[Congressional Record (Bound Edition), Volume 156 (2010), Part 3]
[Senate]
[Pages 3658-3661]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      FAIR SENTENCING ACT OF 2009

  Mr. DURBIN. Mr. President, prior to making the next unanimous consent 
request, I wish to make a statement on the Record relative to the bill 
that I will be asking for unanimous consent on. It is S. 1789.
  This bill is known as the Fair Sentencing Act. It is bipartisan 
legislation which has cleared both sides. At the conclusion of my 
remarks, I will, of course, ask for unanimous consent, but will ask 
permission, if possible, that the statement of Senator Sessions be 
printed in the Record. I don't know if he will be able to make it this 
evening, but if not, we will do our best to accommodate him.
  The Fair Sentencing Act would reduce the sentencing disparity between 
crack and powder cocaine and increase penalties for serious drug 
offenders. Crack and powder cocaine have a devastating effect on 
families in America, and tough anti-cocaine legislation is definitely 
needed, but the law must also be fair. Current law is based on an 
unjustified distinction between crack and powder cocaine. Simply 
possessing five grams of crack--the equivalent of five tiny packets of 
sugar that you find in restaurants--carries the same sentence as 
selling 500 grams of powder cocaine. That is 500 packets of sugar. Five 
packets for crack; 500 packets for powder, the same sentence. This is 
known as the 100-to-1 disparity.
  I can remember as a Member of the House of Representatives when we 
enacted this legislation. Crack cocaine had just appeared on the scene 
and it scared us, because it was cheap and it was addictive. We thought 
it was more dangerous than many narcotics and left the legacy of crack 
babies and broken lives. In our response to this terrible new narcotic 
at the time, we enacted this sentencing disparity, saying that 5 five 
grams of crack cocaine would lead to the same sentence as 500 grams of 
powder cocaine. What it has meant is that, unfortunately, in the years 
that followed, we have seen people sent to prison for extended periods 
of time for possessing--merely possessing--the smallest amount of 
crack.
  Disproportionately, African Americans who are addicted use crack 
cocaine. The use of powder cocaine is spread across the population 
among Whites, Hispanics, and others. So the net result of this was that 
the heavy sentencing we enacted years ago took its toll primarily in 
the African-American community. It resulted in the incarceration of 
thousands of people because of this heavy sentencing disparity and a 
belief in the African-American community that it was fundamentally 
unfair. It was the same cocaine, though in a different form, and they 
were being singled out for much more severe and heavy sentences. This 
debate went on and on and on. African Americans make up about 30 
percent of crack users in America, but they make up more than 80 
percent of those who have been convicted of Federal crack offenses.
  Law enforcement experts say that the crack-powder disparity 
undermines

[[Page 3659]]

trust in the criminal justice system, especially in the African-
American community. In a hearing I held last year, Asa Hutchinson, a 
former Member of Congress who was also head of the Drug Enforcement 
Administration during the Bush administration, testified and he said:

       Under the current disparity, the credibility of our entire 
     drug enforcement system is weakened.

  The bipartisan U.S. Sentencing Commission and the Judicial Conference 
of the United States support reducing this disparity. According to the 
Sentencing Commission, this:

     would better reduce the gap in sentencing between blacks and 
     whites than any other single policy change, and it would 
     dramatically improve the fairness of the Federal sentencing 
     system.

  That comes from the Sentencing Commission.
  The Fair Sentencing Act, which I will call up for unanimous consent 
momentarily, would reduce the current 100-to-1 disparity to basically 
18 to 1. The Fair Sentencing Act would also eliminate the 5-year 
mandatory minimum sentence for simple possession of crack cocaine.
  Incidentally, this is the only mandatory minimum for simple 
possession of a drug by a first-time offender. For this one form of 
narcotics, persons who were found in simple possession of crack cocaine 
literally faced years in prison for that possession without any 
evidence that they were selling it or involved in any other way.
  There is a bipartisan consensus that current cocaine sentencing laws 
are unjust. Now Democrats and Republicans have come together to address 
the issue in a bipartisan way. Last week, the Senate Judiciary 
Committee reported the Fair Sentencing Act by a unanimous 19-to-0 vote. 
The bill is cosponsored by 16 of the 19 members of the Senate Judiciary 
Committee. This is the first time the Senate Judiciary Committee has 
ever reported a bill to reduce the crack-powder disparity, and if this 
bill is enacted into law, it will be the first time since 1970--40 
years ago--that Congress has repealed a mandatory minimum sentence.
  Here is what Attorney General Eric Holder said last week in response:

       The bill voted unanimously out of the Senate Judiciary 
     Committee today makes progress toward achieving a more just 
     sentencing policy while maintaining the necessary law 
     enforcement tools to appropriately punish violent and 
     dangerous drug traffickers. I look forward to the Senate and 
     the House approving this legislation quickly so that it can 
     be signed into law.

