Fair Sentencing Act of 2010

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, those who fail to learn the lessons of history often pay a price. Unfortunately, the real cost usually falls on others. In the 1980s, America faced an epidemic created by a new, more potent form of cocaine known as crack. Its abuse spread through major cities and across the country at a stunning speed. Along with crack came guns and violence, which riddled many urban communities.

These communities cried out for help, and in 1986 Congress responded. We enacted tough penalties to protect these neighborhoods and bring an end to the scourge of crack cocaine. The penalties helped make America's communities safer.

Now Congress is considering legislation to wind down the fight against drug addiction and drug-related violence. Reducing the penalties for crack cocaine could expose our neighborhoods to the same violence and addiction that caused Congress to act in the first place.

Twenty-five years ago, crack was cheap, easily available, and highly profitable. According to the Drug Enforcement Agency, never before had any form of cocaine been available at such low prices and at such high purity. As a result, the number of Americans addicted to cocaine increased dramatically. Crack cocaine devastated many communities, especially inner-city communities. Black Americans who lived in these communities bore the brunt of the violence associated with the drug trade.

Today, crime rates, particularly for violent crimes, are at their lowest levels in more than 30 years, thanks in large part to the enactment of tough penalties for drug trafficking and other offenses. Crack and powder cocaine use has dropped by almost two-thirds in the past 20 years, from 5.8 million users in 1985 to 2.1 million users in 2007. According to the Bureau of Justice Statistics, crime victimization rates for black Americans have fallen by more than two- thirds since enactment of these tough Federal trafficking penalties. What's wrong with that? Why do we want to risk another surge of addiction and violence by reducing penalties?

Many argue that Federal prisons are filled with addicts convicted of simple possession of cocaine, but that's not true. The vast majority of Federal drug offenders are convicted for drug trafficking. In fiscal year 2009, the U.S. Sentencing Commission reports that there were 25,000 Federal drug trafficking convictions compared to fewer than 300 convictions for simple possession. So why do we want to make it more difficult to take drug traffickers off the streets and easier for them to peddle their lethal product?

Crack cocaine is associated with a greater degree of violence than most other drugs. Crack offenders are also more likely to have prior convictions and lengthier criminal histories than powder cocaine offenders. It is these aggravating factors, which are more common to crack cocaine trafficking, that contribute to higher Federal

crack sentences. These aggravating factors also render many Federal crack offenders ineligible for the so-called ``safety valve provision.'' The safety valve allows low-level offenders to be sentenced below the statutory mandatory penalties if they meet certain criteria, including no significant criminal history.

So why should we reduce the ratio for defendants who are more violent, more likely to have criminal records, and less likely to benefit from the safety valve provision that already provides a mechanism for reduced penalties? Why are we coddling some of the most dangerous drug traffickers in America?

Proponents of reducing or eliminating the crack/powder ratio argue that crack penalties impact a larger number of minorities than powder cocaine penalties. But the percentage of minority defendants for Federal crack and powder cocaine offenses is quite similar. Eighty-two percent of crack offenders and 90 percent of powder cocaine offenders are minorities, though black Americans comprise the majority of Federal crack cocaine offenders.

Crack and powder cocaine offenders are even sentenced with mandatory penalties at similar rates. In 2009, 80 percent of crack cocaine offenders and 77 percent of powder cocaine offenders were convicted under a mandatory penalty statute. The bill before us today, S. 1789, lowers the ratio for Federal crack cocaine offenses from 100-to-1 to 18-to-1. The bill also eliminates the mandatory penalties for crack cocaine possession, making it only a misdemeanor under Federal law. Why enact legislation that could endanger our children and bring violence back to our inner-city communities?

S. 1789 includes a requirement that the U.S. Sentencing Commission review and amend the applicable guidelines for crack offenses involving violence. However, since Federal judges are not required to adhere to the guidelines, there is no guarantee that any increased penalty will be imposed under this provision.

Last year, the House Judiciary Committee reported legislation, over Republican opposition, that would have eliminated entirely the ratio between crack and powder cocaine. Before that, the Obama administration relaxed enforcement of marijuana laws.

Mr. Speaker, the Democratic Party teeters on the edge of becoming the face of deficits, drugs, and job destruction. I cannot support legislation that might enable the violent and devastating crack cocaine epidemic of the past to become a clear and present danger.

