[House Report 111-670]
[From the U.S. Government Publishing Office]
111th Congress Rept. 111-670
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
FAIRNESS IN COCAINE SENTENCING ACT OF 2009
_______
December 1, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 3245]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3245) to amend the Controlled Substances Act and the
Controlled Substances Import and Export Act regarding penalties
for cocaine offenses, and for other purposes, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 8
Constitutional Authority Statement............................... 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 9
Additional Views................................................. 12
Dissenting Views................................................. 15
Purpose and Summary
H.R. 3245, the ``Fairness in Cocaine Sentencing Act of
2009,'' sponsored by Rep. Scott (D-VA) repeals the reference to
cocaine base from 21 U.S.C. Sec. Sec. 841, 844, 960. This bill
also eliminates the 5-year mandatory minimum sentence for
simple possession of cocaine base.\1\
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\1\Subsequent to the Committee's ordering H.R. 3245 favorably
reported, the Senate passed similar legislation, S. 1789, which,
instead of eliminating the disparity in sentencing between crack and
powder cocaine entirely, reduced the disparity from 100-to-1 down to
18-to-1. S. 1789 was agreed to by the House, and became Public Law No.
111-220. The Committee submits this report as a faithful description of
the legislation approved by the Committee, as a contribution to the
legislative history.
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Background and Need for the Legislation
Crack cocaine, also known as cocaine base, is a method of
packaging powder cocaine, produced by heating a mixture of
powder cocaine (cocaine hydrochloride), baking soda (sodium
bicarbonate), and water. The chemical interaction between these
ingredients creates a hard material similar to a rock.\2\ By
1986, crack cocaine was widely available and relatively
inexpensive in large U.S. cities. The availability of crack
cocaine accordingly revolutionized inner-city drug markets.\3\
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\2\Craig Reinarman & Harry G. Levine, Crack in Context: America's
Latest Drug Demon, in Crack in America: Demon Drug, and Social Justice
6-7 (Craig Reinarman & Harry G. Levine Eds., 1997).
\3\Id. at 6-7.
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The growth of the inner-city crack cocaine market gave rise
to dramatic claims about the effects of crack cocaine on users
and communities. Many believed that crack was more addictive
than powder cocaine\4\ and that it was associated with greater
levels of violence. In addition, public attention on children
who had been exposed to crack in utero, or ``crack babies,''\5\
gave rise to the perception that in-utero exposure to crack
cocaine caused more pronounced developmental difficulties in
children than in-utero exposure to powder cocaine.\6\ In June
1986, public concern intensified as a result of the high-
profile death of Len Bias, a popular Washington area college
basketball star. Bias's death, on the evening he was
celebrating being drafted by the Boston Celtics of the National
Basketball Association, was believed to be related to crack
cocaine. Ironically, Len Bias's death was later shown to have
been from a powder cocaine overdose--not a crack cocaine
overdose as initially believed.
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\4\United States Sentencing Comm'n [hereinafter, ``USSC''], 2002
Report to the Congress: Cocaine and Federal Sentencing Policy (May
2002) 93.
\5\John P. Morgan and Lynn Zimmer, Social Pharmacology of Smokeable
Cocaine, In Crack in America: Demon Drug, and Social Justice 149, 151-
152 (Craig Reinarman & Harry G. Levine Eds., 1997).
\6\USSC, 2002 Report to the Congress: Cocaine and Federal
Sentencing Policy (May 2002) 94.
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Following the intense public reaction to Bias's death,
Congress passed the Anti-Drug Abuse Act of 1986, establishing
mandatory minimum sentences triggered by specific quantities of
cocaine and crack cocaine.\7\ Because many lawmakers at the
time believed crack cocaine was more dangerous than the powder
form of the drug, the 1986 Act imposed stricter penalties for
crimes involving even small amounts of crack cocaine. The Act
accordingly provided for a 5 year mandatory minimum sentence
for convictions of crimes involving just 5 grams of crack
cocaine, as compared to the same 5 year mandatory minimum for
500 grams of powder cocaine.\8\ In addition, a 10 year
mandatory minimum sentence was established for individuals
convicted of crimes involving just 50 grams of crack cocaine or
5000 grams of powder cocaine.\9\ The Omnibus Anti-Drug Abuse
Act of 1988 further widened the disparity in drug sentencing,
by specifying that simple possession of 5 grams or more of
crack cocaine is subject to a 5-year mandatory minimum
sentence, up to a 20-year maximum.\10\ In contrast, the maximum
penalty for simple possession of any other illegal drug,
including powder cocaine, remains at 1 year incarceration.
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\7\Pub. L. No. 99-570, 100 Stat. 3207 (codified as amended at 21
U.S.C. Sec. 801 et. seq. (2000)) [hereinafter ``1986 Act''].
\8\21 U.S.C. 841(b)(1)(B)(ii) and (iii).
\9\21 U.S.C. 841(b)(1)(A)(ii) and (iii).
\10\21 U.S.C. 844(a).