  The Fair Sentencing Act is supported by law enforcement groups, 
including the National District Attorneys Association, representing 
40,000 State and local prosecutors; the National Association of Police 
Organizations, representing 240,000 law enforcement officers; and the 
International Union of Police Associations, representing more than 
100,000 law enforcement officials.
  I wish to thank my colleagues on the Senate Judiciary Committee for 
supporting the Fair Sentencing Act. I especially wish to thank the 
following Members who have done an extraordinary job over the last year 
during which we have worked to reach this bipartisan agreement. First, 
the chairman of the Senate Judiciary Committee Pat Leahy. He is a great 
leader and a patient man. This bill has been sitting on a calendar for 
weeks and he keeps coming to me and saying: Durbin, when are we going 
to have this ready?
  I said: Mr. Chairman, we are working on it.
  He had the patience of Job.
  I especially wish to thank my friend from Alabama, the Judiciary 
Committee ranking member, Jeff Sessions. If asked if there are two 
politicians on the floor of the Senate who are dramatically different, 
you couldn't find two any more different than Dick Durbin and Jeff 
Sessions. We seldom agree on things, but we came together on this, and 
we made mutual concessions to come up with a good bipartisan bill. 
Jeff, I think, went the extra mile to find some agreement here. He held 
to his principles, but we worked it out.
  In the process of reaching that agreement, I wish to also thank some 
Republican Members who were invaluable. Lindsey Graham was one of the 
first to come up to me and say, I want to work with you on this. There 
has to be a way we can work this out to the satisfaction of law 
enforcement and to reach the standards of justice. I thank Senator 
Lindsey Graham, the Republican from South Carolina, for all the work he 
put into it.
  Tom Coburn of Oklahoma is another Senator I disagree with so many 
times politically. He went the extra mile on this. I know it meant a 
lot to him and he was very helpful.
  Finally, Orrin Hatch from Utah. Senator Hatch from the beginning 
said, Don't quit, stick with it, we can reach an agreement. He was an 
inspiration to us as we brought this to a conclusion.
  We have talked about the need to address the crack-powder disparity 
for too long. Every day that passes without taking action to solve this 
problem is another day that people are being sentenced under a law that 
virtually everyone agrees is unjust. I wish this bill went further. My 
initial bill established a 1-to-1 ratio, but this is a good bipartisan 
compromise. If this bill is enacted into law, it will immediately 
ensure that every year, thousands of people are treated more fairly in 
our criminal justice system. I hope my colleagues, when they hear about 
our efforts on this, will join in supporting our efforts to deal with 
this disparity.
  I ask unanimous consent to have printed in the Record a statement by 
Wade Henderson, president of The Leadership Conference, in support of 
the bill that is currently being considered by the Senate.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Wade Henderson, president of The Leadership Conference on 
     Civil and Human Rights, issued the following statement 
     regarding the Senate Judiciary Committee's vote on March 11 
     to amend and pass The Fair Sentencing Act (S. 1789).
       For nearly two decades, The Leadership Conference has 
     fought for the complete elimination of the unjustified and 
     racially discriminatory disparity in sentencing between the 
     crack and powder forms of cocaine. This disparity subverts 
     justice, undermines confidence in our criminal justice 
     system, and wreaks havoc on the African-American community. 
     We strongly supported Senator Dick Durbin's bill, S. 1789, 
     which would have completely eliminated the disparity.
       While we are disappointed that the goal of complete 
     elimination has not yet been accomplished and that 
     discrimination will remain, The Leadership Conference 
     considers the Senate Judiciary Committee's unanimous passage 
     of the amended version of S. 1789, which reduces the 
     disparity from a ratio of 100-to-1 to 18-to-1, to be a step 
     forward.
       This legislation represents progress but not the end of the 
     fight. As Dr. King said, An unjust law is a code that is out 
     of harmony with the moral law. We are committed to redoubling 
     our efforts to obtain complete elimination of this sentencing 
     disparity--the only fair and just solution.
       We applaud Senator Durbin for his persistence in seeking 
     real reform, along with Chairman Patrick Leahy and Senator 
     Jeff Sessions for their steadfast commitment to addressing 
     this issue. We appreciate the contributions of Senator 
     Lindsey Graham toward finding a resolution. We want to note 
     Senator Ben Cardin's continued commitment to the complete 
     elimination of the disparity and Senator Russ Feingold's 
     courageous vote against the amendment. We also want to 
     recognize the leadership of Representative Bobby Scott and 
     the Congressional Black Caucus, who have served as the 
     conscience of Congress on this issue.