Mr. Speaker, for these reasons, I urge my colleagues to oppose this legislation.

I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentleman from Wisconsin (Mr. Sensenbrenner), a former chairman of the Judiciary Committee.

Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Lungren), a senior and active member of the Judiciary Committee.

Mr. Speaker, I yield the gentleman an additional 1 minute.

Mr. Speaker, I yield 2 minutes to my friend and colleague from Texas (Mr. Paul).

(Mr. PAUL asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I have no further requests for time, and I reserve the balance of my time.

I yield myself the balance of my time.

Mr. Speaker, more than any other drug, the majority of crack defendants have prior criminal convictions. Despite claims by some, this is not an issue of one-time crack users being prosecuted for possession. This is about offenders who perpetually peddled this dangerous drug and should pay the price for their actions.

Despite the devastating impact crack cocaine has had on American communities, this bill reduces the penalties for crack cocaine. Why would we want to do that? We should not ignore the severity of crack addiction or ignore the differences between crack and powder cocaine trafficking. We should worry more about the victims than about the criminals.

Why would we want to reduce the penalties for crack cocaine trafficking and invite a return to a time when cocaine ravaged our communities, especially minority communities?

This bill sends the wrong message to drug dealers and those who traffic in destroying Americans' lives. It sends the message that Congress takes drug crimes less seriously than they did. The bill before us threatens to return America to the days when crack cocaine corroded the minds and bodies of our children, decimated a generation, and destroyed communities.

Mr. Speaker, I hope, sincerely, that those who support this legislation are prepared to take responsibility if cocaine trafficking increases, if our neighborhoods and communities once again become riddled with violence, and the lives of Americans are unnecessarily destroyed.

I hope that doesn't happen, but at least today we have gone on record as saying that there was a warning, and I can only hope that at some point in the future it will be heeded and responded to.

Mr. Speaker, I yield back the balance of my time.

I thank the gentleman for yielding.

Mr. Speaker, I rise in support of this legislation. It's called the Fair Sentencing Act. I'd like to rename it, though. I'd like to call it the Slightly Fairer Resentencing Act, because it really makes an attempt to correct a very, very serious problem in equal justice in our systems, and that effort I think we should all applaud. I would have much preferred H.R. 3245. I was an original cosponsor of that along with Congressman Scott, but I think this is a typical example of trying to fix a problem that we invite upon ourselves.

In economics, I adhere to the position that once you want to do some good in the economy, with all the best motivations, we do things and we create new problems and we have to go back. If you get two new problems for every intervention, then you're constantly writing laws.

Well, in social policy, I believe the same thing. It was trying to improve social policy with crack cocaine. There was no evidence on this. It was designed to help people, especially the minorities that were using crack cocaine, and they thought this was terrible, and it turned out that its law backfired. It actually hurt minorities, didn't help them. Here we are trying to correct this disparity, and it just, to me, confirms the fact that government management, whether it is the economy or social policy, doesn't make a whole lot of sense.

When this country decided it was very dangerous to drink alcohol and we had to stop it, back in those days, in the teens of the last century, they decided in order for the government to do this they had to amend the Constitution. Can you imagine anybody being concerned today by what we do here and say we have to amend the Constitution? Oh, no. We amended the Constitution. It was a bomb. It made alcohol much more dangerous. All the drug dealers sold the alcohol, and the alcohol was more concentrated and less pure. People died. People woke up and they repealed it.

This is what's going to have to happen someday. We need to repeal the war on drugs.

Mr. Speaker, I rise in reluctant support for S. 1789, the Fair Sentencing Act. My support is reluctant because S. 1789 is an uncomfortable mix of some provisions that reduce the harms of the federal war on drugs and other provisions that increase the harms of that disastrous and unconstitutional war. I am supporting this legislation because I am optimistic the legislation's overall effect will be positive.

Congress should be looking critically at how we can extricate America from the four decades of destruction that has ensued since President Richard Nixon announced the federal war on drugs in 1972. As a medical doctor with over 30 years' experience, I certainly recognize the dangers that can arise from drug abuse. However, experience shows that the federal drug war creates many additional dangers, while failing to reduce the problems associated with drug abuse. Like 14 years of federal alcohol prohibition in the 1920s and '30s, America's federal drug war has failed to

ameliorate the problems associated with drug use, while fostering violence and disrespect for individual rights.

