among minority youth. The current drug sentencing policy is
the single greatest cause of the record levels of incarceration in our
country. One in every 31 Americans is in prison or on parole or on
probation, including one in 11 African Americans. This is unjust and
runs contrary to our fundamental principles of equal protection under
the law.
Since 1995, the United States Sentencing Commission has issued report
after report calling on Congress to address this unfair disparity.
According to the Sentencing Commission, restoring sentencing parity
will do more than any other policy change to close the gap in
incarceration rates between African Americans and white Americans.
The American drug epidemic is a serious problem, and we must address
that problem. But our drug laws must be smart, fair, and rational. The
legislation to be considered today takes a significant step towards
striking that balance.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from Wisconsin (Mr. Sensenbrenner), a former chairman of the Judiciary
Committee.
Mr. SENSENBRENNER. Mr. Speaker, I rise in support of this
legislation. It is a fair compromise. It deals with conflicting issues,
and it looked at the data on who was indicted and who has been
sentenced both by race as well as by the amount of cocaine that they
possessed.
Unlike some allegations, this bill does not let those who possess
crack cocaine off easily. The sentencing disparity is 18-to-1. That
means that someone who possesses crack cocaine only has to have one-
eighteenth of the amount of someone who possesses powder cocaine. So I
don't think that people who either deal in crack cocaine or who possess
crack cocaine are getting off the hook by reducing the ratio from 100-
to-1 to 18-to-1.
The Sentencing Commission has been set up by this Congress to look at
sentencing patterns and look at sentencing statistics. For the last 15
years, they have called for a change in the disparity and the minimum
sentences between those who are indicted for violating the crack
cocaine laws versus those who are indicted for violating the powder
cocaine laws.
This is a very fair compromise. I salute the three members of the
other body who worked the compromise out. It is a compromise that
should be endorsed by this body and sent to the President. I urge an
``aye'' vote.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 2 minutes to the
gentlelady from Texas who has sponsored one of the many bills on this
issue and has worked hard to eliminate the disparity altogether, Ms.
Jackson Lee.
(Ms. JACKSON LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON LEE of Texas. I want to thank the gentleman from Virginia
for being a champion of this issue of eliminating the disparities that
have so long plagued so many communities. I thank the chairman, John
Conyers, for being persistent over the years on the criminal justice
issues--even coming to Houston, Texas, and listening to a teeming room
of individuals who came to tell him how they had been discriminated
against by this overwhelming inequitable law dealing with crack
cocaine. Thank you.
Today we're doing something that is not going to be soft on crime.
But let me see if you understand this.
It takes 500 grams of powder cocaine to trigger the 5-year mandatory
minimum. It just takes 5 grams of crack cocaine. Similarly it takes 5
kilograms of powder cocaine to trigger the 10-year mandatory minimum
but 50 grams of crack cocaine.
And so it is important that this 1-to-18 be put in place in response
to the 1980s when we thought this devastating act of using drugs was
the underpinnings of crime. But what we have seen and what the U.S.
Sentencing Commission has seen is that we're creating crime by throwing
these individuals in jail instead of rehabilitation and by keeping this
oppressive sentencing structure.
So for the first time, we're eliminating the 5-year mandatory minimum
prison term for first-time possession of crack cocaine and it
encourages the U.S. Sentencing Commission to amend the sentencing
guidelines.
[[Page H6199]]
In addition, however, there's more to go. Passing the Promise Bill to
detour young people away from crime. H.R. 265, the bill I introduced,
which was the underpinnings of the S. 1789, had a number of other
provisions that would be dealing with rehabilitation and drug courts.
So there's more work to be done, Mr. Speaker. But I believe this is a
first step and all good-thinking Americans who understand justice will
appreciate the fact that we are eliminating these disparities. And in
particular, I will say to you that this fell heavily on the poor
African American and Hispanic communities.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. SCOTT of Virginia. Mr. Speaker, I yield the gentlelady an
additional minute.
Ms. JACKSON LEE of Texas. I thank the distinguished gentleman.
The statistics are very clear that the burden fell on a population
that suffered more by not getting into rehabilitation than others. It
is very clear that those numbers are strong.
So I would simply say that as we begin our work on establishing
fairness, this is a first step. And I would say to the distinguished
Members that we can do better on rehabilitation, drug court,
intervention--which allows people to get into rehabilitation and have
an obligation to finish.
And the main thing that I want to leave us with, doing this will help
us detour any number of individuals to be able to support their family
and maybe be real role models for children who we likewise want to
detour away from crime by having an innovative juvenile justice system
by passing this bill and going on to have criminal justice reform as we
pass the Promise Act as well.
I rise in support of S. 1789, a bill that seeks to amend the
Controlled Substances Act and the Controlled Substances Import and
Export Act in order to lessen the disparity between penalties for crack
cocaine and powder cocaine that permeates the Sentencing Guidelines. I
also want to thank Senator Richard Durbin (IL), for introducing this
important legislation and being a leader on this issue.
This act requires Congress to change existing legislation in order to
increase the amount of a controlled substance or mixture containing a
cocaine base (i.e., crack cocaine) required for the imposition of
mandatory minimum prison terms for trafficking. This bill also calls
for an increase of monetary penalties for drug trafficking and for the
importation and exportation of controlled substances.
Last year I introduced a bill called the Drug Sentencing Reform and
Cocaine Kingpin Trafficking Act of 2009, H.R. 265, in which I proposed
many of the reforms proposed in S. 1789. In H.R. 265, I proposed 1 to 1
for crack and cocaine and added a long list of drug treatment measures.
