Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Federal Crack Cocaine Sentencing Policy
December 11, 2007

 

Nothing is more fundamental to our system of justice than the tenet inscribed in Vermont marble on the Supreme Court building, that all people should receive “equal justice under law.”  For more than 20 years, however, our Nation has tolerated a Federal cocaine sentencing policy that treats crack offenders more harshly than cocaine offenders.  This policy has unacceptably had a disparate impact on people of color and the poor – without any empirical justification. 

 

Today, the U.S. Sentencing Commission took yet another important step in addressing the wide disparity in our Federal cocaine sentencing laws.  By voting to change our Sentencing Guidelines to reduce the sentences of crack offenders currently incarcerated, the Commission took a moderate but significant step to reduce unwarranted sentencing disparities in Federal crack and powder cocaine laws.  Their unanimous vote is 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 brings our Nation one step closer to a drug policy that is fair and equal for all Americans.

 

The good news does not stop there.  Just yesterday, in the landmark ruling of Kimbrough v. United States, the Supreme Court of the United States expanded the power of our Federal trial courts to address the unfair disparity in our Federal sentencing laws between crack and powder cocaine.  By a vote of seven to two, the Court ruled that Federal judges may, in their discretion, consider this disparity and depart from a Guideline sentence where the punishment is “greater than necessary” to serve Congress’s objectives. 

 

Under current law, an offender apprehended with five grams of crack cocaine faces the same five year mandatory minimum sentence as an offender with 500 grams of powder cocaine.  That means existing law gives the same sentence to a drug trafficker dealing crack cocaine as it would to one dealing 100 times more powder cocaine.  

 

This year, the Sentencing Commission has taken historic actions to address the unfairness and injustice of this disparity.  The Commission held hearings and, after extensive study of this issue, reiterated its long-held position that crack cocaine penalties continue to disproportionately impact minorities and undermine various congressional objectives set forth in the Sentencing Reform Act.  Next, the Commission attempted to correct this disparity and provide some relief to some crack cocaine offenders by recommending that all crack penalties be lowered by two base offense levels.  Last month, Congress allowed this new Commission amendment – the so-called “Crack Minus 2” Amendment – to be enacted in the Sentencing Guidelines.

 

Today, the Sentencing Commission has taken yet another positive step. 

 

This Amendment is consistent with Congress’s intent in creating a Sentencing Guideline system.  In its report to Congress, the Commission said that the Crack Minus 2 Amendment was needed to address its long-held finding that “the 100-to-1 drug quantity ratio (for crack cocaine) significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.”  I agree.  I join the chorus of our esteemed Federal judges, articulated in the Judicial Commission’s testimony before the Sentencing Commission on this amendment, that fundamental fairness dictates that this amendment “equally applies to offenders who were sentenced in the past as well as offenders [who] will be sentenced in the future.”

 

Fundamental fairness dictates that we undo past errors to build public confidence in the rule of law.  Americans must have faith and confidence that our drug laws are fair and proportional, and a rule correcting a past injustice should be applied retroactively to restore that public confidence.  The public’s faith is even more critical in crack cocaine cases where 85 percent of the defendants are African Americans – a fact which only enhances the public perception that harsh and punitive sentences are imposed disproportionately on persons of color.

 

Allowing judges to reconsider the sentences for crack offenders will not threaten public safety.  As the Judicial Conference noted in its testimony before the Sentencing Commission, “no offender would be eligible for release without judicial approval.”  This amendment allows judges the discretion to give a sentence outside of the Federal Guidelines, but does not mandate that such a sentence must be imposed.  As Chairman of the Senate Judiciary Committee, I have some experience with the people who serve our Nation in lifetime positions on the Federal bench.  Unlike those who argue that the sky is falling, I have every confidence in the ability of our Federal judges to use this power sparingly and to provide a proper check when necessary to prevent the release of dangerous offenders back into our communities and neighborhoods.

 

Most importantly, while I abhor the damage done by drug abuse, I also abhor that the penalties for those in the inner city are different than for those in affluent society.  For 21 years, far too many African Americans and low-level drug offenders were subject to unfair and overly punitive Federal crack cocaine sentencing laws.  With the Commission’s amendment to reduce this disparity, we begin the process of healing wounds which have long shaken the public’s confidence in our Federal drug policy.  Applying this fix retroactively is only fair and just. 

The Administration’s failure to support retroactivity of even the slightest modification of crack penalties is both a surprise and a deep disappointment.  I recall that two days before taking office, President Bush said that we should address this problem “by making sure the powder cocaine and the crack cocaine sentences are the same.”  He also said, “I don’t believe we ought to be discriminatory.”

Yet his Justice Department has strongly opposed retroactive application of this crack cocaine reform amendment, even though failure to act would once again disparately impact African Americans, since an estimated 85 percent of those who would benefit from the policy are African Americans.  The Justice Department’s position would also erode public confidence that our drug laws are free from bias since previous drug reform amendments more likely to benefit whites and Hispanics were made retroactive.

Thankfully, the Sentencing Commission accepted the Administration’s view.  Their decision today was unanimous.  I hope that the Attorney General will take notice and move to support drug laws that treat all Americans equally. 

While fundamental change will require Congressional action, I salute the Sentencing Commission for its leadership on this issue.  I urge my colleagues to support the Commission’s decision and support additional changes to our laws to further reduce the disparity in our Federal cocaine sentencing laws.  It is long past time for us to rectify this problem.

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