  Mr. DURBIN. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 316, S. 1789.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1789) to restore fairness to Federal cocaine 
     sentencing.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fair Sentencing Act of 
     2010''.

     SEC. 2. COCAINE SENTENCING DISPARITY REDUCTION.

       (a) CSA.--Section 401(b)(1) of the Controlled Substances 
     Act (21 U.S.C. 841(b)(1)) is amended--

[[Page 3660]]

       (1) in subparagraph (A)(iii), by striking ``50 grams'' and 
     inserting ``280 grams''; and
       (2) in subparagraph (B)(iii), by striking ``5 grams'' and 
     inserting ``28 grams''.
       (b) Import and Export Act.--Section 1010(b) of the 
     Controlled Substances Import and Export Act (21 U.S.C. 
     960(b)) is amended--
       (1) in paragraph (1)(C), by striking ``50 grams'' and 
     inserting ``280 grams''; and
       (2) in paragraph (2)(C), by striking ``5 grams'' and 
     inserting ``28 grams''.

     SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE FOR SIMPLE 
                   POSSESSION.

       Section 404(a) of the Controlled Substances Act (21 U.S.C. 
     844(a)) is amended by striking the sentence beginning 
     ``Notwithstanding the preceding sentence,''.

     SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG TRAFFICKERS.

       (a) Increased Penalties for Manufacture, Distribution, 
     Dispensation, or Possession With Intent To Manufacture, 
     Distribute, or Dispense.--Section 401(b)(1) of the Controlled 
     Substances Act (21 U.S.C. 841(b)) is amended--
       (1) in subparagraph (A), by striking ``$4,000,000'', 
     ``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and 
     inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'', 
     and ``$75,000,000'', respectively; and
       (2) in subparagraph (B), by striking ``$2,000,000'', 
     ``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and 
     inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', 
     and ``$50,000,000'', respectively.
       (b) Increased Penalties for Importation and Exportation.--
     Section 1010(b) of the Controlled Substances Import and 
     Export Act (21 U.S.C. 960(b)) is amended--
       (1) in paragraph (1), by striking ``$4,000,000'', 
     ``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and 
     inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'', 
     and ``$75,000,000'', respectively; and
       (2) in paragraph (2), by striking ``$2,000,000'', 
     ``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and 
     inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', 
     and ``$50,000,000'', respectively.

     SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING THE COURSE 
                   OF A DRUG TRAFFICKING OFFENSE.

       Pursuant to its authority under section 994 of title 28, 
     United States Code, the United States Sentencing Commission 
     shall review and amend the Federal sentencing guidelines to 
     ensure that the guidelines provide an additional penalty 
     increase of at least 2 offense levels if the defendant used 
     violence, made a credible threat to use violence, or directed 
     the use of violence during a drug trafficking offense.

     SEC. 6. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN 
                   AGGRAVATING FACTORS.

       Pursuant to its authority under section 994 of title 28, 
     United States Code, the United States Sentencing Commission 
     shall review and amend the Federal sentencing guidelines to 
     ensure an additional increase of at least 2 offense levels 
     if--
       (1) the defendant bribed, or attempted to bribe, a Federal, 
     State, or local law enforcement official in connection with a 
     drug trafficking offense;
       (2) the defendant maintained an establishment for the 
     manufacture or distribution of a controlled substance, as 
     generally described in section 416 of the Controlled 
     Substances Act (21 U.S.C. 856); or
       (3)(A) the defendant is an organizer, leader, manager, or 
     supervisor of drug trafficking activity subject to an 
     aggravating role enhancement under the guidelines; and
       (B) the offense involved 1 or more of the following super-
     aggravating factors:
       (i) The defendant--
       (I) used another person to purchase, sell, transport, or 
     store controlled substances;
       (II) used impulse, fear, friendship, affection, or some 
     combination thereof to involve such person in the offense; 
     and
       (III) such person had a minimum knowledge of the illegal 
     enterprise and was to receive little or no compensation from 
     the illegal transaction.
       (ii) The defendant--
       (I) knowingly distributed a controlled substance to a 
     person under the age of 18 years, a person over the age of 64 
     years, or a pregnant individual;
       (II) knowingly involved a person under the age of 18 years, 
     a person over the age of 64 years, or a pregnant individual 
     in drug trafficking;
       (III) knowingly distributed a controlled substance to an 
     individual who was unusually vulnerable due to physical or 
     mental condition, or who was particularly susceptible to 
     criminal conduct; or
       (IV) knowingly involved an individual who was unusually 
     vulnerable due to physical or mental condition, or who was 
     particularly susceptible to criminal conduct, in the offense.
       (iii) The defendant was involved in the importation into 
     the United States of a controlled substance.
       (iv) The defendant engaged in witness intimidation, 
     tampered with or destroyed evidence, or otherwise obstructed 
     justice in connection with the investigation or prosecution 
     of the offense.
       (v) The defendant committed the drug trafficking offense as 
     part of a pattern of criminal conduct engaged in as a 
     livelihood.