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Over the last 20 years, the assumptions about the more
severe effects of crack cocaine compared to powder cocaine have
been proven unfounded. In particular, the violence associated
with crack, similar to violence associated with the trafficking
of other drugs, has been shown to be related to the illegal
drug market, rather than any physiological effects of the drug
itself.\11\ The notable rise in violence in the mid-to-late
1980's, when crack cocaine began to infiltrate cities across
the country, was associated with the growing drug market and
the resulting territorial disputes between low-level street
corner drug dealers.\12\ Moreover, recent data indicates that
significantly less trafficking-related violence is associated
with crack than was previously assumed. For example, in 2005:
1) 57.3% of overall crack offenses did not involve weapons with
regard to any participant; 2) 67.6 % of crack offenders had no
personal weapons involvement; and 3) only 2.9% of crack
offenders actively used a weapon.\13\
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\11\Paul J. Goldstein et al., Crack and Homicides in New York City:
a Case Study in the Epidemiology of Violence, in Crack in America:
Demon Drug, and Social Justice 120(craig Reinarman & Harry G. Levine
Eds., 1997) [Hereinafter ``Crack and Homicides in New York City''].
\12\Id. At 119-120.
\13\USSC, 2007 Report to the Congress: Cocaine and Federal
Sentencing Policy (2007) 32-33.
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Scientific and medical research has also found that crack
and powder cocaine have essentially the same pharmacological
and physiological effects on a person. In 2002, Dr. Ira J.
Chasnoff, President of the Children's Research Triangle,
testified before the United States Sentencing Commission that
``since crack and powder cocaine are essentially the same drug,
the effects on the fetal brain are the same whether the mother
used crack cocaine or powder cocaine.''\14\ In November 2006,
Dr. Nora Volkow, Director of the National Institute on Drug
Abuse of the National Institute of Health testimony before the
United States Sentencing Commission concluded the following:
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\14\USSC, 2002 Report to the Congress: Cocaine and Federal
Sentencing Policy (May 2002) E-4.
Research consistently shows that the crucial variables
at play are the immediacy, duration, and magnitude of
cocaine's effects, as well as the frequency and amount
of cocaine used rather than the form. In other words,
the physiological and psychoactive effects of cocaine
are similar regardless of whether it is in the form of
cocaine hydrochloride (powder) or crack cocaine.\15\
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\15\Testimony of Nora D. Volkow, M.D. before the U.S. Sentencing
Commission (November 14, 2006).
While many of the dangers and consequences thought to be
associated with crack cocaine did not materialize, the crack
cocaine law and other Federal drug laws have resulted in
staggering increases in the number of Federal drug offenders in
prison. For example, since 1980 offenders in Federal prisons
for drug offenses has increased from 4,900 then to 99,047 in
2009.\16\ In 2009, drug offenders represent 52% of all Federal
prison inmates.\17\ African Americans serve almost as much time
in Federal prison for a drug offense (58.7 months) as whites do
for a violent offense (61.7 months), largely due to sentencing
laws such as the 100-to-1 crack-powder cocaine disparity.\18\
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\16\Marc Mauer and Ryan S. King, A 25-Year Quagmire: The War on
Drugs and Its Impact on American Society, The Sentencing Project, 11
(September 2007) update with 2009 statistics.
\17\Id.
\18\Id. at 23.
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Government data demonstrate that drug use rates are similar
among all racial and ethnic groups. For crack cocaine, two-
thirds of users in the U.S. are white or Hispanic.\19\
Furthermore, research on drug market patterns demonstrates that
drug users generally purchase drugs from sellers of the same
racial or ethnic background.\20\ Despite these facts, people of
color are disproportionately subject to the penalties for both
types of cocaine. Indeed, 81.8 percent of crack cocaine
defendants in 2006 were African American.\21\
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\19\Substance Abuse and Mental Health Services Administration,
Results from the 2005 National Survey on Drug Use and Health: Detailed
Table J (Washington, DC: Sept. 2006), Table 1.43a.
\20\Dorothy Lockwood, Anne E. Pottieger, and James A. Inciardi,
``Crack Use, Crime by Crack Users, and Ethnicity,'' in Darnell F.
Hawkins, ed., Ethnicity, Race and Crime. New York: State University of
New York Press, 1995, p. 21.
\21\USSC, 2007 Report to the Congress: Cocaine and Federal
Sentencing Policy (2007) 15.