While imperfect, I am optimistic that the Senate bill being considered today will reduce the harms of the federal drug war. I also hope consideration of this legislation will enliven interest in ending the federal war on drugs.

It is unfortunate that the House of Representatives is today considering this compromise legislation from the Senate instead of Representative Bobby Scott's H.R. 3245, the Fairness in Cocaine Sentencing Act. I am an original cosponsor of Representative Scott's bill, which passed the House of Representatives Committee on the Judiciary on July 29, 2009--one year ago tomorrow. Representative Scott's legislation is a short and simple bill that repeals a handful of clauses, sentences, and subparagraphs of federal drug laws to eliminate the 100 to one drug weight basis for sentencing disparity for crack cocaine violations in comparison to powder cocaine violations.

I will vote for the Senate legislation today because it rolls back some of the enhanced mandatory minimum sentences for crack cocaine that the federal government created in 1986. These enhanced mandatory minimum sentences have caused people convicted for small amounts of crack cocaine to serve much longer sentences in prison than people convicted for the same amount of powder cocaine.

While the Senate legislation reduces the drug weight basis for mandatory minimum sentencing disparity between crack cocaine and powder cocaine convictions for many individuals to only 18 to one compared to the total elimination of the disparity in Representative Scott's bill, the Senate bill does make a step in the right direction. The Senate bill eliminates entirely the mandatory minimum sentence for simple possession of crack cocaine and reduces significantly the mandatory minimum sentence for many people convicted of crack offenses by raising the number of grams of crack cocaine a person must possess for each mandatory minimum sentence level to apply. In addition, the Senate bill allows courts to show compassion for individuals with compelling cases for leniency by reducing sentences for some people convicted of controlled substances violations who a court determines meet requirements including having minimum knowledge of the illegal enterprise, receiving no monetary compensation from the illegal transaction, and being motivated by threats, fear, or an intimate or family relationship.

Unfortunately, while the Senate bill reduces some of the most extreme and unjust mandatory minimum sentences in the federal drug war, it also contains expansions of the federal drug war that I fear may yield results destructive to individual liberty and public safety. In particular, the Senate bill significantly increases maximum allowed monetary penalties for violations of federal restrictions on controlled substances and increases sentences for people convicted of controlled substances violations whose circumstances include certain aggravating factors.

Some people will argue that the increased penalties in the Senate legislation are desirable because they target people who are high up in the illegal drug trade or who took particularly disturbing actions, such as involving a minor in drug trafficking. But, the history of the federal drug war has shown that ramping up penalties always results in increasing rather than decreasing the harms arising from the federal drug war. Such enhanced penalties increase the risks of the drug trade thus causing illegal drug operations to be more ruthless and violent in their tactics. Enhanced penalties also can result in even more inflated prices for illegal drugs, leading to more thefts by individuals seeking funds to support their drug use. High monetary fines for drug trafficking also tend to provide police and prosecutors with a perverse incentive to focus on nonviolent drug crimes instead of violent crimes.

Each successive ramping up of the federal war on drugs has made it more evident that this war is incompatible with constitutional government, individual liberty, and prosperity. It is time for Congress to reverse course. I am optimistic that S. 1789--even with its faults-- may signal that Congress is ready to begin reversing course. It is imperative that the House of Representatives pursue a dialogue on how we can end the federal war on drugs--a war that has increasingly become a war on the American people and our Constitution.

Mr. President, today, I am proud to join Senators Durbin, Specter, Feingold, Cardin, Whitehouse, Kaufman, Franken, and others to introduce the Fair Sentencing Act of 2009. Our bill will eliminate the current 100-to-1 disparity between Federal sentences for crack and powder cocaine, equalizing the penalties for both forms of cocaine. I hope that this legislation will finally enable us to address the racial imbalance that has resulted from the cocaine sentencing disparity, as well as to make our drug laws more fair, more rational, and more consistent with our core values of justice.

I commend Senator Durbin for his leadership in fixing this decades- old injustice. He chaired a hearing before our Crime and Drugs Subcommittee six months ago to examine this issue where we heard from the Assistant Attorney General for the Criminal Division at the Justice Department. We should do what we can to restore public confidence in our criminal justice system. Correcting biases in our criminal sentencing laws is a step in that direction.

