Fair Sentencing Act Guideline Amendment

Floor Speech

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. 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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