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Four reports issued by the U.S. Sentencing Commission to
Congress on the Federal cocaine sentencing policy, in 1995,
1997, 2002 and 2007, have all urged Congress to change the
current Federal crack cocaine law.\22\ The Commission report in
2007 reiterated its 2002 findings that the current severity of
crack cocaine penalties mostly impacts minorities, overstates
the harmfulness of crack cocaine in comparison with powder
cocaine, and overstates the seriousness of most crack cocaine
offenses.\23\ In order to address these findings, the
Commission recommended that Congress repeal the mandatory
minimum penalty for simple possession of crack cocaine under 21
U.S.C. 844, reduce the 100-to-1 disparity, and increase the
threshold quantities for crack cocaine offenses that result in
5- and 10-year mandatory minimum sentences in order to
concentrate on more major traffickers.\24\
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\22\United States Sentencing Commission [hereinafter, ``USSC''],
2007 Report to the Congress: Cocaine and Federal Sentencing Policy (May
2007); USSC, 2002 Report to the Congress: Cocaine and Federal
Sentencing Policy (May 2002); USSC, 1997 Special Report to the
Congress: Cocaine and Federal Sentencing Policy (As Directed by Section
2 of Pub. L. No. 104-38) (April 1997); USSC, 1995 Special Report to the
Congress: Cocaine and Federal Sentencing Policy (As Directed by Section
280006 of Pub. L. No. 103-322) (February 1995).
\23\USSC, 2007 Report to the Congress: Cocaine and Federal
Sentencing Policy 7-8 (2007).
\24\Id.
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Hearings
The Committee on the Judiciary's Subcommittee on Crime,
Terrorism, and Homeland Security held a day of hearings on May
21, 2009 on legislation addressing this issue, including H.R.
1459, the ``Fairness in Cocaine Sentencing Act of 2009''; H.R.
2178, the ``Crack Cocaine Equitable Sentencing Act of 2009'';
H.R. 265, ``Drug Sentencing Reform and Kingpin Trafficking Act
of 2009''; H.R. 1466, the ``Major Drug Trafficking Prosecution
Act of 2009''; and H.R. 18, the ``Powder-Crack Cocaine
Equalization Act of 2009.'' Testimony was received from four
Congressional Members, including Rep. Charles B. Rangel (D-NY);
Rep. Sheila Jackson Lee (D-TX); Rep. Roscoe G. Bartlett (R-MD);
and Rep. Maxine Waters, (D-CA).
Testimony was also received from the Honorable Lanny A.
Breuer, Assistant U.S. Attorney General for the Criminal
Division of the Department of Justice; The Honorable Ricardo H.
Hinojosa, Acting Chairman of the United States Sentencing
Commission; Willie Mays Aikens, former Kansas City Royal and
Federal drug offender; Marc Mauer, Executive Director of The
Sentencing Project; Veronica Coleman Davis, President and CEO
of the National Institute of Law and Equity (NILE); Scott
Patterson, District Attorney, Easton, Maryland, on behalf of
Joseph I. Cassilly, President of the National District
Attorneys' Association; and Bob Bushman, Vice President,
National Narcotics Officers Association. Additional materials
were submitted by Families Against Mandatory Minimums, the
American Bar Association, Harvard Law Professor Charles
Ogletree, and the Justice Roundtable Coalition.
H.R. 3245 was introduced by Crime Subcommittee Chairman
Scott on July 16, 2009, in light of the May 21 hearings.
Committee Consideration
On July 22, 2009, the Subcommittee on Crime, Terrorism, and
Homeland Security met in open session and ordered the bill H.R.
3245 favorably reported without amendment, by voice vote, a
quorum being present. On July 29, 2009, the Committee met in
open session and ordered the bill H.R. 3245 favorably reported
without amendment, by a rollcall vote of 16 to 9, a quorum
being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 3245:
1. A motion by Rep. Issa to table the appeal of the Chair's
ruling that an amendment offered by Rep. Darrell Issa was non-
germane. Agreed to 14 to 13.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei......................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
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Total....................................................... 14 13
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2. Motion to report H.R. 3245 favorably. Passed 16 to 9.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei......................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper......................................................
-----------------------------------------------
Total....................................................... 16 9
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3245, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 1, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3245, the
``Fairness in Cocaine Sentencing Act of 2009.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 3245--Fairness in Cocaine Sentencing Act of 2009.
CBO estimates that implementing H.R. 3245 would lead to
reduced spending by the Federal prison system of $3 million
over the 2010-2014 period. Enacting the bill could affect
direct spending and revenues, but CBO estimates that any such
effects would not be significant.
H.R. 3245 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
Under current law, persons convicted of offenses involving
crack cocaine or powder cocaine are subject to mandatory
minimum prison sentences, but the drug quantity necessary to
trigger the minimum sentence is lower for crack cocaine. H.R.
3245 would eliminate this disparity and provide equal
punishment for all cocaine offenses. In doing so, the bill
would decrease prison sentences and potential fines for crack
cocaine offenders.
The U.S. Sentencing Commission analyzed the bill's impact
on the Federal prison population. Based on this analysis, CBO
estimates that the shorter sentences required under the bill
would decrease the prison population by about 250 person-years
over the 2010-2014 period. According to the Bureau of Prisons,
a decrease in the Federal prison population of this magnitude
would save about $10,000 a year for each prisoner. CBO
estimates that the savings from implementing H.R. 3245 would
total $3 million over the 2010-2014 period.