Today, the criminal justice system has unfair and biased cocaine penalties that undermine the Constitution's promise of equal treatment for all Americans. For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats ``crack'' offenders one hundred times more harshly than other cocaine offenders without any legitimate basis for the difference. We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different and the resulting impact on minorities has been particularly unjust.

Under this flawed policy, a first-time offender caught selling five grams of powder cocaine typically receives a 6 month sentence, and would often be eligible for probation. That same first-time offender selling the same amount of crack faces a mandatory five year prison sentence, with little or no possibility of leniency. This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.

Even more disturbingly, this policy has had a significantly disparate impact on racial and ethnic minorities. According to the latest statistics assembled by the United States Sentencing Commission, African-American offenders continue to make up the large majority of Federal crack cocaine offenders, accounting for 80 percent of all Federal crack cocaine offenses, compared to white offenders who account for just 10 percent. These statistics are startling. It is no wonder this policy has sparked a nationwide debate about racial bias and undermined citizens' confidence in the justice system.

These penalties, which Congress created in the mid-1980s, have failed to address basic concerns. The primary goal was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods. But the law has not been used to go after the most serious offenders. In fact, just the opposite has happened. The Sentencing Commission has consistently reported for many years that more than half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

The Fair Sentencing Act of 2009 would return the focus of Federal cocaine sentencing policy to drug kingpins, rather than street level dealers, and address the racial disparity in cocaine sentencing. The legislation we introduce today would align crack and powder cocaine sentences by setting the mandatory minimum sentencing triggers at the same levels. This equalization is a sound way to address the unjust sentencing disparity between crack and powder cocaine.

We have heard calls for this reform from Senators on both sides of the aisle. Senator Hatch, who has called the current ratio ``an unjustifiable disparity,'' recognizes that because ``crack and powder cocaine are pharmacologically the same drug'' our sentencing laws do ``not warrant such an extreme disparity.'' Even Senator Sessions, now the ranking Republican member of the Judiciary Committee, has called the 100-to-1 disparity in sentencing between crack cocaine and powder cocaine ``not justifiable'' and called for changes to make the criminal justice system more effective and fair.

The legislation we introduce today would also eliminate the mandatory minimum sentence for possession of crack cocaine. The 5-year mandatory minimum sentence penalty for simple possession of crack is unique under Federal law. There is no other mandatory minimum for mere simple possession of a drug. This bill would correct this inequity, as well. Still, the Federal penalties for drug crimes remain very tough. This bill toughens some of those penalties. It would increase fines for major drug traffickers, as well as provide sentencing enhancements for acts of violence committed during the course of a drug trafficking offense. As a former prosecutor, I support strong punishments for drug traffickers.

This legislation already has support from a broad coalition of groups, including the American Bar Association, the NAACP, the ACLU, Families Against Mandatory Minimums, the Sentencing Project, the United Methodist Church, and many more.

While serving in the Senate, in September 2007, then-Senator Obama said:

If you are convicted of a crime involving drugs, of course

you should be punished. But let's not make the punishment for

crack cocaine that much more severe than the punishment for

powder cocaine when the real difference is where the people

are using them or who is using them.

I agree. And the Justice Department agrees as well, as Assistant Attorney

General Lanny Breuer announced at our hearing this spring.

For over 20 years, the ``crack-powder'' disparity in the law has contributed to swelling prison populations without focusing on the drug kingpins. We must be smarter in our Federal drug policy. Law enforcement has been and continues to be a central part of our efforts against illegal drugs, but we must also find meaningful, community- based solutions.

American justice is about fairness for each individual. To have faith in our system Americans must have confidence that the laws of this country, including our drug laws, are fair and administered fairly. I believe the Fair Sentencing Act of 2009 will move us one step closer to reaching that goal. I urge all Senators to support this measure.

Mr. President, today, I am proud to join Senators Durbin, Specter, Feingold, Cardin, Whitehouse, Kaufman, Franken, and others to introduce the Fair Sentencing Act of 2009. Our bill will eliminate the current 100-to-1 disparity between Federal sentences for crack and powder cocaine, equalizing the penalties for both forms of cocaine. I hope that this legislation will finally enable us to address the racial imbalance that has resulted from the cocaine sentencing disparity, as well as to make our drug laws more fair, more rational, and more consistent with our core values of justice.