It is widely known that it takes 100 times more powder cocaine than
crack cocaine to trigger the 5- and 10-year mandatory minimum
sentences. While it takes 500 grams of powder cocaine to trigger the 5-
year mandatory minimum sentence, it takes just 5 grams of crack cocaine
to trigger that sentence. Similarly, while it takes 5 kilograms of
powder cocaine to trigger the 10-year mandatory minimum sentence, 50
grams of crack cocaine will trigger the same sentence.
This disparity made no sense when it was initially enacted, and makes
absolutely no sense today, because cocaine base commonly known as
`crack cocaine,' is made by dissolving cocaine hydrochloride, which is
commonly known as `powder cocaine,' in a solution of sodium bicarbonate
(or a similar agent) and water. Therefore, crack and powder cocaine are
simply different forms of the same substance and all crack cocaine
originates as powder cocaine.
Both forms of cocaine cause identical physical effects, although
crack is smoked, while powder cocaine is typically snorted or injected.
Epidemiological data show that smoking a drug delivers it to the brain
more rapidly, which increases the likelihood of addiction. Therefore,
differences in the typical method of administration of the two forms of
the drug, and not differences in the inherent properties of the two
forms of the drug, make crack cocaine potentially more addictive to
typical users than powder cocaine. Both forms of the drug are
addictive, however, and the treatment protocol for the drug is the same
regardless of the form of the drug the patient has used.
Although Congress in the mid-1980s was understandably concerned that
the low-cost and potency of crack cocaine would fuel an epidemic of use
by minors, the epidemic of crack cocaine use by young people never
materialized to the extent feared. In fact, in 2005, the rate of powder
cocaine use among young adults was almost 7 times as high as the rate
of crack cocaine use. Furthermore, sentencing data suggest that young
people do not play a major role in crack cocaine trafficking at the
Federal level.
The current 100 to 1 penalty structure undermines various
congressional objectives set forth in the Anti-Drug Abuse Act of 1986.
Data collected by the U.S. Sentencing Commission show that Federal
resources have been targeted at offenders who are subject to the
mandatory minimum sentences, which sweep in low-level crack cocaine
users and dealers.
It is time for us to realize that the only real difference between
these two substances is that a disproportionate number of the races
flock to one or the other. It follows that more whites use cocaine, and
more African Americans use crack cocaine. The unwarranted sentencing
disparity not only overstates the relative harmfulness of the two forms
of the drug and diverts federal resources from high-level drug
traffickers, but it also disproportionately affects the African-
American community. According to the U.S. Sentencing Commission's May
2007 Report, 82 percent of Federal crack cocaine offenders sentenced in
2006 were African-American, while 8 percent were Hispanic and 8 percent
were white.
Like H.R. 265, my bill, S. 1789 will eliminate the five-year
mandatory minimum prison term for first-time possession of crack
cocaine. It also encourages the U.S. Sentencing Commission to amend its
sentencing guidelines to (1) increase sentences for defendants
convicted of using violence during a drug trafficking offense; (2)
incorporate aggravating and mitigating factors in its guidelines for
drug trafficking offenses; (3) promulgate guidelines, policy
statements, or amendments required by this Act as soon as practicable,
but not later than 90 days after the enactment of this Act; and (4)
study and report to Congress on the impact of changes in sentencing law
under this Act.
For the foregoing reasons, I stand with Mr. Durbin in support of
amending the Controlled Substances Act and the Controlled Substances
Import and Export Act in order to lessen the disparity between
penalties for crack cocaine and powder cocaine that permeate the
Sentencing Guidelines.
I urge my colleagues to support this bill.
H.R. 265
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Drug Sentencing Reform and
Cocaine Kingpin Trafficking Act of 2009''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Cocaine base (commonly known as ``crack cocaine'') is
made by dissolving cocaine hydrochloride (commonly known as
``powder cocaine'') in a solution of sodium bicarbonate (or a
similar agent) and water. Therefore, crack and powder cocaine
are simply different forms of the same substance and all
crack cocaine originates as powder cocaine.
(2) The physiological and psychotropic effects of cocaine
are similar regardless of whether it is in the form of
cocaine base (crack) or cocaine hydrochloride (powder).
(3) One of the principal objectives of the Anti-Drug Abuse
Act of 1986, which established different mandatory minimum
penalties for different drugs, was to target Federal law
enforcement and prosecutorial resources on serious and major
drug traffickers.
(4) In 1986, Congress linked mandatory minimum penalties to
different drug quantities, which were intended to serve as
proxies for identifying offenders who were ``serious''
traffickers (managers of retail drug trafficking) and
``major'' traffickers (manufacturers or the kingpins who
headed drug organizations).
(5) Although drug purity and individual tolerance vary,
making it difficult to state with specificity the individual
dose of each form of cocaine, 5 grams of powder cocaine
generally equals 25 to 50 individual doses and 500 grams of
powder cocaine generally equals 2,500 to 5,000 individual
doses, while 5 grams of crack cocaine generally equals 10 to
50 individual doses (or enough for a heavy user to consume in
one weekend) and 500 grams of crack cocaine generally equals
100 to 500 individual doses.
(6) In part because Congress believed that crack cocaine
had unique properties that made it instantly addictive, the
Anti-Drug Abuse Act of 1986 established an enormous disparity
(a 100 to 1 powder-to-crack ratio) in the quantities of
powder and crack cocaine that trigger 5- and 10-year
mandatory minimum sentences. This disparity permeates the
Sentencing Guidelines.