Because those prosecuted and convicted for offenses
involving cocaine could be subject to criminal fines, the
Federal Government might collect smaller fines if H.R. 3245 is
enacted. Criminal fines are recorded as revenues, deposited in
the Crime Victims Fund, and later spent. CBO estimates that any
such effects would have negligible net costs over the 2009-2014
and 2009-2019 periods.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3245, eliminates the distinction between crack cocaine (i.e.
cocaine base) and powder cocaine in Federal law, as well as the
mandatory minimum Federal sentence for cocaine base.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 1 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3245 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Fairness in Cocaine Sentencing Act of
2009.''
Sec. 2. Elimination of increased penalties for cocaine
offenses where the cocaine involved is cocaine base. Section 2
eliminates distinction in penalties as between cocaine and
cocaine base. Subsection (a) eliminates the distinction with
respect to penalties for manufacturing, distributing, or
dispensing, including the mandatory minimum sentence for simple
possession of cocaine base. Subsection (b) eliminates the
distinction with respect to importing and exporting.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CONTROLLED SUBSTANCES ACT
* * * * * * *
Part D--Offenses and Penalties
prohibited acts a--penalties
Sec. 401. (a) * * *
(b) Except as otherwise provided in section 409, 418, 419, or
420 any person who violates subsection (a) of this section
shall be sentenced as follows:
(1)(A) In the case of a violation of subsection (a) of this
section involving--
(i) * * *
* * * * * * *
[(iii) 50 grams or more of a mixture or substance
described in clause (ii) which contains cocaine base;]
* * * * * * *
(B) In the case of a violation of subsection (a) of this
section involving--
(i) * * *
* * * * * * *
[(iii) 5 grams or more of a mixture or substance
described in clause (ii) which contains cocaine base;]
* * * * * * *
PENALTY FOR SIMPLE POSSESSION
Sec. 404. (a) It shall be unlawful for any person knowingly
or intentionally to possess a controlled substance unless such
substance was obtained directly, or pursuant to a valid
prescription or order, from a practitioner, while acting in the
course of his professional practice, or except as otherwise
authorized by this title or title III. It shall be unlawful for
any person knowingly or intentionally to possess any list I
chemical obtained pursuant to or under authority of a
registration issued to that person under section 303 of this
title or section 1008 of title III if that registration has
been revoked or suspended, if that registration has expired, or
if the registrant has ceased to do business in the manner
contemplated by his registration. It shall be unlawful for any
person to knowingly or intentionally purchase at retail during
a 30 day period more than 9 grams of ephedrine base,
pseudoephedrine base, or phenylpropanolamine base in a
scheduled listed chemical product, except that, of such 9
grams, not more than 7.5 grams may be imported by means of
shipping through any private or commercial carrier or the
Postal Service. Any person who violates this subsection shall
be sentenced to a term of imprisonment of not more than 1 year,
and be fined a minimum of $1,000, or both, except that if he
commits such offense after a prior conviction under this title
or title III, or a prior conviction for any drug, narcotic, or
chemical offense chargeable under the law of any State, has
become final, he shall be sentenced to a term of imprisonment
for not less than 15 days but not more than 2 years, and shall
be fined a minimum of $2,500, except, further, that if he
commits such offense after two or more prior convictions under
this title or title III, or two or more prior convictions for
any drug, narcotic, or chemical offense chargeable under the
law of any State, or a combination of two or more such offenses
have become final, he shall be sentenced to a term of
imprisonment for not less than 90 days but not more than 3
years, and shall be fined a minimum of $5,000. [Notwithstanding
the preceding sentence, a person convicted under this
subsection for the possession of a mixture or substance which
contains cocaine base shall be imprisoned not less than 5 years
and not more than 20 years, and fined a minimum of $1,000, if
the conviction is a first conviction under this subsection and
the amount of the mixture or substance exceeds 5 grams, if the
conviction is after a prior conviction for the possession of
such a mixture or substance under this subsection becomes final
and the amount of the mixture or substance exceeds 3 grams, or
if the conviction is after 2 or more prior convictions for the
possession of such a mixture or substance under this subsection
become final and the amount of the mixture or substance exceeds
1 gram.] Notwithstanding any penalty provided in this
subsection, any person convicted under this subsection for the
possession of flunitrazepam shall be imprisoned for not more
than 3 years, shall be fined as otherwise provided in this
section, or both. The imposition or execution of a minimum
sentence required to be imposed under this subsection shall not
be suspended or deferred. Further, upon conviction, a person
who violates this subsection shall be fined the reasonable
costs of the investigation and prosecution of the offense,
including the costs of prosecution of an offense as defined in
sections 1918 and 1920 of title 28, United States Code, except
that this sentence shall not apply and a fine under this
section need not be imposed if the court determines under the
provision of title 18 that the defendant lacks the ability to
pay.