I commend Senator Durbin for his leadership in fixing this decades- old injustice. He chaired a hearing before our Crime and Drugs Subcommittee six months ago to examine this issue where we heard from the Assistant Attorney General for the Criminal Division at the Justice Department. We should do what we can to restore public confidence in our criminal justice system. Correcting biases in our criminal sentencing laws is a step in that direction.

Today, the criminal justice system has unfair and biased cocaine penalties that undermine the Constitution's promise of equal treatment for all Americans. For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats ``crack'' offenders one hundred times more harshly than other cocaine offenders without any legitimate basis for the difference. We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different and the resulting impact on minorities has been particularly unjust.

Under this flawed policy, a first-time offender caught selling five grams of powder cocaine typically receives a 6 month sentence, and would often be eligible for probation. That same first-time offender selling the same amount of crack faces a mandatory five year prison sentence, with little or no possibility of leniency. This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.

Even more disturbingly, this policy has had a significantly disparate impact on racial and ethnic minorities. According to the latest statistics assembled by the United States Sentencing Commission, African-American offenders continue to make up the large majority of Federal crack cocaine offenders, accounting for 80 percent of all Federal crack cocaine offenses, compared to white offenders who account for just 10 percent. These statistics are startling. It is no wonder this policy has sparked a nationwide debate about racial bias and undermined citizens' confidence in the justice system.

These penalties, which Congress created in the mid-1980s, have failed to address basic concerns. The primary goal was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods. But the law has not been used to go after the most serious offenders. In fact, just the opposite has happened. The Sentencing Commission has consistently reported for many years that more than half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

The Fair Sentencing Act of 2009 would return the focus of Federal cocaine sentencing policy to drug kingpins, rather than street level dealers, and address the racial disparity in cocaine sentencing. The legislation we introduce today would align crack and powder cocaine sentences by setting the mandatory minimum sentencing triggers at the same levels. This equalization is a sound way to address the unjust sentencing disparity between crack and powder cocaine.

We have heard calls for this reform from Senators on both sides of the aisle. Senator Hatch, who has called the current ratio ``an unjustifiable disparity,'' recognizes that because ``crack and powder cocaine are pharmacologically the same drug'' our sentencing laws do ``not warrant such an extreme disparity.'' Even Senator Sessions, now the ranking Republican member of the Judiciary Committee, has called the 100-to-1 disparity in sentencing between crack cocaine and powder cocaine ``not justifiable'' and called for changes to make the criminal justice system more effective and fair.

The legislation we introduce today would also eliminate the mandatory minimum sentence for possession of crack cocaine. The 5-year mandatory minimum sentence penalty for simple possession of crack is unique under Federal law. There is no other mandatory minimum for mere simple possession of a drug. This bill would correct this inequity, as well. Still, the Federal penalties for drug crimes remain very tough. This bill toughens some of those penalties. It would increase fines for major drug traffickers, as well as provide sentencing enhancements for acts of violence committed during the course of a drug trafficking offense. As a former prosecutor, I support strong punishments for drug traffickers.

This legislation already has support from a broad coalition of groups, including the American Bar Association, the NAACP, the ACLU, Families Against Mandatory Minimums, the Sentencing Project, the United Methodist Church, and many more.

While serving in the Senate, in September 2007, then-Senator Obama said:

If you are convicted of a crime involving drugs, of course

you should be punished. But let's not make the punishment for

crack cocaine that much more severe than the punishment for

powder cocaine when the real difference is where the people

are using them or who is using them.

I agree. And the Justice Department agrees as well, as Assistant Attorney

General Lanny Breuer announced at our hearing this spring.

For over 20 years, the ``crack-powder'' disparity in the law has contributed to swelling prison populations without focusing on the drug kingpins. We must be smarter in our Federal drug policy. Law enforcement has been and continues to be a central part of our efforts against illegal drugs, but we must also find meaningful, community- based solutions.

American justice is about fairness for each individual. To have faith in our system Americans must have confidence that the laws of this country, including our drug laws, are fair and administered fairly. I believe the Fair Sentencing Act of 2009 will move us one step closer to reaching that goal. I urge all Senators to support this measure.

Mr. Speaker, I rise today in support of S. 1789, the Fair Sentencing Act of 2010. For too long, crack cocaine users, predominantly minorities, have been subject to excessive penalties when compared to users of powder cocaine even though both drugs are chemically identical. While this bill does not go far enough towards righting this injustice, it is a tremendous step in the right direction, and I commend Senator Durbin and the rest of the Senate for passing this long overdue piece of legislation and urge my colleagues to support this bill.