(7) Congress also based its decision to establish the 100
to 1 quantity ratio on the beliefs that--
(A) crack cocaine distribution and use was associated with
violent crime to a much greater extent than was powder
cocaine;
(B) prenatal exposure to crack cocaine was particularly
devastating for children of crack users;
(C) crack cocaine use was particularly prevalent among
young people; and
(D) crack cocaine's potency, low cost, and ease of
distribution and use were fueling its widespread use.
[[Page H6200]]
(8) As a result, it takes 100 times more powder cocaine
than crack cocaine to trigger the 5- and 10-year mandatory
minimum sentences. While it takes 500 grams of powder cocaine
to trigger the 5-year mandatory minimum sentence, it takes
just 5 grams of crack cocaine to trigger that sentence.
Similarly, while it takes 5 kilograms of powder cocaine to
trigger the 10-year mandatory minimum sentence, 50 grams of
crack cocaine will trigger the same sentence.
(9) Most of the assumptions on which the current penalty
structure was based have turned out to be unfounded.
(10) Studies comparing usage of powder and crack cocaine
have shown that there is little difference between the two
forms of the drug and fundamentally undermine the current
quantity-based sentencing disparity. More specifically, the
studies have shown the following:
(A) Both forms of cocaine cause identical effects, although
crack is smoked, while powder cocaine is typically snorted.
Epidemiological data show that smoking a drug delivers it to
the brain more rapidly, which increases likelihood of
addiction. Therefore, differences in the typical method of
administration of the two forms of the drug, and not
differences in the inherent properties of the two forms of
the drug, make crack cocaine potentially more addictive to
typical users than powder cocaine. Both forms of the drug are
addictive, however, and the treatment protocol for the drug
is the same regardless of the form of the drug the patient
has used.
(B) Violence committed by crack users is relatively rare,
and overall violence has decreased for both powder and crack
cocaine offenses. Almost all crack-related violence is
systemic violence that occurs within the drug distribution
process. Sentencing enhancements are better suited to punish
associated violence, which are separate, pre-existing crimes
in and of themselves.
(C) The negative effects of prenatal exposure to crack
cocaine were vastly overstated. They are identical to the
effects of prenatal exposure to powder cocaine and do not
serve as a justification for the sentencing disparity between
crack and powder.
(D) Although Congress in the mid-1980s was understandably
concerned that the low-cost and potency of crack cocaine
would fuel an epidemic of use by minors, the epidemic of
crack cocaine use by young people never materialized to the
extent feared. In fact, in 2005, the rate of powder cocaine
use among young adults was almost 7 times as high as the rate
of crack cocaine use. Furthermore, sentencing data suggest
that young people do not play a major role in crack cocaine
trafficking at the Federal level.
(E) The current 100 to 1 penalty structure undermines
various congressional objectives set forth in the Anti-Drug
Abuse Act of 1986. Data collected by the United States
Sentencing Commission show that Federal resources have been
targeted at offenders who are subject to the mandatory
minimum sentences, which sweep in low-level crack cocaine
users and dealers.
(11) In 1988, Congress set a mandatory minimum sentence for
mere possession of crack cocaine, the only controlled
substance for which there is a mandatory minimum sentence for
simple possession for a first-time offender.
(12) Major drug traffickers and kingpins traffic in powder,
not crack.
(13) Contrary to Congress's objective of focusing Federal
resources on drug kingpins, the majority of Federal powder
and crack cocaine offenders are those who perform low level
functions in the supply chain.
(14) As a result of the low-level drug quantities that
trigger lengthy mandatory minimum penalties for crack
cocaine, the concentration of lower level Federal offenders
is particularly pronounced among crack cocaine offenders,
more than half of whom were street level dealers in 2005.
(15) The Departments of Justice, Treasury, and Homeland
Security are the agencies with the greatest capacity to
investigate, prosecute, and dismantle the highest level of
drug trafficking organizations, but investigations and
prosecutions of low-level offenders divert Federal personnel
and resources from the prosecution of the highest-level
traffickers, for which such agencies are best suited.
(16) The unwarranted sentencing disparity not only
overstates the relative harmfulness of the two forms of the
drug and diverts Federal resources from high-level drug
traffickers, but it also disproportionately affects the
African-American community. According to the United States
Sentencing Commission's May 2007 Report, 82 percent of
Federal crack cocaine offenders sentenced in 2006 were
African-American, while 8 percent were Hispanic and 8 percent
were White.
(17) Only 13 States have sentencing laws that distinguish
between powder and crack cocaine.
SEC. 3. COCAINE SENTENCING DISPARITY ELIMINATION.
(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 ``5 kilograms''; and
(2) in subparagraph (B)(iii), by striking ``5 grams'' and
inserting ``500 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 ``5 kilograms''; and
(2) in paragraph (2)(C), by striking ``5 grams'' and
inserting ``500 grams''.
SEC. 4. ELIMINATION OF MANDATORY MINIMUM 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. 5. INCREASED EMPHASIS ON CERTAIN AGGRAVATING AND
MITIGATING FACTORS.
Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission
shall review and, if appropriate, amend the sentencing
guidelines to ensure that the penalties for an offense
involving trafficking of a controlled substance--
(1) provide tiered enhancements for the involvement of a
dangerous weapon or violence, including, if appropriate--
(A) an enhancement for the use or brandishment of a
dangerous weapon;
(B) an enhancement for the use, or threatened use, of
violence; and
(C) any other enhancement the Commission considers
necessary;
(2) adequately take into account the culpability of the
defendant and the role of the defendant in the offense,
including consideration of whether enhancements should be
added, either to the existing enhancements for aggravating
role or otherwise, that take into account aggravating factors
associated with the offense, including--
(A) whether the defendant committed the offense as part of
a pattern of criminal conduct engaged in as a livelihood;
(B) whether the defendant is an organizer or leader of drug
trafficking activities involving five or more persons;
(C) whether the defendant maintained an establishment for
the manufacture or distribution of the controlled substance;
(D) whether the defendant distributed a controlled
substance to an individual under the age of 21 years of age
or to a pregnant woman;
(E) whether the defendant involved an individual under the
age of 18 years or a pregnant woman in the offense;
(F) whether the defendant manufactured or distributed the
controlled substance in a location described in section
409(a) or section 419(a) of the Controlled Substances Act (21
U.S.C. 849(a) or 860(a));
(G) whether the defendant bribed, or attempted to bribe, a
Federal, State, or local law enforcement officer in
connection with the offense;
(H) whether the defendant was involved in importation into
the United States of a controlled substance;
(I) whether bodily injury or death occurred in connection
with the offense;
(J) whether the defendant committed the offense after
previously being convicted of a felony controlled substances
offense; and
(K) any other factor the Commission considers necessary;
and
(3) adequately take into account mitigating factors
associated with the offense, including--
(A) whether the defendant had minimum knowledge of the
illegal enterprise;
(B) whether the defendant received little or no
compensation in connection with the offense;
(C) whether the defendant acted on impulse, fear,
friendship, or affection when the defendant was otherwise
unlikely to commit such an offense; and
(D) whether any maximum base offense level should be
established for a defendant who qualifies for a mitigating
role adjustment.
SEC. 6. OFFENDER DRUG TREATMENT INCENTIVE GRANTS.
(a) Grant Program Authorized.--The Attorney General shall
carry out a grant program under which the Attorney General
may make grants to States, units of local government,
territories, and Indian tribes in an amount described in
subsection (c) to improve the provision of drug treatment to
offenders in prisons, jails, and juvenile facilities.
(b) Requirements for Application.--
(1) In general.--To be eligible to receive a grant under
subsection (a) for a fiscal year, an entity described in such
subsection shall, in addition to any other requirements
specified by the Attorney General, submit to the Attorney
General an application that demonstrates that, with respect
to offenders in prisons, jails, and juvenile facilities who
require drug treatment and who are in the custody of the
jurisdiction involved, during the previous fiscal year that
entity provided drug treatment meeting the standards
established by the Single State Authority for Substance Abuse
(as that term is defined in section 7(e)) for the relevant
State to a number of such offenders that is two times the
number of such offenders to whom that entity provided drug
treatment during the fiscal year that is 2 years before the
fiscal year for which that entity seeks a grant.
(2) Other requirements.--An application under this section
shall be submitted in such form and manner and at such time
as specified by the Attorney General.
(c) Allocation of Grant Amounts Based on Drug Treatment
Percent Demonstrated.--The Attorney General shall allocate
amounts under this section for a fiscal year based on the
percent of offenders described in subsection (b)(1) to whom
an entity provided drug treatment in the previous fiscal
year, as demonstrated by that entity in its application under
that subsection.
[[Page H6201]]
(d) Uses of Grants.--A grant awarded to an entity under
subsection (a) shall be used--
(1) for continuing and improving drug treatment programs
provided at prisons, jails, and juvenile facilities of that
entity; and
(2) to strengthen rehabilitation efforts for offenders by
providing addiction recovery support services, such as job
training and placement, education, peer support, mentoring,
and other similar services.
(e) Reports.--An entity that receives a grant under
subsection (a) during a fiscal year shall, not later than the
last day of the following fiscal year, submit to the Attorney
General a report that describes and assesses the uses of such
grant.
(f) Authorization of Appropriations.--There are authorized
to be appropriated $10,000,000 to carry out this section for
each of fiscal years 2009 and 2010.
SEC. 7. GRANTS FOR DEMONSTRATION PROGRAMS TO REDUCE DRUG USE
SUBSTANCE ABUSERS.
(a) Awards Required.--The Attorney General may make
competitive grants to eligible partnerships, in accordance
with this section, for the purpose of establishing
demonstration programs to reduce the use of alcohol and other
drugs by supervised substance abusers during the period in
which each such substance abuser is in prison, jail, or a
juvenile facility, and until the completion of parole or
court supervision of such abuser.
(b) Use of Grant Funds.--A grant made under subsection (a)
to an eligible partnership for a demonstration program, shall
be used--
(1) to support the efforts of the agencies, organizations,
and researchers included in the eligible partnership, with
respect to the program for which a grant is awarded under
this section;
(2) to develop and implement a program for supervised
substance abusers during the period described in subsection
(a), which shall include--
(A) alcohol and drug abuse assessments that--
(i) are provided by a State-approved program; and
(ii) provide adequate incentives for completion of a
comprehensive alcohol or drug abuse treatment program,
including through the use of graduated sanctions; and
(B) coordinated and continuous delivery of drug treatment
and case management services during such period; and
(3) to provide addiction recovery support services (such as
job training and placement, peer support, mentoring,
education, and other related services) to strengthen
rehabilitation efforts for substance abusers.
