Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Hearing On “Federal Cocaine Sentencing Laws:
Reforming The 100:1 Crack Powder
Disparity”
February 12, 2008
Today, we examine the differing
penalties for crack and powder cocaine offenses and consider how best to
make our drug laws more rational, more fair, and more consistent with
our basic values. This Committee last held a hearing on reforming these
drug penalties in 2002, when I previously served as Chairman.
I thank Senator Biden for holding this
important hearing before the Crime and Drugs Subcommittee. It can be
another step forward in our efforts to restore public confidence in our
criminal justice system.
For more than 20 years, our Nation has
had a federal cocaine sentencing policy that treats “crack” offenders
one hundred times more harshly than cocaine offenders. We know that
there is little or no pharmacological difference between crack and
powder cocaine, yet the resulting punishments for these offenses is
radically different—and some have observed racially different in that it
is different populations that are largely affected.
A first-time offender caught selling
five grams of powder cocaine would typically receive a six month
sentence, and often be eligible for probation. That same offender
selling the same amount of crack would face a mandatory five year prison
sentence, with no possibility of leniency. This policy has needlessly
swelled our prisons and drained precious Federal resources. Even more
disturbing, this policy has had a disparate impact on racial and ethnic
minorities, who make up 96 percent of those affected. It is no wonder
this policy has sparked a nationwide debate about racial bias in our
justice system and contributed to the difficulties in convincing people
to cooperate as witnesses in crack cases.
The penalties Congress created in the
1980s have proven poorly suited to the concerns we sought to address.
The goal of these policies was to punish severely those who were
bringing crack into our neighborhoods, the major traffickers and drug
kingpins. Many people were concerned about the effects of the crack
epidemic on our young people in urban areas. Instead, the U.S.
Sentencing Commission reports that over half of Federal crack cocaine
offenders are street dealers or users, not the major traffickers
Congress meant to target in the 1986 Anti-Drug Abuse Act.
We revisit this issue at a time when
attitudes are changing in our Nation about sentencing policy. I thank
the U.S. Sentencing Commission for its contributions to the debate and
for its careful and judicious work. Its latest report to Congress makes
clear that many of the principles that guided Congress when these
sentences were adopted were based on reasoning that has not withstood
the test of time and is not supported by the empirical evidence.
These findings have been a driving
force behind recent actions by the Sentencing Commission and underlie
the efforts in our courts to fix these unjust drug laws. Last year, the
Sentencing Commission voted to change the Sentencing Guidelines, reduce
the sentences of crack offenders and bring a measure of fairness to the
process. And, just two months ago, this bipartisan, independent agency
voted unanimously to apply this change retroactively in fairness. The
United States Supreme Court recently ruled, as well, that our federal
courts have power to address the unfair disparity in Federal sentencing
laws between crack and powder cocaine.
I welcome these important changes.
They are consistent with the goals of the Sentencing Reform Act,
including “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct,” and they bring our Nation closer to a more rational drug
policy. I also join in welcoming the President’s friend and his
appointment to chair the Sentencing Commission, the Honorable Ricardo
Hinojosa.
Two days before taking office, more than
seven years ago, President Bush said that he favored making sure that
the sentences for powder and crack cocaine were the same. Many
respected members of our Federal judiciary, those appointed by
Republican Presidents and Democratic Presidents, have raised concerns
and urged that action to promote greater fairness. We are fortunate to
have with us today another of this Nation’s outstanding judges, the
Honorable Reggie Walton.
Most disappointing is this
administration’s failure to support even modest reforms of unjust,
overreaching mandatory drug penalties. Last week the new Attorney
General testified before the House Judiciary Committee in ways designed
to raise fear and create the false impression that 1,600 violent gang
members and dangerous drug offenders will be instantaneously and
automatically set free to prey on hapless communities. As the Attorney
General, himself a former Federal judge, should have known, and as he
had to concede when questioned before that Committee, no one can be
released without a hearing before a Federal judge who is obligated to
evaluate each case and to consider factors such as the criminal history
and violence. And the Justice Department participates in those hearings.
Hilary Shelton, the respected Director of
the Washington Bureau of the NAACP, reacted to the Attorney General’s
testimony by noting it “is not only inaccurate and disingenuous,
but it is alarmist and plays on the worst fears and stereotypes many
Americans had of crack cocaine users in the 1980s.” I hope we will not
see a repeat of that type of testimony here today from the
representative of the administration. Having been corrected, it should
not be repeated. Having been shown the divisive nature of its impact,
it should not be continued.
Outside of Washington, D.C., Justice
Department lawyers who are prosecutors in the field have supported
reducing sentences in particular cases. That is what American justice
is about, fairness to each individual. Americans must have faith
and confidence that our drug laws are fair and administered fairly. I
hope this hearing will move us one step closer to reaching that goal.
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