Mr. Speaker, for too long users of crack cocaine were sentenced to prison terms that were much longer than prison terms for users of cocaine, a chemically identical drug. We all know why this is the case. In the 1980's, the United States was in the midst of a crack cocaine epidemic. While cocaine was often considered a harmless, even glamorous, ``recreational'' drug of privilege, crack cocaine was considered a more harmful drug and was associated with crime and destitution. The reality is that crack cocaine, though chemically identical to cocaine, is less pure and therefore sells for less on the street. As a result, this drug rapidly spread across already impoverished and crime-ridden areas of the country, in many cases making a bad situation worse. As we all know, low income Americans are disproportionately minority. Crack cocaine quickly became associated with minorities, particularly African Americans. It would be more accurate, however, to associate crack cocaine use with poverty than with African Americans. It is important to let the American people know that, at the height of the crack cocaine epidemic in this country, a 1982 the National Survey on Drug Abuse found that 22 million Americans had used cocaine at one time or another. I say this to make it clear that cocaine was as much of an epidemic as crack cocaine during the 1980s. The only difference between crack and cocaine is the user.

In response to the crack cocaine epidemic, Congress passed the Anti- Drug Abuse Act of 1986 in a reactionary effort to try and put a stop to the use of crack cocaine. The law was a part of the so called ``war on drugs,'' a popular political catch phrase at the time. This ``war'' was launched by stressing the serious social harms of violent crime, theft, social exclusion; with which crack cocaine use was associated.

Current law provides that a person convicted of crack cocaine possession receives the same mandatory prison term as someone who possesses 100 times the same amount of powder cocaine and the law has mandatory minimums for simple possession. Mr. Speaker, let me repeat that. The Anti-Drug Abuse Act of 1986 sets the penalty for possession of crack cocaine at 100 times the penalty for a chemically identical drug, cocaine and sets mandatory minimum sentences for crack cocaine users while setting a mandatory minimum sentence for cocaine users. As a result of this law, wealthy users of cocaine have received more lenient penalties than poor minority users of crack, a chemically identical drug. According to U.S. government statistics, 82 percent of Federal crack cocaine offenders are African American and only 9 percent are white. African-Americans and Latinos were incarcerated at a higher rate because of their drug use preference. In this country, where everyone is born equal, it is absolutely outrageous that the law could be so slanted. It simply makes no sense. As a former Magistrate Judge and defense attorney, I firmly believe that there should be no difference in the ratio of sentencing for crack cocaine and powder cocaine possession.

Over the years, there have been numerous efforts to lower this ratio to a more reasonable difference in sentencing for crack cocaine and powder cocaine. In 2007, The United States Sentencing Commission voted to recommended that this disparity be rectified and existing sentences reduced. Also in 2007, The Supreme Court ruled in Kimbrough v. United States that the guidelines for cocaine are advisory only, and that a judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses when sentencing a defendant. Finally, today, the United States House of Representatives will consider and hopefully pass a bill that will lower the ratio of sentencing from 100 to 1, to a new ratio of 18 to 1. Mr. Speaker, I support this bill but 18 to 1 is still unnecessary and discriminatory. An 18 to 1 ratio still preserves and institutional disparity between drug sentences of wealthy cocaine users and predominantly poor and African American crack cocaine users.

I support the direction that this bill takes the country however I am disappointed that, after all these years, an institutional disparity will be preserved. I firmly believe that there should be no disparity in the ratio of sentencing between users of crack cocaine and powder cocaine. The ratio should be one to one. This view is shared by both Republicans and Democrats alike. Former D.C. prosecutor, later D.C. Superior Court judge, and present D.C. Federal judge, Judge Reggie B. Walton, a Republican nominated by former President George W. Bush, supports an equalization of the sentencing disparity. Even President Obama stated in 2008 that the sentencing disparity ``has disproportionately filled our prisons with young black and Latino drug users.'' He cited figures that African Americans serve almost as much time for drug offenses, at 58.7 months, as whites do for violent offenses, at 61.7 months. Finally, in early 2009, Attorney General Holder

made it clear where the Administration stands when he said, ``One thing is very clear. We must review our Federal cocaine sentencing policy. This administration firmly believes that the disparity in crack and powdered cocaine sentencing is unwarranted. It must be eliminated.''