(c) Application.--To be eligible for a grant under
subsection (a) for a demonstration program, an eligible
partnership shall submit to the Attorney General an
application that--
(1) identifies the role, and certifies the involvement, of
each agency, organization, or researcher involved in such
partnership, with respect to the program;
(2) includes a plan for using judicial or other criminal or
juvenile justice authority to supervise the substance abusers
who would participate in a demonstration program under this
section, including for--
(A) administering drug tests for such abusers on a regular
basis; and
(B) swiftly and certainly imposing an established set of
graduated sanctions for non-compliance with conditions for
reentry into the community relating to drug abstinence
(whether imposed as a pre-trial, probation, or parole
condition, or otherwise);
(3) includes a plan to provide supervised substance abusers
with coordinated and continuous services that are based on
evidence-based strategies and that assist such abusers by
providing such abusers with--
(A) drug treatment while in prison, jail, or a juvenile
facility;
(B) continued treatment during the period in which each
such substance abuser is in prison, jail, or a juvenile
facility, and until the completion of parole or court
supervision of such abuser;
(C) addiction recovery support services;
(D) employment training and placement;
(E) family-based therapies;
(F) structured post-release housing and transitional
housing, including housing for recovering substance abusers;
and
(G) other services coordinated by appropriate case
management services;
(4) includes a plan for coordinating the data
infrastructures among the entities included in the eligible
partnership and between such entities and the providers of
services under the demonstration program involved (including
providers of technical assistance) to assist in monitoring
and measuring the effectiveness of demonstration programs
under this section; and
(5) includes a plan to monitor and measure the number of
substance abusers--
(A) located in each community involved; and
(B) who improve the status of their employment, housing,
health, and family life.
(d) Reports to Congress.--
(1) Interim report.--Not later than September 30, 2009, the
Attorney General shall submit to Congress a report that
identifies the best practices relating to the comprehensive
and coordinated treatment of substance abusers, including the
best practices identified through the activities funded under
this section.
(2) Final report.--Not later than September 30, 2010, the
Attorney General shall submit to Congress a report on the
demonstration programs funded under this section, including
on the matters specified in paragraph (1).
(e) Definitions.--In this section:
(1) Eligible partnership.--The term ``eligible
partnership'' means a partnership that includes--
(A) the applicable Single State Authority for Substance
Abuse;
(B) the State, local, territorial, or tribal criminal or
juvenile justice authority involved;
(C) a researcher who has experience in evidence-based
studies that measure the effectiveness of treating long-term
substance abusers during the period in which such abusers are
under the supervision of the criminal or juvenile justice
system involved;
(D) community-based organizations that provide drug
treatment, related recovery services, job training and
placement, educational services, housing assistance,
mentoring, or medical services; and
(E) Federal agencies (such as the Drug Enforcement Agency,
the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and
the office of a United States attorney).
(2) Substance abuser.--The term ``substance abuser'' means
an individual who--
(A) is in a prison, jail, or juvenile facility;
(B) has abused illegal drugs or alcohol for a number of
years; and
(C) is scheduled to be released from prison, jail, or a
juvenile facility during the 24-month period beginning on the
date the relevant application is submitted under subsection
(c).
(3) Single state authority for substance abuse.--The term
``Single State Authority for Substance Abuse'' means an
entity designated by the Governor or chief executive officer
of a State as the single State administrative authority
responsible for the planning, development, implementation,
monitoring, regulation, and evaluation of substance abuse
services in that State.
(f) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section $5,000,000 for
each of fiscal years 2009 and 2010.
SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING
COMMISSION.
(a) In General.--The United States Sentencing Commission,
in its discretion, may--
(1) promulgate amendments pursuant to the directives in
this Act in accordance with the procedure set forth in
section 21(a) of the Sentencing Act of 1987 (Public Law 100-
182), as though the authority under that Act had not expired;
and
(2) pursuant to the emergency authority provided in
paragraph (1), make such conforming amendments to the
Sentencing Guidelines as the Commission determines necessary
to achieve consistency with other guideline provisions and
applicable law.
(b) Promulgation.--The Commission shall promulgate any
amendments under subsection (a) promptly so that the
amendments take effect on the same date as the amendments
made by this Act.
SEC. 9. 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. 10. AUTHORIZATION OF APPROPRIATIONS AND REQUIRED REPORT.
(a) Authorization of Appropriations for Department of
Justice.--There is authorized to be appropriated to the
Department of Justice not more than $36,000,000 for each of
the fiscal years 2009 and 2010 for the prosecution of high-
level drug offenses, of which--
(1) $15,000,000 is for salaries and expenses of the Drug
Enforcement Administration;
(2) $15,000,000 is for salaries and expenses for the
Offices of United States Attorneys;
(3) $4,000,000 each year is for salaries and expenses for
the Criminal Division; and
(4) $2,000,000 is for salaries and expenses for the Office
of the Attorney General for the management of such
prosecutions.
(b) Authorization of Appropriations for Department of
Treasury.--There is authorized to be appropriated to the
Department of the Treasury for salaries and expenses of the
Financial Crime Enforcement Network (FINCEN) not more than
$10,000,000 for each of fiscal years 2009 and 2010 in support
of the prosecution of high-level drug offenses.
(c) Authorization of Appropriations for Department of
Homeland Security.--There is authorized to be appropriated
for the Department of Homeland Security not more
[[Page H6202]]
than $10,000,000 for each of fiscal years 2009 and 2010 for
salaries and expenses in support of the prosecution of high-
level drug offenses.
(d) Additional Funds.--Amounts authorized to be
appropriated under this section shall be in addition to
amounts otherwise available for, or in support of, the
prosecution of high-level drug offenses.
(e) Report of Comptroller General.--Not later than 180 days
after the end of each of fiscal years 2009 and 2010, the
Comptroller General shall submit to the Committees on the
Judiciary and the Committees on Appropriations of the Senate
and House of Representatives a report containing information
on the actual uses made of the funds appropriated pursuant to
the authorization of this section.
