03.17.10

Leahy Praises Senate Passage Of Historic Bill To Address Crack/Powder Sentencing Disparity

WASHINGTON – The Senate Wednesday night unanimously approved historic legislation to address the sentencing disparity between crack and powder cocaine.  The Fair Sentencing Act was introduced last year by Senator Dick Durbin (D-Ill.), a senior member of the panel, Committee Chairman Patrick Leahy (D-Vt.), and others, and the Senate Judiciary Committee unanimously advanced the legislation to the full Senate on March 11.

Current law sets out a ratio of 100:1 in terms of the amount of powder cocaine and the amount of crack cocaine that result in the same sentence.  The Fair Sentencing Act, as introduced, would have provided equal treatment under law, creating a 1:1 ratio.  A bipartisan compromise amendment adopted by the Judiciary Committee and passed in the Senate will establish the ratio at 18:1.

“The racial imbalance that has resulted from the cocaine sentencing disparity disparages the Constitution’s promise of equal treatment for all Americans,” said Leahy.  “After more than 20 years, the Senate has finally acted on legislation to correct the crack-powder disparity and the harm to public confidence in our justice system it created.  Although this bill is not perfect and it is not the bill we introduced in order to correct these inequalities, I believe the Fair Sentencing Act moves us one step closer to reaching the important goal of equal justice for all.  I urge the House to act quickly so that the President can sign this historic legislation into law.” 

Under current law, possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggers a mandatory minimum five-year prison sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggers the same sentence.  The so-called 100:1 sentencing disparity has been in place since 1986.  The dramatically higher penalties for crack have disproportionately affected the African American community.  While only 25 percent of crack users are African American, they constituted 81 percent of those convicted for crack offenses in 2007. 

The Fair Sentencing Act will also refocus federal resources toward large scale, violent traffickers and increase penalties for the worst drug offenders.  The bill is cosponsored by Crime and Drugs Subcommittee Chairman Arlen Specter (D-Pa.); Senators Russ Feingold (D-Wis.), Ben Cardin (D-Md.), Sheldon Whitehouse (D-R.I.), Ted Kaufman (D-Del.), and Al Franken (D-Minn.), members of the Senate Judiciary Committee; and Senators John Kerry (D-Mass.), Chris Dodd (D-Conn.), Carl Levin (D-Mich.), Sherrod Brown (D-Ohio), Bernie Sanders (I-Vt.), Roland Burris (D-Ill.), Tom Harkin (D-Iowa), and Jim Webb (D-Va.).

The bill will now be sent to the House of Representatives for consideration.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Passage Of The “Fair Sentencing Act Of 2009”
March 17, 2010

Today, I join Senators from both sides of the aisle to pass the historic and bipartisan Fair Sentencing Act. 

The racial imbalance that has resulted from the cocaine sentencing disparity disparages the Constitution’s promise of equal treatment for all Americans.  Although this bill is not perfect, its passage marks a significant step forward in making our drug laws fairer and more rational. Despite my belief that parity was the better policy, I have joined with Senator Durbin and support the progress represented by his compromise with Senator Sessions.  It reduces the disparities that leave some in jail for years while their more privileged counterparts go home after relatively brief sentences.  Today, that compromise means we are one step closer to fixing this decades-old injustice.  I commend Senators Durbin, Sessions, Graham, Coburn, and Hatch for negotiating the compromise that allowed this important piece of legislation to pass the Senate Judiciary Committee by a unanimous vote.  As Chairman, I was able to report on behalf of the Senate Judiciary Committee the first measure we have ever been able to approve that begins to undo the unjust sentencing disparity.

For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats “crack” offenders one hundred times more harshly than other cocaine offenders, without a legitimate basis for the difference.  We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different and unjust.  This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.

These disproportionate punishments have had a disparate impact on minority communities.  This is unjust and runs contrary to our fundamental principles of equal justice under law.  According to the latest statistics of the independent and nonpartisan United States Sentencing Commission, African Americans continue to make up the large majority of Federal crack cocaine convictions, accounting for 80 percent of all Federal crack cocaine offenses, while they represent a much smaller fraction of those who use the drug.  In a letter to our Committee, John Payton, the President of the NAACP Legal Defense Fund, called this disparity “one of the most notorious symbols of racial discrimination in the modern criminal justice system.”

These disparate penalties, which Congress created in the mid-1980s, have failed to address basic concerns.  The primary goal underlying the crack sentence structure was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods.  But the law has not been used to go after the most serious offenders.  In fact, just the opposite has happened.  The Sentencing Commission has reported for many years that more than half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

The Fair Sentencing Act of 2009 returns the focus of Federal cocaine sentencing policy to drug kingpins, rather than street level dealers, and eliminates the mandatory minimum sentence for possession of crack cocaine.  The five-year mandatory minimum sentence penalty for simple possession of crack is unique under Federal law.  There is no other mandatory minimum for mere simple possession of a commonly abused drug. 

This bill does not legalize drugs, nor does it eliminate harsh sentences.  In fact, this bill toughens some penalties.  It increase fines for major drug traffickers and provides sentencing enhancements for acts of violence committed during the course of a drug trafficking offense.  But this bill also helps to ensure that our system will no longer affect many minority and urban communities more harshly than offenders who use drugs in the suburbs and corporate offices. That inequality has reduced trust in law enforcement and cooperation with police, which makes us all less safe. 

American justice is about fairness for each individual.  To have faith in our system, Americans must have confidence that the laws of this country, including our drug laws, are fair and administered fairly.  We must be smarter in our Federal drug policy.  Law enforcement has been and continues to be a central part of our efforts against illegal drugs, but we must also find meaningful, community-based solutions which enable people to feel they are being treated fairly.  I look forward to working with Chief Kerlikowske, the Director of the President’s Office of National Drug Control Policy, to develop and deploy such a strategy. 

Since 1995, the United States Sentencing Commission has issued report after report calling on Congress to address this unfair sentencing disparity. We would not be making the progress we are today without the leadership of the United States Sentencing Commission.  I thank them and their Chairman, Judge William Sessions. 

I thank the United States Department of Justice for the testimony of Assistant Attorney General Lanny Breuer at our hearing on this matter last year.  Attorney General Eric Holder also reminded us that “the stakes are simply too high to let reform in this area wait any longer.” I agree.  It is time for the Senate and House to act.

After more than 20 years, the Senate has finally acted on legislation to correct the crack-powder disparity and the harm to public confidence in our justice system it created.  Although this bill is not perfect and it is not the bill we introduced in order to correct these inequalities, I believe the Fair Sentencing Act moves us one step closer to reaching the important goal of equal justice for all.  I urge the House to act quickly so that the President can sign this historic legislation into law. 

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