Statements On Introduced Bills And Joint Resolutions

Floor Speech

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By Mr. DURBIN (for himself, Mr. Leahy, Mr. Specter, Mr. Feingold, Mr. Cardin, Mr. Whitehouse, Mr. Kaufman, Mr. Franken, Mr. Dodd, Mr. Kerry, and Mr. Levin):

S. 1789. A bill to restore fairness to Federal cocaine sentencing; to the Committee on the Judiciary.

Mr. DURBIN. Mr. President, I rise to speak about the Fair Sentencing Act of 2009, which I am introducing today.

This narrowly tailored bill would eliminate the sentencing disparity that exists in the United States between crack cocaine and powder cocaine. At the same time, it would increase penalties for the worst offenders for crimes involving these substances. It accomplishes two very important goals: One goal is to restore fairness to drug sentencing and, second, to focus our limited Federal resources on the most effective way to end violent drug trafficking.

I have cast thousands of votes as a Member of the House of Representatives and the Senate. Most of those votes are kind of lost in the shadows of history. Some were historic, relative to going to war and impeachment issues, and you never forget those.

But there was one vote I cast more than 20 years ago which I regret. It was a vote that was cast by many of us in the House of Representatives, when we were first informed about the appearance of a new narcotic on the streets. It was called crack cocaine. It was so cheap it was going to be plentiful, and it was so insidious--or at least we were told that 20 years ago--we were advised to take notice and do something dramatic and we did.

More than 20 years ago, I joined many Members of Congress from both political parties in voting for the Anti-Drug Abuse Act of 1986. It established the Federal cocaine sentencing framework that is still in place today.

Under this law, it takes 100 times more powder cocaine than crack cocaine to trigger the same 5-to-10-year mandatory minimum sentence. This is known as the 100-to-1 crack/powder sentencing disparity. But that phrase doesn't tell the story. Here is the story. Simply possessing 5 grams of crack, which is the equivalent of holding five packets of sugar or Equal or one of the sugar substitutes, simply possessing that small amount of crack cocaine under the current sentencing framework carries the same sentence as selling--not possessing but selling--500 grams of powder cocaine--the equivalent of 500 packets of sugar. Why? Well, because we believed we were dealing with a different class of narcotics; something that was much more dangerous and should be treated much more harshly.

Make no mistake, cocaine--whether in crack or powder form--has a devastating impact on families and on our society and we need to have tough legislation when it comes to narcotics. But in addition to being tough, our drug laws have to be fair.

Right now, our cocaine laws are based on a distinction between crack and powder cocaine which cannot be justified. Our laws don't focus on the most dangerous offenders. Incarcerating for 5 to 10 years people who are possessing five sugar packets' worth of crack cocaine for the same period of time as those who are selling 500 sugar-size packets of powder cocaine is indefensible.

The Fair Sentencing Act, which I am introducing today, would completely eliminate this crack/powder disparity. It establishes the same sentences for crack and powder--a 1-to-1 sentencing ratio.

Those of us who supported the law establishing this disparity had good intentions. We followed the lead and advice of people in law enforcement. We wanted to address this crack epidemic that was spreading fear and ravaging communities. But we have learned a great deal in the last 20 years. We now know the assumptions that led us to create this disparity were wrong.

Vice President Joe Biden, one of the authors of the legislation creating this disparity in sentencing, has said: ``Each of the myths upon which we based the disparity has since been dispelled or altered.''

Earlier this year, I held a hearing in the Senate Judiciary Committee on this disparity in sentencing and we learned the following: Crack is not more addictive than powder cocaine, and crack cocaine offenses do not involve significantly more violence than powder cocaine offenses. Those were the two things that led us to this gross disparity in sentencing between powder cocaine and crack cocaine. We were told it is different; it is more addictive. It is not. We were also told it was going to create conduct which was much more violent than those who were selling powder cocaine and their activities. It did not.

We have also learned that more than 2.3 million people are imprisoned in America today. That is the most prisoners and the highest per capita rate of prisoners of any country in the world, and it is largely due to the incarceration of nonviolent drug offenders in America. African Americans are incarcerated at nearly six times the rate of White Americans. These are issues of fundamental human rights and justice our country must face.

It is important to note that the crack/powder disparity disproportionately affects African Americans. While African Americans constitute less than 30 percent of crack users, they make up 82 percent of those convicted of Federal crack offenses.

At a hearing I held, we heard compelling testimony from Judge Reggie B. Walton, who was Associate Director of the Office of Drug Control Policy under President George H.W. Bush and was appointed by President George W. Bush to the Federal bench. Judge Walton is an African American, and he testified about ``the agony of having to enforce a law that one believes is fundamentally unfair and disproportionately impacts individuals who look like me.''

We also heard about the negative impact the crack/powder disparity has on the criminal justice system. Judge Walton further testified about ``jurors who would tell me that they refused to convict, that even though they thought the evidence was overwhelming, they were not prepared to put another young black man in prison knowing the sentencing disparity that existed between crack and powder cocaine.''

Asa Hutchinson, who was head of the Drug Enforcement Administration under President George W. Bush, testified: ``Under the current disparity, the credibility of our entire drug enforcement system is weakened.''

The crack disparity also diverts resources away from the prosecution of large-scale drug traffickers. In fact, more than 60 percent of defendants convicted of Federal crack crimes are street-level dealers or mules.

