Crack-Cocaine Equitable Sentencing Act of 2007

Madam Speaker, I rise today to echo the country's growing insistence that crack cocaine sentencing be reformed and that a sensible, fair policy replace it. I introduce the December 11 Washington Post editorial, ``Sense in Sentencing,'' and the December 12 New York Times Post editorial, ``Justice in Sentencing,'' to highlight how from all branches of government momentum is indisputably picking up in favor of reform. This week, a decisive Supreme Court granted judges greater discretion in sentencing, and the U.S. Sentencing Commission decided to retroactively apply the recent reduction of its sentencing recommendations--both a nod to the prevailing outrage concerning excessively stiff crack cocaine penalties.

The Commission and the Court have done all they can. Now, it's our turn. The impetus falls on Congress to end the sentencing inequity that slaps the same 5-year sentence for possessing 500 grams of powder as it does for 5 grams of crack. That's a 100-to-1 disparity--and an average difference of 40 months in jail time--for two drugs experts say have no significant differences. Well, here's one significant difference: Over 80 percent of sentenced crack offenders are Black. These arbitrarily lopsided mandatory minimums have fueled the disproportionate rate and length of incarceration of Black men and swelled our prisons to a world-leading 2.2 million.

The door to criminal and racial justice has been opened. It's now up to this Congress to step through it. Let's rally around The Crack- Cocaine Equitable Sentencing Act, H.R. 460, and correct the sentencing of uneven punishments for nearly identical offenses.

Sense in Sentencing:The Supreme Court Gives Judges Some Leeway in Drug

Cases

For roughly two decades, federal trial judges have chafed

under the constraints of federal sentencing guidelines and

mandatory minimums that often forced them to hand down

inordinately long sentences. Those injustices have been most

pronounced in drug cases, particularly those involving crack

cocaine. In two opinions released yesterday, the Supreme

Court handed back some flexibility to judges and increased

the chances that justice--not just retribution--will be

exacted in future cases.

By 7-2 votes, the justices concluded that trial judges have

the leeway to impose more lenient sentences in drug cases

than those called for by the federal sentencing guidelines.

To pass legal muster, the sentences must be ``reasonable''

and ``sufficient, but not greater than necessary'' to

``promote respect for the law, provide just punishment for

the offense'' and ``protect the public from further crimes of

the defendant.''

One decision yesterday concerned Derrick Kimbrough, who was

arrested in Norfolk in 2004 with 92 grams of powder cocaine,

56 grams of crack and a gun. He faced 19 to 22 years behind

bars, in large part because of the high penalties for crack

offenses; he would have had to possess 5,000 grams of powder

cocaine to get the same sentence. After considering Mr.

Kimbrough's record of steady employment and his military

service during the Persian Gulf War, the trial judge

concluded that Mr. Kimbrough should serve roughly 15 years.

In the second case, Brian Gall, along with seven others,

was indicted in Iowa in 2004 for conspiracy to sell ecstasy,

cocaine and marijuana. The conspiracy, according to the

indictment, ran from 1996 to 2002. Mr. Gall, a former drug

addict, sold ecstasy for roughly 7 months in 2000 but stopped

using drugs 1 month after he began selling them and pulled

out of the drug trade a few months later. He subsequently

earned a college degree and worked in construction before

starting his own company. When he was indicted, Mr. Gall had

been drug-free and law-abiding for roughly 4 years. The

presiding judge determined that the 30- to 37-month sentence

called for by the guidelines was unjust and

counterproductive. He sentenced Mr. Gall to 36 months

probation.

The justices rightly rebuffed the government's challenge to

the reduced sentences. They recognized the wisdom of allowing

those closest to the ground--the trial judges--to assess how

best to exact justice in individual cases, even while

endorsing the guidelines as a means to avert wide disparity

in sentences nationwide.

The evolution of crack sentencing could continue today

when, perhaps coincidentally, the U.S. Sentencing Commission

is scheduled to vote on whether to make retroactive the more

lenient penalties it instituted earlier this year. The

commission should vote yes and take yet another step toward

bringing sanity to the crack laws.

Justice in Sentencing

With a pair of 7-2 rulings this week, the Supreme Court

struck a blow for basic fairness and judicial independence.

The court restored a vital measure of discretion to federal

trial judges to impose sentences based on their assessment of

a particular crime and defendant rather than being forced

to adhere to overarching guidelines.

Beyond that, one of the rulings highlighted the

longstanding injustice of federal guidelines and statutes

imposing much longer sentences for offenses involving crack

cocaine, which is most often found in impoverished

communities, than for offenses involving the chemically

identical powdered cocaine, which is popular among more

affluent users.