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act shall apply to any offense
committed on or after 180 days after the date of enactment of
this Act. There shall be no retroactive application of any
portion of this Act.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from California (Mr. Lungren), a senior and active member of the
Judiciary Committee.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I rise in support
of S. 1789, but as someone who helped to write the Drug Control Act of
1986 that we seek to amend, I'd like to make a few observations to set
the record straight.
It is indeed true that the death of basketball star Len Bias served
as an exclamation point concerning the threat posed to our Nation by
the scourge of illegal drug use. The fact that someone who seemed
bigger than life could fall prey to the growing cocaine epidemic
brought home the reality of the danger to every home with a television
set that had tuned into the University of Maryland basketball games.
And that reality was not lost on this body.
The number of Americans addicted to cocaine dramatically increased in
the 1980s thanks in major part to the escalation in crack use. Hospital
emergencies increased by 110 percent in 1986. From 1984 to 1987,
cocaine incidents increased fourfold. The crack epidemic was associated
with a dramatic increase in drug gang-related violence.
A 1988 study by the Bureau of Justice Statistics found that in New
York City, crack use was tied to 32 percent of all homicides and 60
percent of all drug-related homicides.
{time} 1340
I would add that even 5 years after the drug bill was considered on
this floor there was a growing concern over the crack epidemic which
plagued minority neighborhoods. The acclaimed depiction of this scourge
was even portrayed in the movie ``New Jack City.'' Director Mario Van
Peebles, also one of the main characters in the film, observed that
``the immediate problem is that crack is and was a killer in the Black
community today.''
That's what we faced at the time we passed this bill. This is the
context of the crack epidemic and the 1986 drug bill. The concern about
crack cocaine was, and in my view remains, a valid one. According to
the National Institute on Drug Abuse, crack causes faster and shorter
highs than powder, which results in more frequent use. Crack cocaine is
also associated with gang activities and violence, as evidenced by U.S.
Sentencing Commission data. There is, in my view, a basis for disparate
treatment of those who traffic in crack versus powder.
Having said that, the inclusion that there is a basis for treating
crack and powder differently is in no way a justification for the 100-
to-1 sentencing ratio contained in the 1986 drug bill. We initially
came out of committee with a 20-to-1 ratio. By the time we finished on
the floor, it was 100-to-1. We didn't really have an evidentiary basis
for it, but that's what we did, thinking we were doing the right thing
at the time.
Certainly, one of the sad ironies in this entire episode is that a
bill which was characterized by some as a response to the crack
epidemic in African American communities has led to racial sentencing
disparities which simply cannot be ignored in any reasoned discussion
of this issue. When African Americans, low-level crack defendants,
represent 10 times the number of low-level white crack defendants, I
don't think we can simply close our eyes.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. SMITH of Texas. Mr. Speaker, I yield the gentleman an additional
1 minute.
Mr. DANIEL E. LUNGREN of California. I thank the gentleman.
Although I cannot, and could not, support the legislation reported
out of our committee to completely eliminate any disparity in the
treatment of these illicit substances, that is not what we have before
us today on this floor. I must say that from a law enforcement
standpoint, perhaps the most important factor here is the amount of the
substance that is covered. According to narcotics officers I have
spoken with, you want to reach the wholesale and mid-level traffickers
who often trafficked in 1-ounce quantities.
That is why S. 1789 would raise the amount of crack cocaine necessary
to trigger a mandatory 5-year sentence from 5 grams to 28 grams, which
is close to the 1 ounce. This does seem to make some sense. It is a
fair and just treatment of the problem. It serves the interests of law
enforcement in reaching wholesale and mid-level traffickers while
reducing the crack powder ratio to 18-to-1 from the current 100-to-1.
I think this is tough but fair. I would not support going further. I
support this bill very strongly. I believe that this is what justice
should be about. This is a well-crafted bill. It is a good compromise.
It serves the ends of justice and fairness. I hope people will support
it.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 30 seconds to make
a brief comment.
The gentleman from California just mentioned the 1986 law. We are not
blaming anybody for what happened in 1986, but we have had years of
experience and have determined that there is no justification for the
100-to-1 ratio. We know that's what we know now, and so we're not
blaming anybody for what happened in 1986, but we are fixing what we
have learned through years of experience.
I yield 2 minutes to the gentleman from Minnesota (Mr. Ellison).
Mr. ELLISON. Let me thank Chairman Scott, Chairman Conyers, and also
let me thank my colleagues on the other side of the aisle who see the
wisdom of moving forward based on what we know about the disparity in
crack cocaine sentencing now, what we've learned over the years, thank
all of them for yielding to evidence, which I think is so important.
Before I ever came to Congress, Mr. Speaker, I spent the better part
of my life representing people in the courts of our country as a public
defender and representing them in the courts of our country in Federal
and State court, and I saw so many of these cases. I think what
disgusted me the most is the human potential that would just be thrown
away, as I would have to tell a young person who was caught with crack
that if they'd had cocaine they would have a chance at probation, they
would be able to really take advantages of treatment and perhaps
reconstruct their lives. But because they had crack, their lives were
going to be basically over at a pretty young age, thrown away in a cell
to have really no real opportunity, be in prison for 10, 5 years for
what another person would get probation for. And this made it
incredibly difficult to argue that our system of law was fair, that we
believed in justice, that we thought it was right and just to treat
people the same for doing the same thing.
The fact is, the chemical difference between crack and cocaine is the
differences between water and ice. It is the same thing, and you cannot
explain to a people that for doing the same thing that they should get
100-to-1 more severe treatment. It doesn't make sense.