* * * * * * *
----------
SECTION 1010 OF THE CONTROLLED SUBSTANCES IMPORT AND EXPORT ACT
prohibited acts a--penalties
Sec. 1010. (a) * * *
(b)(1) In the case of a violation of subsection (a) of this
section involving--
(A) * * *
* * * * * * *
[(C) 50 grams or more of a mixture or substance
described in subparagraph (B) which contains cocaine
base;]
* * * * * * *
(2) In the case of a violation of subsection (a) of this
section involving--
(A) * * *
* * * * * * *
[(C) 5 grams or more of a mixture or substance
described in subparagraph (B) which contains cocaine
base;]
* * * * * * *
Additional Views
As part of the Anti-Drug Abuse Act of 1986, Congress
enacted statutory mandatory minimum sentences for various
illegal drugs, including a 5-year mandatory minimum sentence
for trafficking 5 grams of crack cocaine and 500 grams of
powder, and a 10-year mandatory minimum sentence for
trafficking 50 grams of crack cocaine and 5 kilograms of powder
cocaine, creating the 100 to 1 disparity that exists today.
Based upon the information available at the time, it was
believed that crack and powder cocaine were different
substances and that they did in fact have a different impact.
We know now, however, that as far as substances are concerned,
they are basically the same. Crack and powder cocaine have
identical effects. There is some evidence that suggests that
crack is slightly more addictive because it is smoked rather
than snorted. Smoking the drug causes it to reach the brain
faster, and it also wears off more quickly. This makes users
want to smoke it more often, but that hardly justifies imposing
the same mandatory minimum sentence for possession of 5 grams
of crack as is imposed for 500 grams of powder. Both the
Supreme Court and the U.S. Sentencing Commission have
recognized the unfairness in this disparity and have acted to
reduce it, but only Congress is able to eliminate the disparity
altogether.
Passed at a time when a crack cocaine epidemic was ravaging
inner cities and fueling gang violence, the law was intended to
target the kingpins at the top of the crack trade. According to
a 2002 report by the U.S. Sentencing Commission, it has swept
up mostly small-time, street-level dealers. When low-level
crack dealers are punished more harshly than wholesale
suppliers of powder cocaine, a necessary ingredient to make
crack, it undermines people's confidence in the criminal
justice system. In order for a law to be respected, it has to
be consistent, and it has to make sense.
Instead of reducing drug addiction and crime, our current
drug policy has contributed to the swelling of the inmate
population in our prisons. The United States currently has more
than 2.3 million people behind bars, which is the most
prisoners of any country and the highest per capita rate of
prisoners in the world. One in 31 Americans is currently in
prison, on parole, or on probation, and over 50% of these
inmates are imprisoned for drug crimes. Expanded use of prison
sentences for drug crimes has caused a dramatic increase in
state and Federal corrections costs. Since the enactment of
mandatory minimum sentencing for drug users, the Federal Bureau
of Prisons' budget increased from $220 million in 1986 to $5.4
billion in 2008.
Since enactment, it has become apparent that the incidence
of this sentencing differential falls disproportionately on
African-American defendants. While African Americans comprise
only 12.3 percent of the U.S. population in general, they make
up 81.8 percent of crack cocaine offenders. They are
incarcerated at nearly six times the rate of whites.
Criminal sentencing should be uniform between similarly
situated offenders and proportional to the crime, but mandatory
sentences for crack cocaine have resulted in excessively severe
sentences. Because crack offenses carry longer sentences than
equivalent powder cocaine offenses, African-American defendants
sentenced for cocaine offenses wind up serving prison terms
that are greater than those served by other cocaine defendants.
Statutes that provide for the mandatory minimum sentences for
crack cocaine and the Federal sentencing guidelines have in
effect violated the equal protection component of the Fifth
Amendment due process clause. The Equal Protection Clause
commands that ``all persons similarly circumstanced shall be
treated alike.'' Due process demands that the law shall not be
unreasonable, arbitrary, or capricious, and the means selected
shall have a real and substantial relation to the object.
Cocaine has a devastating effect on our society, but we
cannot address the problem through law enforcement alone. Many
inmates struggle with drug addiction, and not all inmates get
the treatment they need. According to the Bureau of Justice
Statistics, less than 15 percent of Federal offenders with drug
problems receive treatment while in prison. Funding shortages
for addiction recovery programs, a lack of in-prison treatment,
and inadequate rehabilitation options create a bleak reentry
situation for drug offenders.
Treatment interventions for substance abuse are far more
cost-effective than a continued reliance on our overburdened
prison system. A series of studies in recent years have
demonstrated that drug treatment both within and outside of the
criminal justice system is more cost effective in controlling
drug abuse and crime. A study by the R.A.N.D. Corporation
concluded that spending one million dollars to expand the use
of mandatory sentencing for drug offenders would reduce drug
consumption nationally by 13 kilograms, but spending the same
amount on treatment would reduce consumption by almost eight
times that number. The bottom line is that inmates who receive
treatment are less likely to revert back to drugs than those
who do not. The best solution is one that combines tough
enforcement with robust prevention and treatment efforts.
