Senate approves Senator Durbin’s Fair Sentencing Act

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  Bipartisan Compromise Reduces Crack-Powder Sentencing Disparity to 18:1                        


CHICAGO, IL – (UPDATE) A bipartisan bill to curtail the sentencing disparity between crack and powder cocaine passed the United States Senate by unanimous consent last night. The Fair Sentencing Act, introduced by U.S. Senator Dick Durbin (D-IL), was amended by the Judiciary Committee and will reduce the current 100:1 sentencing disparity to 18:1.

“Drug use is a serious problem in America and we need tough legislation to combat it,” Durbin said. “But in addition to being tough, our drug laws must be smart and fair. Sadly our crack cocaine laws are not. I strongly support eliminating the crack-powder disparity and establishing the same sentences for crack and powder cocaine. But this is an issue that requires a bipartisan solution. Today’s historic agreement will make a significant difference in the lives of many while still keeping our drug laws tough.”

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 ratio has been in place since 1986. The Fair Sentencing Act as introduced would have completely eliminated the disparity, treating crack and powder cocaine equally.

Durbin negotiated an agreement last week with Senators Lindsey Graham (R-SC), Jeff Sessions (R-AL) and Orrin Hatch (R-UT) to achieve a unanimous vote of 19-0 in the Judiciary committee.  The bipartisan compromise would establish an 18:1 ratio for crack-powder sentencing meaning 28 grams of crack would trigger the same mandatory minimum sentence as 500 grams of powder cocaine. 

The compromise significantly increases fines for drug traffickers and mandates that the U.S. Sentencing Commission significantly increase enhancements for a number of aggravating factors. This tough new language would apply to all drug offenses and not just those involving crack or powder cocaine.

The legislation will now be sent to the United States House of Representatives.

Senator Dick Durbin’s Floor Statement on the Fair Sentencing Act, as prepared for delivery

March 18, 2010

Mr. President, I rise to speak about the Fair Sentencing Act, bipartisan legislation which I understand has been cleared by both sides.  At the conclusion of my remarks, I will yield to Senator Sessions.  At the conclusion of his remarks, I will ask unanimous consent for the Senate to take up and pass this legislation.

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 and our society, and tough anti-cocaine legislation is needed.

But the law also must be fair.  And current law is based on an unjustified distinction between crack and powder cocaine.  Simply possessing five grams of crack—the equivalent of five packets of sugar —carries the same sentence as selling 500 grams of powder cocaine – or 500 packets of sugar.  This is known as the 100-to-1 disparity. 

The crack-powder disparity disproportionately affects African Americans.  While African Americans are approximately 30 percent of crack users, they make up more than 80 percent of those convicted of federal crack offenses. 

Law enforcement experts say that the crack-powder disparity undermines trust in the criminal justice system, especially in minority communities.  In a hearing that I held last year, Asa Hutchinson, who was the head of Drug Enforcement Administration during the Bush Administration, testified that, quote, “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 the crack-powder disparity.  According to the Sentencing Commission, this, quote, “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.” 

The Fair Sentencing Act would reduce the current 100-to-1 disparity to 18-to-1.

The Fair Sentencing Act also would eliminate the 5-year mandatory minimum sentence for simple possession of crack cocaine.  This is the only mandatory minimum for simple possession of a drug by a first-time offender.

Mr. President, there is a bipartisan consensus that current cocaine sentencing law is unjust, and now Democrats and Republicans have come together to address it in a bipartisan way.

Just last week, the Senate Judiciary Committee reported the Fair Sentencing Act by a unanimous 19-0 vote.  The bill is cosponsored by 16 of the 19 members of the Senate Judiciary Committee.

This is the first time that 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, quote: 

“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 I can be signed into law.”

And the Fair Sentencing Act is supported by law enforcement groups, including the National District Attorneys Association, which represents 40,000 state and local prosecutors; the National Association of Police Organizations, which represents 240,000 law enforcement officers; and the International Union of Police Associations, which represents more than 100,000 law enforcement officers.

I want to thank my colleagues on the Senate Judiciary Committee for supporting the Fair Sentencing Act.  I especially want to thank the following members who have worked tirelessly for the last year to reach this bipartisan agreement:  Judiciary Committee Chairman Pat Leahy; Judiciary Committee Ranking Member Jeff Sessions; and Senators Lindsey Graham, Tom Coburn, and Orrin Hatch.

Mr. President, 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 everyone agrees is unjust.  

I wish that this bill went further, but it 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 urge my colleagues to support the Fair Sentencing Act.

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