[Congressional Record (Bound Edition), Volume 156 (2010), Part 10]
[House]
[Pages 14388-14398]
[From the U.S. 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

[[Page 14389]]

       (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.

  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

[[Page 14390]]

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 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

[[Page 14391]]

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. 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.
  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

[[Page 14392]]

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.
       (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

[[Page 14393]]

     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.
       (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--

[[Page 14394]]

       (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 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

[[Page 14395]]

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. I thank the gentleman for yielding.
  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

[[Page 14396]]

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 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,

[[Page 14397]]

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. JOHNSON of Georgia. Mr. Speaker, I rise today in support of S. 
1789, the Fair Sentencing Act of 2010. For too long, crack cocaine 
users, predominantly minorities, have been subject to excessive 
penalties when compared to users of powder cocaine even though both 
drugs are chemically identical. While this bill does not go far enough 
towards righting this injustice, it is a tremendous step in the right 
direction, and I commend Senator Durbin and the rest of the Senate for 
passing this long overdue piece of legislation and urge my colleagues 
to support this bill.
  Mr. Speaker, for too long users of crack cocaine were sentenced to 
prison terms that were much longer than prison terms for users of 
cocaine, a chemically identical drug. We all know why this is the case. 
In the 1980's, the United States was in the midst of a crack cocaine 
epidemic. While cocaine was often considered a harmless, even 
glamorous, ``recreational'' drug of privilege, crack cocaine was 
considered a more harmful drug and was associated with crime and 
destitution. The reality is that crack cocaine, though chemically 
identical to cocaine, is less pure and therefore sells for less on the 
street. As a result, this drug rapidly spread across already 
impoverished and crime-ridden areas of the country, in many cases 
making a bad situation worse. As we all know, low income Americans are 
disproportionately minority. Crack cocaine quickly became associated 
with minorities, particularly African Americans. It would be more 
accurate, however, to associate crack cocaine use with poverty than 
with African Americans. It is important to let the American people know 
that, at the height of the crack cocaine epidemic in this country, a 
1982 the National Survey on Drug Abuse found that 22 million Americans 
had used cocaine at one time or another. I say this to make it clear 
that cocaine was as much of an epidemic as crack cocaine during the 
1980s. The only difference between crack and cocaine is the user.
  In response to the crack cocaine epidemic, Congress passed the Anti-
Drug Abuse Act of 1986 in a reactionary effort to try and put a stop to 
the use of crack cocaine. The law was a part of the so called ``war on 
drugs,'' a popular political catch phrase at the time. This ``war'' was 
launched by stressing the serious social harms of violent crime, theft, 
social exclusion; with which crack cocaine use was associated.
  Current law provides that a person convicted of crack cocaine 
possession receives the same mandatory prison term as someone who 
possesses 100 times the same amount of powder cocaine and the law has 
mandatory minimums for simple possession. Mr. Speaker, let me repeat 
that. The Anti-Drug Abuse Act of 1986 sets the penalty for possession 
of crack cocaine at 100 times the penalty for a chemically identical 
drug, cocaine and sets mandatory minimum sentences for crack cocaine 
users while setting a mandatory minimum sentence for cocaine users. As 
a result of this law, wealthy users of cocaine have received more 
lenient penalties than poor minority users of crack, a chemically 
identical drug. According to U.S. government statistics, 82 percent of 
Federal crack cocaine offenders are African American and only 9 percent 
are white. African-Americans and Latinos were incarcerated at a higher 
rate because of their drug use preference. In this country, where 
everyone is born equal, it is absolutely outrageous that the law could 
be so slanted. It simply makes no sense. As a former Magistrate Judge 
and defense attorney, I firmly believe that there should be no 
difference in the ratio of sentencing for crack cocaine and powder 
cocaine possession.
  Over the years, there have been numerous efforts to lower this ratio 
to a more reasonable difference in sentencing for crack cocaine and 
powder cocaine. In 2007, The United States Sentencing Commission voted 
to recommended that this disparity be rectified and existing sentences 
reduced. Also in 2007, The Supreme Court ruled in Kimbrough v. United 
States that the guidelines for cocaine are advisory only, and that a 
judge may consider the disparity between the guidelines' treatment of 
crack and powder cocaine offenses when sentencing a defendant. Finally, 
today, the United States House of Representatives will consider and 
hopefully pass a bill that will lower the ratio of sentencing from 100 
to 1, to a new ratio of 18 to 1. Mr. Speaker, I support this bill but 
18 to 1 is still unnecessary and discriminatory. An 18 to 1 ratio still 
preserves and institutional disparity between drug sentences of wealthy 
cocaine users and predominantly poor and African American crack cocaine 
users.
  I support the direction that this bill takes the country however I am 
disappointed that, after all these years, an institutional disparity 
will be preserved. I firmly believe that there should be no disparity 
in the ratio of sentencing between users of crack cocaine and powder 
cocaine. The ratio should be one to one. This view is shared by both 
Republicans and Democrats alike. Former D.C. prosecutor, later D.C. 
Superior Court judge, and present D.C. Federal judge, Judge Reggie B. 
Walton, a Republican nominated by former President George W. Bush, 
supports an equalization of the sentencing disparity. Even President 
Obama stated in 2008 that the sentencing disparity ``has 
disproportionately filled our prisons with young black and Latino drug 
users.'' He cited figures that African Americans serve almost as much 
time for drug offenses, at 58.7 months, as whites do for violent 
offenses, at 61.7 months. Finally, in early 2009, Attorney General 
Holder made it clear where the Administration stands when he said, 
``One thing is very clear. We must review our Federal cocaine 
sentencing policy. This administration firmly believes that the 
disparity in crack and powdered cocaine sentencing is unwarranted. It 
must be eliminated.''
  There is absolutely no justification for this racial disparity in 
federal cocaine sentencing policy. The playing field must be leveled to 
bring total equality for all races in sentencing

[[Page 14398]]

for drug use for all variations of the same drug.
  I urge my colleagues to take an enormous step in the right direction 
by supporting this bill to greatly improve this outdated and 
discriminatory law. I urge my colleagues to support this bill.
  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.

                          ____________________