During these difficult economic times, it is also important to note that the crack/powder disparity has placed an enormous burden on taxpayers and the prison system. Based on the Bureau of Prison's estimates of the annual costs of incarceration and the U.S. Sentencing Commission's projections of the number of prison beds reduced per year, we know that eliminating this disparity could save more than $510 million in prison beds over 15 years.

There is widespread and growing agreement that the Federal cocaine and sentencing policy in the United States today is unjustified and unjust.

At the hearing I held on the crack/powder disparity, Lanny Breuer, the Assistant Attorney General of the Criminal Division, announced that the Justice Department and this administration support completely eliminating the crack/powder disparity and establishing a 1-to-1 ratio, which is included in my bill.

In June, Attorney General Eric Holder testified before the Senate Judiciary Committee. I asked him about this issue and here is what he said.

When one looks at the racial implications of the crack-powder disparity, it has bred disrespect for our criminal justice system. It has made the job of those of us in law enforcement more difficult. ..... [I]t is time to do away with that disparity.

Here on Capitol Hill, Democrats and Republicans alike have advocated fixing the disparity for years.

The following 10 Senators are original cosponsors of the Fair Sentencing Act: Senator Patrick Leahy, the Chairman of the Judiciary Committee, who for years has advocated for drug sentencing reform; Senator Arlen Specter, the Chair of the Judiciary Committee's Crime and Drugs Subcommittee; Five other members of the Senate Judiciary Committee--Senators Russ Feingold, Ben Cardin, Sheldon Whitehouse, Ted Kaufman, and Al Franken; and Senators John Kerry, Chris Dodd, and Carl Levin.

I would also like to recognize at this point, though he is not a cosponsor of the bill, Senator Jeff Sessions, the ranking member of the Judiciary Committee. He has been a leader in calling for reform of crack/powder sentencing policy.

The Senator from Alabama is a former U.S. attorney, not known to be soft on crime in any way, shape, or form, but he was one of the first to speak out about the injustice of the crack/powder disparity. I continue my dialog with Senator Sessions in the hope that he and I can come to a common place with regard to this important issue.

There is a bipartisan consensus about the need to fix the crack-powder disparity. I have been in discussions with Chairman Leahy and Ranking Member Sessions, as well as Republican Senators Lindsey Graham, Orrin Hatch, and Tom Coburn, and I am confident that the Judiciary Committee can come together to find a bipartisan solution to this problem.

A broad coalition of legal, law enforcement, civil rights, and religious leaders and groups from across the political spectrum supports eliminating the crack-powder disparity, including, for example: Los Angeles Police Chief Bill Bratton, Miami Police Chief John Timoney, The American Bar Association, The Leadership Conference on Civil Rights, The National Black Police Association, and The United Methodist Church.

The bipartisan United States Sentencing Commission has been urging Congress to act for 15 years. They have argued that fixing the crack-powder disparity ``would better reduce the [sentencing] gap [between African Americans and whites] than any other single policy change, and it would dramatically improve the fairness of the federal sentencing system.'' The Sentencing Commission has repeatedly recommended that Congress take two important steps: No. 1, reduce the sentencing disparity by increasing the quantities of crack cocaine that trigger mandatory minimum sentences; and No. 2, eliminate the mandatory minimum penalty for simple possession of crack cocaine. This is the only mandatory minimum sentence for simple possession of a drug by a first time offender.

The bill that I have introduced does both those things.

In order to ensure that limited Federal resources are directed toward the largest drug traffickers and the most violent offenders, not just those guilty of simple possession and a first offense, the Fair and Sentencing Act provides for increased penalties for drug offenses involving vulnerable victims, violence and other aggravating factors.

For example, an individual being prosecuted for possessing either crack or powder cocaine will face more jail time if he: uses or threatens to use violence; uses or possesses a dangerous weapon; is a manager, leader or organizer of drug trafficking activities; or distributes drugs to a pregnant woman or minor.

The bill would also increase the financial penalties for drug trafficking. This sentencing structure will shift Federal resources towards violent traffickers and away from nonviolent drug users who are best dealt with at the State level.

In the final analysis, this legislation is about fixing an unjust law that has taken a great human toll. At the hearing I held in the Judiciary Committee, we heard testimony from Cedric Parker, who is from Alton in my home State of Illinois. In 2000, Mr. Parker's sister, Eugenia Jennings, was sentenced to 22 years in prison for selling 14 grams of crack cocaine. Mr. Parker told us that Eugenia was physically and sexually abused from a young age. She was addicted to crack by the time she was 15.

Eugenia has three children, Radley, Radeisha, and Cardez. They are now 11, 14, and 15. These children were 2, 5, and 6 when their mother went to prison for selling the equivalent of 6 sugar cubes of crack. They have seen their mother once in the last 9 years. They will be 21, 24, and 25 when she is released in 2019.

At Eugenia's sentencing, Judge Patrick Murphy said this:

Mrs. Jennings, nobody has ever been there for you when you needed it. When you were a child and you were being abused, the Government wasn't there. But when you had a little bit of crack, the government was there. And it is an awful thing, an awful thing to separate a mother from her children. That's what the Government has done for Eugenia Jennings.

It is time to right this wrong. We have talked about the need to address the crack-powder disparity for long enough. Now, it's time to act. I urge my colleagues to join me in supporting the Fair Sentencing Act of 2009.

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