Fair Sentencing Act Of 2009

Floor Speech

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 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

BREAK IN TRANSCRIPT

Source