     SEC. 7. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN 
                   MITIGATING FACTORS.

       Pursuant to its authority under section 994 of title 28, 
     United States Code, the United States Sentencing Commission 
     shall review and amend the Federal sentencing guidelines and 
     policy statements to ensure that--
       (1) if the defendant is subject to a minimal role 
     adjustment under the guidelines, the base offense level for 
     the defendant based solely on drug quantity shall not exceed 
     level 32; and
       (2) there is an additional reduction of 2 offense levels if 
     the defendant--
       (A) otherwise qualifies for a minimal role adjustment under 
     the guidelines and had a minimum knowledge of the illegal 
     enterprise;
       (B) was to receive no monetary compensation from the 
     illegal transaction; and
       (C) was motivated by an intimate or familial relationship 
     or by threats or fear when the defendant was otherwise 
     unlikely to commit such an offense.

     SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING 
                   COMMISSION.

       The United States Sentencing Commission shall--
       (1) promulgate the guidelines, policy statements, or 
     amendments provided for in this Act as soon as practicable, 
     and in any event not later than 90 days after the date of 
     enactment of this Act, in accordance with the procedure set 
     forth in section 21(a) of the Sentencing Act of 1987 (28 
     U.S.C. 994 note), as though the authority under that Act had 
     not expired; and
       (2) pursuant to the emergency authority provided under 
     paragraph (1), make such conforming amendments to the Federal 
     sentencing guidelines as the Commission determines necessary 
     to achieve consistency with other guideline provisions and 
     applicable law.

     SEC. 9. REPORT ON EFFECTIVENESS OF DRUG COURTS.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall submit to Congress a report analyzing the 
     effectiveness of drug court programs receiving funds under 
     the drug court grant program under part EE of title I of the 
     Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
     3797-u et seq.).
       (b) Contents.--The report submitted under subsection (a) 
     shall--
       (1) assess the efforts of the Department of Justice to 
     collect data on the performance of federally funded drug 
     courts;
       (2) address the effect of drug courts on recidivism and 
     substance abuse rates;
       (3) address any cost benefits resulting from the use of 
     drug courts as alternatives to incarceration;
       (4) assess the response of the Department of Justice to 
     previous recommendations made by the Comptroller General 
     regarding drug court programs; and
       (5) make recommendations concerning the performance, 
     impact, and cost-effectiveness of federally funded drug court 
     programs.

     SEC. 10. UNITED STATES SENTENCING COMMISSION REPORT ON IMPACT 
                   OF CHANGES TO FEDERAL COCAINE SENTENCING LAW.

       Not later than 5 years after the date of enactment of this 
     Act, the United States Sentencing Commission, pursuant to the 
     authority under sections 994 and 995 of title 28, United 
     States Code, and the responsibility of the United States 
     Sentencing Commission to advise Congress on sentencing policy 
     under section 995(a)(20) of title 28, United States Code, 
     shall study and submit to Congress a report regarding the 
     impact of the changes in Federal sentencing law under this 
     Act and the amendments made by this Act.

  Mr. LEAHY. Mr. President, today, I join Senators from both sides of 
the aisle to pass the historic and bipartisan Fair Sentencing Act.
  The racial imbalance that has resulted from the cocaine sentencing 
disparity disparages the Constitution's promise of equal treatment for 
all Americans. Although this bill is not perfect, its passage marks a 
significant step forward in making our drug laws fairer and more 
rational. Despite my belief that parity was the better policy, I have 
joined with Senator Durbin and support the progress represented by his 
compromise with Senator Sessions. It reduces the disparities that leave 
some in jail for years while their more privileged counterparts go home 
after relatively brief sentences. Today, that compromise means we are 
one step closer to fixing this decades-old injustice. I commend 
Senators Durbin, Sessions, Graham, Coburn, and Hatch for negotiating 
the compromise that allowed this important piece of legislation to pass 
the Senate Judiciary Committee by a unanimous vote. As chairman, I was 
able to report on behalf of the Senate Judiciary Committee the first 
measure we have ever been able to approve that begins to undo the 
unjust sentencing disparity.
  For more than 20 years, our Nation has used a Federal cocaine 
sentencing policy that treats ``crack'' offenders 100 times more 
harshly than other cocaine offenders, without a legitimate basis for 
the difference. We know that there is little or no pharmacological 
distinction between crack and powder cocaine, yet the resulting 
punishments

