[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Pages 10190-10191]
[From the U.S. Government Publishing Office, www.gpo.gov]




                FAIR SENTENCING ACT GUIDELINE AMENDMENT

  Mr. DURBIN. Mr. President, the bipartisan United States Sentencing 
Commission was created by Congress to establish guidelines that are 
used by Federal judges when they sentence criminal defendants. 
Tomorrow, the Sentencing Commission will take an important vote. The 
Commission is considering whether to apply retroactively the sentencing 
guideline amendment implementing the Fair Sentencing Act of 2010. As 
the lead sponsor of the Fair Sentencing Act, I urge the Commission to 
apply this amendment retroactively.
  Just last year, Democrats and Republicans joined together to pass the 
Fair Sentencing Act, bipartisan legislation that reduced the disparity 
between crack and powder cocaine sentencing.
  For more than 20 years, we had a 100-to-1 crack-powder sentencing 
disparity. It took 100 times more powder cocaine than crack cocaine to 
trigger the same harsh mandatory minimum sentences. Simply possessing 5 
grams of crack carried the same penalty as selling 500 grams of powder.
  This disparity was one of the most significant causes of unequal 
incarceration rates between African Americans and Caucasians. The 
following statistic is chilling: In this country, African Americans are 
incarcerated at approximately six times the rate of Caucasians.
  The Fair Sentencing Act dramatically reduced the 100-to-1 disparity. 
Last November, the Sentencing Commission issued amended sentencing 
guidelines that put into effect the Fair Sentencing Act's reduced crack 
sentences. These guidelines will be used by Federal judges across the 
country in every drug sentencing.
  The Commission is now deciding whether to apply these more equitable 
guidelines retroactively to those who have already been sentenced and 
are in prison. I sent a letter, joined by Judiciary Committee Chairman 
Patrick Leahy, and Senators Franken and Coons, urging the Commission to 
vote for retroactivity.
  Let's be clear about the bottom line: If the Commission does not make 
its amendment retroactive, thousands of people will continue to serve 
prison sentences that Congress has determined are unfair and 
disproportionately punitive to African Americans. Thousands of 
individuals sentenced before November of last year would remain subject 
to our old, racially disparate sentencing scheme. Yet those who 
happened to be sentenced on or after November 1 could receive 
significantly reduced prison terms--even if they engaged in exactly the 
same conduct.
  This is inconsistent with the goals of the Fair Sentencing Act--
reducing disparities in drug sentencing, increasing trust in the 
justice system, and focusing limited resources on serious offenders. In 
effect, it would say: ``The U.S. government is OK with you continuing 
to serve a sentence we've acknowledged is unfair--and most unfair to 
those with your color of skin.''
  Now, opponents of retroactivity have made all sorts of arguments in 
an effort to muddy the water and push their own conservative sentencing 
agenda. They have suggested that because the Fair Sentencing Act did 
not explicitly address retroactivity, the sentencing guidelines 
shouldn't be retroactive. This is an obvious attempt to confuse apples 
and oranges.
  To be clear: We are not talking about whether the statute itself--the 
Fair Sentencing Act--should be applied retroactively. That is a 
different question for a different day--and one that affects many more 
issues and many more inmates. We are talking about the Sentencing 
Commission exercising its own independent, expert authority to make its 
own guideline amendments retroactive.
  Opponents of retroactivity also claim that the Sentencing Commission 
is overstepping its bounds by considering retroactivity. But this is 
the standard administrative process, and one that Congress designed to 
be left to the Sentencing Commission. The Commission has routinely 
applied its amendments retroactively--many, many times before. And it 
has voted for retroactivity virtually every time it has amended the 
guidelines to reduce drug sentences. In fact, Congress expressly gave 
the Commission the authority to make amendments to the sentencing 
guidelines apply retroactively.
  Retroactivity makes practical and economic sense. Our Federal prison 
system is 37 percent over capacity. Inmates are being double and even 
triple bunked. Applying the Fair Sentencing Act guideline amendment 
retroactively could reduce prison overcrowding dramatically and result 
in up to $1 billion in savings for taxpayers. Approximately 12,000 
individuals--who are prescreened by judges--would be eligible for an 
average sentence reduction of 37 months. The average cost to house a 
Federal prisoner is $28,284 per year. Taxpayer savings would be about 
$87,000 for each inmate.
  History also tells us retroactivity makes sense. In 2007, the 
Commission made retroactive a similar amendment to reduce crack 
sentences. Thousands more defendants were eligible then for reductions 
than would be eligible now. Yet motions for reduced sentences were 
handled smoothly.
  The Department of Justice supports guideline retroactivity and the 
Bureau of Prisons has implemented a plan to carry out the logistics. 
The Criminal Law Committee of the Judicial Conference of the United 
States, comprised of judges from every Federal circuit, unequivocally 
supports retroactivity.
  Opponents simply ignore the history and have used scare tactics to 
raise misleading questions of public safety. Retroactivity does not 
automatically entitle a defendant to a sentence reduction. A Federal 
judge would have discretion to decide in every single case whether a 
reduction is appropriate. If it is not--because of the facts of a case 
or concerns about an individual defendant--no reduction will be given. 
Period.

[[Page 10191]]

All judges are actually required to consider public safety when making 
a decision. Moreover, on the back end, the Bureau of Prisons has said 
that it ``is prepared to take measures to ensure that offenders 
released due to retroactive application . . . are transitioned 
effectively back into the community.''
  In short the Sentencing Commission should use the expert discretion 
Congress granted it to apply its amendment retroactively to each 
defendant subject to a sentencing scheme Congress determined was 
unjust. I hope the Commission does the right thing and applies 
retroactively the sentencing guideline amendment implementing the Fair 
Sentencing Act.
  Retroactivity would bolster respect for our justice system, help 
correct the unfairness of a racially disparate sentencing scheme, and 
save resources for taxpayers while heeding concerns of public safety.

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