There is growing concern that there should not be a 100:1
ratio in the amounts of powder and crack cocaine that trigger
mandatory minimum sentences. In 2007, the U.S. Sentencing
Commission, which sets the advisory guideline range that
Federal judges use when sentencing defendants, unanimously
voted to reduce lengthy sentences for people convicted of crack
cocaine related offenses. It was intended as a step toward
reducing some of the unwarranted disparity. The amendment went
unchallenged by Congress and went into effect on November 1,
2007. In December of the same year, the Commission made the
guideline change retroactive to persons sentenced prior to
November 1st. Retroactivity of the crack cocaine amendment
became effective on March 3, 2008. Not every crack cocaine
offender will be eligible for a lower sentence under the
decision. A Federal sentencing judge will make the final
determination of whether an offender is eligible for a lower
sentence and how much that sentence should be lowered.
The Sentencing Commission addressed the sentencing policy
on its own, and the Supreme Court has taken a similar approach.
On January 12, 2005, a momentous Supreme Court decision in
United States v. Booker changed the terrain of Federal
sentencing. The decision essentially made room for reform
within the Federal system by changing the sentencing guidelines
from mandatory to advisory, returning discretion to the
sentencing judge.
In late 2007, in United States v. Kimbrough, the Supreme
Court made a fundamental change in how Federal judges apply
sentencing guidelines regarding cocaine. The Kimbrough decision
extended the Booker principle to the issue of crack cocaine.
The Court ruled that a Federal judge hearing a crack cocaine
case may consider the disparity between the treatment of crack
and powder offenses, allowing Federal judges to sentence
outside the sentencing guidelines range and impose more
reasonable prison sentences for persons convicted of offenses
involving crack cocaine. This decision clarified that both the
Sentencing Guidelines and the crack to powder ratio are
considerations for the district court to take into
consideration when sentencing a defendant.
H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009
would eliminate the current 100-to-1 sentencing disparity
between crack and powder cocaine sentences. The bill would
remove references to ``cocaine base'' from the U.S. Code,
effectively treating all cocaine, including crack, the same for
sentencing purposes. It is important to note that the
possession and sale of any amount of either drug is still a
felony. The bill only addresses the trigger levels for
mandatory minimum sentencing, not whether or not it is a
felony. All cocaine, in whatever form, will be punished at the
current level of powder cocaine. This ensures that those
individuals who have violated the law will be punished fairly
relative to the punishment. I fully support efforts to address
the disparity in crack and powder cocaine sentencing and hope
the full House takes this up as soon as possible.
Daniel Maffei.
Dissenting Views
We oppose H.R. 3245, which effectively removes crack
cocaine from the Federal drug laws, and, by doing so,
eliminates any distinction between penalties for crack and
powder cocaine trafficking offenses. This legislation sends the
wrong message to drug dealers: that Congress does not take
drug-trafficking crimes seriously.
Twenty-five years ago, crack cocaine trafficking strangled
many communities--especially inner-city communities--where
residents lived in fear of dealers who controlled the street-
corners. In 1986, the Democratic-controlled Congress responded
to this epidemic of drug-dealing and its attendant violence by
rightly enacting tough Federal drug sentencing policies,
including different penalties for crack and powder cocaine
trafficking. And these drug-sentencing policies have reduced
drug-related violence in our cities.
Crack and powder cocaine use has dropped by almost two-
thirds in the last 20 years, from 5.8 million users in 1985 to
2.1 million users in 2007.\1\ The substantial increase in
violence in the mid and late 1980s was attributed to the
introduction of crack cocaine in 1985. Today, crime rates--
particularly for violent crime--are at their lowest in more
than thirty years, thanks in large part to the enactment of
tough penalties for drug trafficking and other offenses.
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\1\See infra note 2; see also infra note 7.
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Section 401 of the Controlled Substances Act (21 U.S.C.
Sec. 841) imposes penalties for trafficking various illegal
drugs based upon threshold amounts that are specific and unique
to each drug. While 1000 kilograms are required to trigger
penalties for major traffickers of marijuana, only 1 kilogram
is required for heroin. The same is true for crack cocaine. It
would be imprudent for Congress to eliminate thresholds
specific to crack cocaine from the Federal drug statutes. To do
so ignores the distinction between crack and powder cocaine
consumption and distribution.
That is why organizations on the front lines in keeping our
communities safe, including the Fraternal Order of Police, the
National Sheriff's Association, the International Association
of Chiefs of Police, the National Narcotics Officers
Association Coalition, and the National District Attorneys
Association, all oppose eliminating the sentencing ratio
between crack and powder cocaine.
REPEATING HISTORY: THE CRACK EPIDEMIC OF THE 1980'S
In the 1980s, cocaine was primarily shipped to the United
States through the Bahamas. A large supply of cocaine powder in
these islands caused the price to drop by 80 percent. Faced
with plummeting prices, drug dealers made the shrewd decision
to convert the powder to ``crack''--a smokeable form of
cocaine. Crack was cheaper than powder cocaine, simple to
produce and highly profitable. As early as 1981, crack appeared
in Los Angeles, San Diego, Houston, and in the Caribbean.\2\
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\2\The Crack Epidemic, DEA History, 1985-1990, Drug Enforcement
Administration, U.S. Department of Justice, available at http://
www.justice.gov/dea/pubs/history/1985-1990.html.