[[Page 3661]]

for these offenses is radically different and unjust. This policy is 
wrong and unfair, and it has needlessly swelled our prisons, wasting 
precious Federal resources.
  These disproportionate punishments have had a disparate impact on 
minority communities. This is unjust and runs contrary to our 
fundamental principles of equal justice under law. According to the 
latest statistics of the independent and nonpartisan United States 
Sentencing Commission, African Americans continue to make up the large 
majority of Federal crack cocaine convictions, accounting for 80 
percent of all Federal crack cocaine offenses, while they represent a 
much smaller fraction of those who use the drug. In a letter to our 
committee, John Payton, the president of the NAACP Legal Defense Fund, 
called this disparity ``one of the most notorious symbols of racial 
discrimination in the modern criminal justice system.''
  These disparate penalties, which Congress created in the mid-1980s, 
have failed to address basic concerns. The primary goal underlying the 
crack sentence structure was to punish the major traffickers and drug 
kingpins who were bringing crack into our neighborhoods. But the law 
has not been used to go after the most serious offenders. In fact, just 
the opposite has happened. The Sentencing Commission has reported for 
many years that more than half of Federal crack cocaine offenders are 
low-level street dealers and users, not the major traffickers Congress 
intended to target.
  The Fair Sentencing Act of 2009 returns the focus of Federal cocaine 
sentencing policy to drug kingpins, rather than street level dealers, 
and eliminates the mandatory minimum sentence for possession of crack 
cocaine. The 5-year mandatory minimum sentence penalty for simple 
possession of crack is unique under Federal law. There is no other 
mandatory minimum for mere simple possession of a commonly abused drug.
  This bill does not legalize drugs, nor does it eliminate harsh 
sentences. In fact, this bill toughens some penalties. It increase 
fines for major drug traffickers and provides sentencing enhancements 
for acts of violence committed during the course of a drug trafficking 
offense. But this bill also helps to ensure that our system will no 
longer affect many minority and urban communities more harshly than 
offenders who use drugs in the suburbs and corporate offices. That 
inequality has reduced trust in law enforcement and cooperation with 
police, which makes us all less safe.
  American justice is about fairness for each individual. To have faith 
in our system, Americans must have confidence that the laws of this 
country, including our drug laws, are fair and administered fairly. We 
must be smarter in our Federal drug policy. Law enforcement has been 
and continues to be a central part of our efforts against illegal 
drugs, but we must also find meaningful, community-based solutions 
which enable people to feel they are being treated fairly. I look 
forward to working with Chief Kerlikowske, the director of the 
President's Office of National Drug Control Policy, to develop and 
deploy such a strategy.
  Since 1995, the United States Sentencing Commission has issued report 
after report calling on Congress to address this unfair sentencing 
disparity. We would not be making the progress we are today without the 
leadership of the United States Sentencing Commission. I thank them and 
their chairman, Judge William Sessions.
  I thank the U.S. Department of Justice for the testimony of Assistant 
Attorney General Lanny Breuer at our hearing on this matter last year. 
Attorney General Eric Holder also reminded us that ``the stakes are 
simply too high to let reform in this area wait any longer.'' I agree. 
It is time for the Senate and House to act.
  After more than 20 years, the Senate has finally acted on legislation 
to correct the crack-powder disparity and the harm to public confidence 
in our justice system it created. Although this bill is not perfect and 
it is not the bill we introduced in order to correct these 
inequalities, I believe the Fair Sentencing Act moves us one step 
closer to reaching the important goal of equal justice for all. I urge 
the House to act quickly so that the President can sign this historic 
legislation into law.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the committee 
substitute amendment be agreed to; the bill, as amended, be read a 
third time and passed; the motions to reconsider be laid upon the 
table, with no intervening action or debate, and any statements related 
to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee amendment in the nature of a substitute was agreed to.
  The bill (S. 1789), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.
  Mr. DURBIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________