Statement At Hearing On “Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity”

Today marks the 100th day of President Obama’s administration, and already we have seen a response to the President’s call for change.  The Judiciary Committee today considers necessary changes and reforms in our Federal sentencing laws.

Our hearing will examine the unequal and unfair penalties for crack and powder cocaine offenses.  We will consider how best to make our drug laws more fair, more rational, and more consistent with the core values of justice.  The Committee has examined this issue before, in hearings in 2002 and, more recently, last year.

I thank Senator Durbin for holding this hearing in the Crime and Drugs Subcommittee.  We must do all we can to restore public confidence in our criminal justice system, and I hope this hearing can be a positive step towards reaching that goal. 

For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats “crack” offenders one hundred times more harshly than cocaine offenders without any 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 the resulting impact on minorities has been particularly unjust.     

Under this flawed policy, a first-time offender caught selling five grams of powder cocaine typically receives a six month sentence, and would often be eligible for probation.  That same first-time offender selling the same amount of crack faces a mandatory five year prison sentence, with little or no possibility of leniency.  This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.  

Even more disturbingly, this policy has had a significantly disparate impact on racial and ethnic minorities.  According to the latest statistics of the United States Sentencing Commission, African-American offenders continue to make up the majority of Federal crack cocaine trafficking offenders, accounting for 80 percent of all Federal crack cocaine offenses, compared to white offenders who account for just 10 percent.  These statistics are startling.  It is no wonder this policy has sparked a nationwide debate about racial bias and undermined our citizens’ confidence in the justice system.   

These penalties, which Congress created in the mid-1980s, have failed to address basic concerns.  The primary goal was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods.  Many people were also concerned about the impact of the crack epidemic on young people in urban areas.  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 consistently reported for many years that over half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

We revisit this issue at a time when attitudes are changing in our Nation about sentencing policy.  The Sentencing Commission’s 2008 report to Congress made clear that the reasons that led Congress to adopt these penalties were flawed, and have not withstood the test of time.  Many recent reports and studies have concluded that the 100 to one ratio now in the law is scientifically flawed, and supported by no empirical evidence at all.  These findings have been a driving force behind recent actions by the Sentencing Commission, and underlie the courts’ efforts to begin fixing these unjust drug laws. 

The Supreme Court of the United States ruled in 2007 that the Federal courts have the power to address the unfair crack-powder disparity in Federal sentencing laws in certain cases. Two years ago, the Sentencing Commission voted to change the guidelines and reduce the sentences for crack offenders in order to begin righting this wrong in the context of the law.  Unfortunately, the past administration did not welcome these reforms.

In the last Congress, then-Attorney General Michael Mukasey testified before the House Judiciary Committee suggesting that thousands of violent gang members and dangerous drug offenders will be instantaneously and automatically set free in communities across the country.  This was an effort to use fear and ignorance to oppose a reform supported by many Republicans and Democrats.  Of course, no one can be released without a hearing before a Federal judge, who must evaluate a defendant’s criminal history and propensity for violence before approving any release.  And, as we will hear from Sentencing Commission Acting Chair, Judge Ricardo Hinojosa, nothing of the sort has happened.  In fact, allowing those unfairly sentenced to be released has not led to a spike in crime, as predicted by former-Attorney General Mukasey, and the process, as supervised by the Judiciary, is proceeding smoothly and efficiently.

These modest changes have been welcomed by Federal judges across the country, including an outstanding Federal judge who will testify today – the Honorable Reggie Walton.  The changes are also consistent with the goals of the Sentencing Reform Act, which requires all judges to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” before imposing any sentence.  These reforms have started to bring us closer to a more rational drug policy.  These changes, however, have done nothing to address the core problem, which is the codification of the 100 to one ratio in Federal law. 

We have also heard bipartisan calls for cocaine sentencing reform in the Senate.  In the Judiciary Committee, Senators Hatch, Sessions, and Cornyn have supported reducing the current 100 to one sentencing disparity to a 20 to one ratio.  Senator Hatch, who has called the current ratio “an unjustifiable disparity,” recognizes that because “crack and powder cocaine are pharmacologically the same drug” our sentencing laws do “not warrant such an extreme disparity.”  Senator Sessions, a former Federal prosecutor, has said “The 100-to-1 disparity in sentencing between crack cocaine and powder cocaine is not justifiable.  Our experience with the guidelines has convinced me that these changes will make the criminal justice system more effective and fair.  It’s time to act.”  Senator Cornyn, a former state Supreme Court judge and Attorney General, has said “laws should be firm but fair. We not only need just laws, but they need the appearance and reality of fairness.” 

I am encouraged by these bipartisan calls for reform.  It sends a strong message, from Senators on both sides of the aisle, that the 100 to one sentencing disparity between crack and powder cocaine is unjust, the data supporting it was unsound, and our drug laws need correction. 

More than a year before taking office, in September 2007, then-Senator Obama said:

If you are convicted of a crime involving drugs, of course you should be punished.  But let’s not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference is where the people are using them or who is using them.

I agree.  For far too long, the Federal crack-powder sentencing laws have created an injustice in our nation.  For more than 20 years this policy has contributed to the swelling of our prison population, disproportionately impacted African and Hispanic Americans, and wasted limited federal resources on low-level street dealers rather than on the worst offenders – the drug kingpins.

We must be smarter in our Federal drug sentencing policy.  Of course, law enforcement has been and continues to be central to combating the scourge of drugs, but we must also find meaningful, community-based solutions that address the underlying causes of these problems.  Solving these problems as they arise is essential, but being able to prevent them is an important goal that would not only save time and effort, but large amounts of money in a time when budgets are tight.

American justice is about fairness and equality 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 justly.  I hope this hearing will move us one step closer to reaching that goal.

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