So let me just commend people on both sides of the aisle for
correcting this severely disproportionate and unfair anomaly in our law
enforcement, and I take no blame for anybody. But I will say that there
are thousands of people, literally thousands of people, who may get a
real chance at life because of a mistake in their drug cases, because
of this law.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to my friend and
colleague from Texas (Mr. Paul).
(Mr. PAUL asked and was given permission to revise and extend his
remarks.)
Mr. PAUL. I thank the gentleman for yielding.
[[Page H6203]]
Mr. Speaker, I rise in support of this legislation. It's called the
Fair Sentencing Act. I'd like to rename it, though. I'd like to call it
the Slightly Fairer Resentencing Act, because it really makes an
attempt to correct a very, very serious problem in equal justice in our
systems, and that effort I think we should all applaud. I would have
much preferred H.R. 3245. I was an original cosponsor of that along
with Congressman Scott, but I think this is a typical example of trying
to fix a problem that we invite upon ourselves.
In economics, I adhere to the position that once you want to do some
good in the economy, with all the best motivations, we do things and we
create new problems and we have to go back. If you get two new problems
for every intervention, then you're constantly writing laws.
Well, in social policy, I believe the same thing. It was trying to
improve social policy with crack cocaine. There was no evidence on
this. It was designed to help people, especially the minorities that
were using crack cocaine, and they thought this was terrible, and it
turned out that its law backfired. It actually hurt minorities, didn't
help them. Here we are trying to correct this disparity, and it just,
to me, confirms the fact that government management, whether it is the
economy or social policy, doesn't make a whole lot of sense.
When this country decided it was very dangerous to drink alcohol and
we had to stop it, back in those days, in the teens of the last
century, they decided in order for the government to do this they had
to amend the Constitution. Can you imagine anybody being concerned
today by what we do here and say we have to amend the Constitution? Oh,
no. We amended the Constitution. It was a bomb. It made alcohol much
more dangerous. All the drug dealers sold the alcohol, and the alcohol
was more concentrated and less pure. People died. People woke up and
they repealed it.
This is what's going to have to happen someday. We need to repeal the
war on drugs.
Mr. SMITH of Texas. Mr. Speaker, I have no further requests for time,
and I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 1 minute to the majority
leader of the House of Representatives, the gentleman from Maryland
(Mr. Hoyer).
{time} 1350
Mr. HOYER. Mr. Speaker, I rise in support of this legislation and
thank Mr. Scott for yielding to me.
I also want to thank the former attorney general from California, Dan
Lungren, for working with me on this issue and Jim Sensenbrenner and
others.
Two decades ago, Congress responded to the addictiveness of crack
cocaine, a terrible drug, and the violence it brought in its wake by
establishing harsh mandatory sentences for possessing and dealing it.
In supporting that policy, Congress also created a wide disparity,
however, between crack cocaine and powder cocaine sentences--both
addictive, both illegal.
Possessing an amount of crack equal to the weight of two pennies has
resulted in a mandatory minimum sentence of 5 years. In order to
receive a similar sentence for possessing a chemically similar powder,
cocaine, one would have to be carrying 100 times as much cocaine.
It has long been clear that 100-to-1 disparity has had a racial
dimension as well, helping to fill our prisons with African Americans
disproportionately put behind bars for longer.
The 100-to-1 disparity is counterproductive and unjust. That's not
just my opinion, but the opinion of a bipartisan U.S. Sentencing
Commission, the Judicial Conference of the United States, the National
District Attorneys Association, the National Association of Police
Organizations, the Federal Law Enforcement Officers Association, the
International Union of Police Associations, and dozens of former
Federal judges and prosecutors. They have seen firsthand the damaging
effects of our unequal sentencing guidelines up close, and they
understand the need to change them. That's what this is about.
The Fair Sentencing Act does that. It also strengthens sentences for
those who profit by addicting others to drugs, as it should do.
This bill has overwhelming bipartisan support. Whatever their
opinions on drug policies, members of law enforcement, community
advocates, and Members of Congress overwhelmingly support this bill. In
fact, it passed the Senate unanimously.
In the words of a letter signed by a bipartisan group with sponsors
on the Senate Judiciary--Senators Leahy, Sessions, Feinstein, Hatch,
Specter, Grassley, Durbin, Graham, Cardin, Cornyn and Coburn--a very,
very bipartisan and broad spectrum group of supporters, they said this:
``Congress has debated the need to address the crack powder disparity
for too long. We now have the ability to address this issue on a
bipartisan basis.'' They supported this legislation, which is, again,
why it passed in a bipartisan fashion through the United States Senate.
My colleagues, I urge support of this legislation. I am pleased that
the leadership on both sides of the aisle will be supporting this
legislation. We do so for the same reason that Senators Cornyn, Hatch,
Graham, and Sessions all support their legislation. It's the right
thing to do. It will enhance, not diminish prosecution, and it will
lead to better justice in America while at the same time making sure
that we penalize and hold accountable those who would addict our
children and our fellow citizens.
I urge support of this legislation.
Mr. SMITH of Texas. I yield myself the balance of my time.
Mr. Speaker, more than any other drug, the majority of crack
defendants have prior criminal convictions. Despite claims by some,
this is not an issue of one-time crack users being prosecuted for
possession. This is about offenders who perpetually peddled this
dangerous drug and should pay the price for their actions.
Despite the devastating impact crack cocaine has had on American
communities, this bill reduces the penalties for crack cocaine. Why
would we want to do that? We should not ignore the severity of crack
addiction or ignore the differences between crack and powder cocaine
trafficking. We should worry more about the victims than about the
criminals.