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Powder cocaine was sold on the street for $100 per gram but
with only 55 percent purity. In contrast, crack had 80 percent
or higher purity and could be bought in some major cities for
as little as $2.50 per dose. Crack produced an instant high
that caused its users to become addicted in a very short
time.\3\
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\3\Id.
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The number of Americans addicted to cocaine dramatically
increased thanks to the escalation in crack use. In 1985, 5.8
million Americans admitted to using cocaine on a routine basis,
according to the Department of Health and Human Service's
National Household Survey. According to DAWN statistics,
cocaine-related hospital emergencies rose by 12 percent in
1985, from 23,500 to 26,300. Hospital emergencies increased by
110 percent in 1986, from 26,300 to 55,200. From 1984 and 1987,
cocaine incidents increased fourfold.\4\
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\4\Id.
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In 1986, crack distribution skyrocketed and was now
available in 28 states and the District of Columbia. According
to the 1985-1986 National Narcotics Intelligence Consumers
Committee Report, crack was available in Atlanta, Boston,
Detroit, Kansas City, Miami, New York City, Newark, San
Francisco, Seattle, St. Louis, Dallas, Denver, Minneapolis, and
Phoenix.\5\
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\5\Id.
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By the late 1980s, more than 10,000 gang members were
dealing drugs in some 50 cities across the country. The crack
epidemic had spawned a dramatic increase in violence and crack-
related murders in many large cities skyrocketed. For example,
a 1988 study by the Bureau of Justice Statistics found that in
New York City crack use was tied to 32% of all homicides and
60% of drug-related homicides.\6\
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\6\Id.
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CRACK AFFECTS ITS USERS DIFFERENTLY THAN POWDER COCAINE
The National Institute on Drug Abuse (NIDA) reported in
2008 on the effects of cocaine on the human body.
Abusing cocaine has a variety of adverse effects on the
body. For example, cocaine constricts blood vessels,
dilates pupils, and increases body temperature, heart
rate, and blood pressure. It can also cause headaches
and gastrointestinal complications such as abdominal
pain and nausea. Because cocaine tends to decrease
appetite, chronic users can become malnourished as
well. Different methods of taking cocaine can produce
different adverse effects. Regularly snorting cocaine,
for example, can lead to loss of the sense of smell,
nosebleeds, problems with swallowing, coarseness, and a
chronically runny nose. Ingesting cocaine can cause
severe bowel gangrene as a result of reduced blood
flow. Injecting cocaine can bring about severe allergic
reactions and increased risk for contracting HIV and
other blood-borne diseases. Binge patterns of use may
lead to irritability, restlessness, anxiety, and
paranoia. Cocaine abusers can suffer a temporary state
of full-blown paranoid psychosis, in which they lose
touch with reality and experience auditory
hallucinations. Regardless of how or how frequently
cocaine is used, a user can experience acute
cardiovascular or cerebro-vascular emergencies, such as
a heart attack or stroke, which may cause sudden death.
Cocaine-related deaths are often a result of cardiac
arrest or seizure followed by respiratory arrest.\7\
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\7\NIDA InfoFacts: Cocaine, National Institute on Drug Abuse, Aug.
2008, available at http://www.nida.nih.gov/pdf/infofacts/Cocaine08.pdf.
Although cocaine's physiological effects on the body may be
the same when one ingests it in either powder or crack form,
research shows that crack results in a faster and shorter high,
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resulting in more frequent use. According to NIDA:
The intensity and duration of cocaine's effects, which
include increased energy, reduced fatigue, and mental
alertness, depend on the route of drug administration.
The faster cocaine is absorbed into the bloodstream and
delivered to the brain, the more intense the high.
Injecting or smoking cocaine produces a quicker,
stronger high than snorting. On the other hand, faster
absorption usually means shorter duration of action.
The high from snorting cocaine may last 15 to 30
minutes, but the high from smoking may last only 5 to
10 minutes. In order to sustain the high, a cocaine
abuser has to administer the drug again. For this
reason, cocaine is sometimes abused in binges--taken
repeatedly within a relatively short period of time, at
increasingly high doses.
A study by the University of Minnesota entitled ``Crack
Cocaine and Cocaine Hydrochloride: Are the Differences Myth or
Reality?'' found that:
The physiological and psychoactive effects of cocaine
are similar regardless of whether it is in the form of
cocaine hydrochloride or crack cocaine (cocaine base).
However, evidence exists showing a greater abuse
liability, greater propensity for dependence, and more
severe consequences when cocaine is smoked (cocaine-
base) . . . compared with intranasal use (cocaine
hydrochloride). The crucial variables appear to be the
immediacy, duration, and magnitude of cocaine's effect,
as well as the frequency and amount of cocaine used
rather than the form of the cocaine.\8\
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\8\D.K. Hatsukami and M.W. Fischman, Department of Psychiatry,
Division of Neurosciences, University of Minnesota, Minneapolis (1996).