The rulings provide fresh impetus for Congress to rewrite

the grotesquely unfair crack cocaine laws on which the

federal sentencing guidelines are partly based. Those laws

are a relic of the 1980s, when it was widely but wrongly

believed that the crack form of cocaine was more dangerous

than the powder form. We are pleased that the United States

Sentencing Commission recently called for reducing sentences

for some categories of offenders and has now called for

applying the change retroactively. The real work still lies

with Congress, which needs to rewrite the law.

Building on a 2005 decision that held the sentencing

guidelines to be advisory rather than mandatory, the new

rulings affirm that the guidelines are but one factor to be

considered by a trial judge in arriving at an individual

sentence, and that an appeals court must have a strong reason

to overturn that sentence.

In one of the cases, the justices supported a district

judge in Virginia who gave a military veteran convicted of

crack dealing a sentence of 15 years, rather than the 19-22

years that the guidelines recommended. The ruling described

the federal crack law as ``disproportionate and unjust.''

Writing for the majority, Justice Ruth Bader Ginsburg stated

that it would not be an abuse of a discretion for a trial

judge to conclude that the crack/powder disparity resulted in

a longer-than-necessary sentence for a particular defendant.

In the other case, the court found that a trial judge was

within his rights to impose a light sentence on a man briefly

involved in selling the drug Ecstasy while in college. In

reviewing sentences, wrote Justice John Paul Stevens for the

majority, appellate courts must apply a deferential abuse-of-

discretion standard to trial judges' decisions.

There is a danger that the new procedures outlined by the

court could end up making federal sentences unfairly

disparate across the country, undermining one of the

important objectives of having sentencing guidelines in the

first place. If that happens, Congress will have to address

the problem. For

the moment, the Supreme Court's latest adjustment in

sentencing strikes us as a positive development, one with

much potential for advancing justice.

Madam Speaker, criminal justice issues continue to plague our communities to the point that they threaten our national security. In this Congress we should make a commitment to address the issue of illegal guns distribution, recidivism, crack-cocaine sentencing disparities and systemic disenfranchisement of ex-offenders. We owe this to the many, primarily minority, families that are destroyed every year because of these devastating social ills that can be prevented.

First, the use of illegal guns is a serious problem across America. Everyday illegal guns are used to commit violent crimes, particularly in urban communities. The loss of life as a result of use of an illegal gun has ruined families and communities. We can no longer stand and watch as criminals illegally obtaining guns and use them to cause havoc. I serve as co-chair on the Congressional Task Force on Illegal Guns. Our focus is to address the Tiahrt Amendments, a series of ``riders'' in recent Commerce, Justice, and Science appropriation bills that limits local law enforcement access to data on gun tracing. These amendments which have become increasingly restrictive since Fiscal Year 2003 deny local law enforcement agencies the ability to identify illegal gun traffickers.

National security encompasses addressing issues that lead to poverty and hopelessness, for these feelings of despair threaten the safety of all Americans. Preventing individuals who have served their time in jail from obtaining employment, education and health care only leads to the unfortunate alternative; resort to careers in crime. Almost all states have in place a system of expunging records or providing a meaningful chance for ex-offenders to rebuild their life. The federal government has no such system. Therefore, I introduced H.R. 623, the Second Chance Act of 2007, which provides that federal ex-offenders have the same second chance as many state offenders. Federal first time ex-offenders who prove that they have fulfilled all requirements of their sentence, parole and supervised released have been completed; they have obtained a high school or GED equivalency degrees; they have remained free of drug and alcohol dependency; and they have completed a full year of community service can qualify for re-entry into society and have their records expunged.

In addition, the rate at which blacks and whites are sent to prison for drug offenses continues to be grossly disparate and raises a clear warning flag concerning the fairness and equity of drug law enforcement across the country. We need to continue to build momentum to eliminate the sentencing disparity that keeps defendants convicted of trafficking crack in jail far longer than those convicted for powdered cocaine. Under the existing law, a defendant convicted of trafficking five grams of crack cocaine receives the same five-year mandatory penalty as a defendant convicted of trafficking 500 grams of powder cocaine. In addition, a mandatory minimum penalty of five years is automatically imposed for possession of five grams of crack cocaine, whereas simple possession of any quantity of any other substance--including powder cocaine--is a misdemeanor offense punishable by a maximum of one year in prison. To begin to address this, I introduced H.R. 460, the Crack Cocaine Equitable Sentencing Act, moves us one step closer to eliminating the disparity in sentencing for crack and powder cocaine offenses.

Finally, deprivation of the right to vote is not an inherent or necessary aspect of criminal punishment nor does it promote the reintegration of offenders into lawful society. Nationally, an estimated 5.3 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions. This fundamental obstacle to participation in democratic life is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13 percent of Black men unable to vote. The impact on the political power of the minority communities is nothing short of devastating. I urge my colleagues on both sides of the aisle to support legislation that will help address the criminal justice issues that have been left unattended for far too long.