Why would we want to reduce the penalties for crack cocaine
trafficking and invite a return to a time when cocaine ravaged our
communities, especially minority communities?
This bill sends the wrong message to drug dealers and those who
traffic in destroying Americans' lives. It sends the message that
Congress takes drug crimes less seriously than they did. The bill
before us threatens to return America to the days when crack cocaine
corroded the minds and bodies of our children, decimated a generation,
and destroyed communities.
Mr. Speaker, I hope, sincerely, that those who support this
legislation are prepared to take responsibility if cocaine trafficking
increases, if our neighborhoods and communities once again become
riddled with violence, and the lives of Americans are unnecessarily
destroyed.
I hope that doesn't happen, but at least today we have gone on record
as saying that there was a warning, and I can only hope that at some
point in the future it will be heeded and responded to.
Mr. Speaker, I yield back the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, this bill does not reduce the
disparity from 100-to-1 to 1-to-1. It does not eliminate the mandatory
minimums, but it is a step in the right direction and, therefore, I
urge my colleagues to support S. 1789.
Mr. PAUL. Mr. Speaker, I rise in reluctant support for S. 1789, the
Fair Sentencing Act. My support is reluctant because S. 1789 is an
uncomfortable mix of some provisions that reduce the harms of the
federal war on drugs and other provisions that increase the harms of
that disastrous and unconstitutional war. I am supporting this
legislation because I am optimistic the legislation's overall effect
will be positive.
Congress should be looking critically at how we can extricate America
from the four decades of destruction that has ensued since President
Richard Nixon announced the federal war on drugs in 1972. As a medical
doctor with over 30 years' experience, I certainly recognize the
dangers that can arise from drug abuse. However, experience shows that
the federal drug war creates many additional dangers, while failing to
reduce the problems associated with drug abuse. Like 14 years of
federal alcohol prohibition in the 1920s and '30s, America's federal
drug war has failed to
[[Page H6204]]
ameliorate the problems associated with drug use, while fostering
violence and disrespect for individual rights.
While imperfect, I am optimistic that the Senate bill being
considered today will reduce the harms of the federal drug war. I also
hope consideration of this legislation will enliven interest in ending
the federal war on drugs.
It is unfortunate that the House of Representatives is today
considering this compromise legislation from the Senate instead of
Representative Bobby Scott's H.R. 3245, the Fairness in Cocaine
Sentencing Act. I am an original cosponsor of Representative Scott's
bill, which passed the House of Representatives Committee on the
Judiciary on July 29, 2009--one year ago tomorrow. Representative
Scott's legislation is a short and simple bill that repeals a handful
of clauses, sentences, and subparagraphs of federal drug laws to
eliminate the 100 to one drug weight basis for sentencing disparity for
crack cocaine violations in comparison to powder cocaine violations.
I will vote for the Senate legislation today because it rolls back
some of the enhanced mandatory minimum sentences for crack cocaine that
the federal government created in 1986. These enhanced mandatory
minimum sentences have caused people convicted for small amounts of
crack cocaine to serve much longer sentences in prison than people
convicted for the same amount of powder cocaine.
While the Senate legislation reduces the drug weight basis for
mandatory minimum sentencing disparity between crack cocaine and powder
cocaine convictions for many individuals to only 18 to one compared to
the total elimination of the disparity in Representative Scott's bill,
the Senate bill does make a step in the right direction. The Senate
bill eliminates entirely the mandatory minimum sentence for simple
possession of crack cocaine and reduces significantly the mandatory
minimum sentence for many people convicted of crack offenses by raising
the number of grams of crack cocaine a person must possess for each
mandatory minimum sentence level to apply. In addition, the Senate bill
allows courts to show compassion for individuals with compelling cases
for leniency by reducing sentences for some people convicted of
controlled substances violations who a court determines meet
requirements including having minimum knowledge of the illegal
enterprise, receiving no monetary compensation from the illegal
transaction, and being motivated by threats, fear, or an intimate or
family relationship.
Unfortunately, while the Senate bill reduces some of the most extreme
and unjust mandatory minimum sentences in the federal drug war, it also
contains expansions of the federal drug war that I fear may yield
results destructive to individual liberty and public safety. In
particular, the Senate bill significantly increases maximum allowed
monetary penalties for violations of federal restrictions on controlled
substances and increases sentences for people convicted of controlled
substances violations whose circumstances include certain aggravating
factors.
Some people will argue that the increased penalties in the Senate
legislation are desirable because they target people who are high up in
the illegal drug trade or who took particularly disturbing actions,
such as involving a minor in drug trafficking. But, the history of the
federal drug war has shown that ramping up penalties always results in
increasing rather than decreasing the harms arising from the federal
drug war. Such enhanced penalties increase the risks of the drug trade
thus causing illegal drug operations to be more ruthless and violent in
their tactics. Enhanced penalties also can result in even more inflated
prices for illegal drugs, leading to more thefts by individuals seeking
funds to support their drug use. High monetary fines for drug
trafficking also tend to provide police and prosecutors with a perverse
incentive to focus on nonviolent drug crimes instead of violent crimes.
Each successive ramping up of the federal war on drugs has made it
more evident that this war is incompatible with constitutional
government, individual liberty, and prosperity. It is time for Congress
to reverse course. I am optimistic that S. 1789--even with its faults--
may signal that Congress is ready to begin reversing course. It is
imperative that the House of Representatives pursue a dialogue on how
we can end the federal war on drugs--a war that has increasingly become
a war on the American people and our Constitution.
Mr. SCOTT of Virginia. I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Virginia (Mr. Scott) that the House suspend the rules
and pass the bill, S. 1789.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________