When smoked, cocaine (i.e. crack) results in a quicker
onset and faster penetration. ``Generally, smoked cocaine
reaches the brain within 20 seconds; the effects last for about
30 minutes, at which time the user, to avoid the effects of a
`crash,' re-uses.''\9\ The Drug Enforcement Administration
(DEA) reports that a crack user will consume between 3.3 to
16.5 grams of crack a week, which translates to an average of
13.2 grams to 66 grams per month.\10\ Crack has a higher purity
and is therefore more potent than powder cocaine. While powder
cocaine is between 47.6 and 53.1% pure, crack's purity is as
high as 60 to 63.5%.
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\9\Statement of Joseph I. Cassilly, President-Elect, National
District Attorneys' Association, before the House Judiciary Committee
Subcommittee on Crime, Terrorism and Homeland Security, Feb. 26, 2008.
\10\Id.
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When powder cocaine is snorted, it has a slower onset.
Psychological effects on the user from snorting cocaine peak
within 20 minutes and the physical effects will manifest
themselves within 40 minutes. Ultimately, the effects from
snorting cocaine typically last for as long as an hour beyond
when the user's high peaks.\11\ ``A typical user snorts between
two and three lines at a time and consumes about 2 grams per
month. Using these amounts, the cost per user per month for
crack cocaine is between $1,300 and $6,600 as compared to a
cost for powder cocaine of $200 per month; a 6.5:1 to 33:1
ratio in cost.''\12\
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\11\Id.
\12\Id.
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CRACK OFFENSES ARE MORE-OFTEN ASSOCIATED WITH OTHER AGGRAVATING FACTORS
While cocaine base--crack--and cocaine hydrochloride--
cocaine powder--are chemically similar, there are significant
differences in the predominant way the two substances are
ingested and marketed. Because crack is distributed in such
relatively small amounts in transactions that often occur on
street corners, control of small geographic areas by
traffickers takes on great importance. As a result, crack
offenders are more likely to possess a weapon, and crack is
often associated with serious crime related to its marketing
and distribution, especially violent street crime connected
with gangs, guns, serious injury and death.
Cocaine trafficking patterns, moreover, lead to high rates
of violence associated with both powder and crack cocaine
trafficking, but especially with crack trafficking. Although
crack trafficking methods vary widely, generally, they are
conducted at three broad levels, namely, wholesale trafficking,
mid-level distribution, and retail selling. Wholesale crack
traffickers purchase cocaine in kilogram or multi-kilogram
allotments from traditional cocaine sources.
Sentencing Commission data show that crack cocaine is
associated with violence to a greater degree than most other
controlled substances. In fiscal year 2008 28.1% of all federal
crack offenders either received a weapons enhancement under the
sentencing guidelines or were convicted of a separate weapons
charge.\13\ In fiscal year 2008, only 16.9% of powder cocaine
offenders either received a weapons enhancement or were
convicted of a weapons charge.\14\ In addition, in fiscal years
2007 and 2008, the average criminal history category for crack
cocaine offenders was Category IV, compared to Category II for
powder cocaine offenders.\15\
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\13\Statement of Ricardo H. Hinojosa, Acting Chair, United States
Sentencing Commission, before the House Judiciary Subcommittee on
Crime, Terrorism, and Homeland Security, May 21, 2009, at 10.
\14\Id.
\15\Id. at 11.
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Much of the crack cocaine violence is associated with gang
activity, and drug gang violence has increased in recent years.
Many drug gangs that traffic in crack cocaine include very
young members who carry and use guns to promote their drug
trafficking. Crack cocaine is associated more with street level
gang violence than is cocaine powder, although gangs also deal
in methamphetamine, PCP, and many other controlled substances.
National Drug Intelligence Center (NDIC) National Drug
Threat Survey (NDTS) data for 2007 show that 40.1 percent of
state and local law enforcement agencies report cocaine or
crack cocaine as the greatest drug threat in their area-higher
than for any other drug.\16\ Moreover, NDTS data show that
nationally, the percentage of state and local agencies that
identified cocaine [powder or crack] as the drug that most
contributed to violent crime (46.9%) and property crime (40.9%)
was much higher than for any other drug. Compounding the
problem posed to the nation by cocaine-related crime is the
relatively high number of cocaine abusers.
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\16\National Drug Threat Assessment 2008, National Drug
Intelligence Center, U.S. Department of Justice, available at http://
www.usdoj.gov/ndic/pubs25/25921/25921p.pdf.
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National Survey on Drug Use and Health (NSDUH) data for
2006 show that more than six million individuals aged 12 and
older used cocaine within the past year, similar to 2005 (5.5
million users) and at a rate higher than for all other illegal
drugs except marijuana.\17\
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\17\Id.
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CONCLUSION
H.R. 3245 threatens to return America to the days when
crack cocaine decimated a generation and destroyed communities.
We cannot support legislation that ignores the violent and
devastating crack cocaine epidemic of the past and the horrible
effects of crack cocaine on our neighborhoods and communities
nationwide.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Bob Goodlatte.
Daniel E. Lungren.
Darrell E. Issa.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Jason Chaffetz.
Tom Rooney.
Gregg Harper.