S. 1789 is expected to be considered on the floor of the House on Wednesday, July 28, 2010, under a motion to suspend the rules, requiring a two-thirds vote for passage.  The legislation was introduced by Sen. Dick Durbin (D-IL) on October 15, 2009.  The Senate passed S. 1789 with an amendment by unanimous consent on March 17, 2010.  The House Committee on the Judiciary took no official action on S. 1789.

S. 1789 would amend the Controlled Substances Act and the Controlled Substances Import and Export Act to increase the amount of a controlled substance or mixture containing crack cocaine required for the imposition of mandatory minimum prison terms for trafficking; and increase monetary penalties for drug trafficking and for the importation and exportation of controlled substances.

The bill would eliminate the five-year mandatory minimum prison term for the first-time possession of crack cocaine, and make it a misdemeanor.

The bill would also do the following:

• Reduce the ratio between crack and powder cocaine from 100:1 to 18:1;
• Increase fines for convicted major drug traffickers;
• Direct the U.S. Sentencing Commission to increase penalties for individuals found to have engaged in aggravated conduct such as bribery of a law enforcement officer in connection with a drug offense;
• Direct the U.S. Sentencing Commission to allow a modest sentence reduction in limited cases, including where a person was motivated by an intimate or familial relationship or by threats or fear when the defendant was otherwise unlikely to commit such an offense;
• Directs the United States Sentencing Commission to promulgate guidelines, policy statements, or amendments required by this Act as soon as practicable, but not later than 90 days after the enactment of this Act; and
• Study and report to Congress on the impact of changes in sentencing law under this Act.

S. 1789 would also require the Comptroller General of the U.S. to submit a report to Congress analyzing the effectiveness of drug court programs receiving funds under the drug court program of the Omnibus Crime Control and Safe Streets Act of 1968.  The report would include information assessing the efforts of the DoJ to collect data on the federally funded drug courts; addressing the effect of drug courts on recidivism and substance abuse rates; addressing any cost benefit resulting from the use of drug courts as alternatives to incarceration; assessing the response of the DoJ to previous recommendations made by the Comptroller General regarding drug court programs; and make recommendations concerning the performance, impact, and cost-effectiveness of federally funded drug court programs.

In 1986, Congress adopted legislation to impose lengthy prison sentences for low-level crack cocaine offenders.  The proposed penalties created a 100:1 sentencing disparity between crack and powder cocaine offenses.  According to analyses by the U.S. Sentencing Commission, the disparity between crack and powder cocaine sentences has had a disproportionately negative impact on African Americans.  African Americans use crack at about the same rate as whites but nearly 80 percent of federal crack defendants in 2009 were African American, and crack sentences were, on average, over two years longer than sentences for powder cocaine offenses. 

The National District Attorneys Association, Prison Fellowship, Federal Law Enforcement Officers Association, the International Union of Police Associations, and numerous former federal prosecutors and judges support this reform.

The Congressional Budget Office was unavailable as of press time.