There is absolutely no justification for this racial disparity in federal cocaine sentencing policy. The playing field must be leveled to bring total equality for all races in sentencing for drug use for all variations of the same drug.

I urge my colleagues to take an enormous step in the right direction by supporting this bill to greatly improve this outdated and discriminatory law. I urge my colleagues to support this bill.

Mr. President, today, I join Senators from both sides of the aisle to pass the historic and bipartisan Fair Sentencing Act.

The racial imbalance that has resulted from the cocaine sentencing disparity disparages the Constitution's promise of equal treatment for all Americans. Although this bill is not perfect, its passage marks a significant step forward in making our drug laws fairer and more rational. Despite my belief that parity was the better policy, I have joined with Senator Durbin and support the progress represented by his compromise with Senator Sessions. It reduces the disparities that leave some in jail for years while their more privileged counterparts go home after relatively brief sentences. Today, that compromise means we are one step closer to fixing this decades-old injustice. I commend Senators Durbin, Sessions, Graham, Coburn, and Hatch for negotiating the compromise that allowed this important piece of legislation to pass the Senate Judiciary Committee by a unanimous vote. As chairman, I was able to report on behalf of the Senate Judiciary Committee the first measure we have ever been able to approve that begins to undo the unjust sentencing disparity.

For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats ``crack'' offenders 100 times more harshly than other cocaine offenders, without a legitimate basis for the difference. We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different

and unjust. This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.

These disproportionate punishments have had a disparate impact on minority communities. This is unjust and runs contrary to our fundamental principles of equal justice under law. According to the latest statistics of the independent and nonpartisan United States Sentencing Commission, African Americans continue to make up the large majority of Federal crack cocaine convictions, accounting for 80 percent of all Federal crack cocaine offenses, while they represent a much smaller fraction of those who use the drug. In a letter to our committee, John Payton, the president of the NAACP Legal Defense Fund, called this disparity ``one of the most notorious symbols of racial discrimination in the modern criminal justice system.''

These disparate penalties, which Congress created in the mid-1980s, have failed to address basic concerns. The primary goal underlying the crack sentence structure was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods. But the law has not been used to go after the most serious offenders. In fact, just the opposite has happened. The Sentencing Commission has reported for many years that more than half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

The Fair Sentencing Act of 2009 returns the focus of Federal cocaine sentencing policy to drug kingpins, rather than street level dealers, and eliminates the mandatory minimum sentence for possession of crack cocaine. The 5-year mandatory minimum sentence penalty for simple possession of crack is unique under Federal law. There is no other mandatory minimum for mere simple possession of a commonly abused drug.

This bill does not legalize drugs, nor does it eliminate harsh sentences. In fact, this bill toughens some penalties. It increase fines for major drug traffickers and provides sentencing enhancements for acts of violence committed during the course of a drug trafficking offense. But this bill also helps to ensure that our system will no longer affect many minority and urban communities more harshly than offenders who use drugs in the suburbs and corporate offices. That inequality has reduced trust in law enforcement and cooperation with police, which makes us all less safe.

American justice is about fairness for each individual. To have faith in our system, Americans must have confidence that the laws of this country, including our drug laws, are fair and administered fairly. We must be smarter in our Federal drug policy. Law enforcement has been and continues to be a central part of our efforts against illegal drugs, but we must also find meaningful, community-based solutions which enable people to feel they are being treated fairly. I look forward to working with Chief Kerlikowske, the director of the President's Office of National Drug Control Policy, to develop and deploy such a strategy.

Since 1995, the United States Sentencing Commission has issued report after report calling on Congress to address this unfair sentencing disparity. We would not be making the progress we are today without the leadership of the United States Sentencing Commission. I thank them and their chairman, Judge William Sessions.

I thank the U.S. Department of Justice for the testimony of Assistant Attorney General Lanny Breuer at our hearing on this matter last year. Attorney General Eric Holder also reminded us that ``the stakes are simply too high to let reform in this area wait any longer.'' I agree. It is time for the Senate and House to act.

After more than 20 years, the Senate has finally acted on legislation to correct the crack-powder disparity and the harm to public confidence in our justice system it created. Although this bill is not perfect and it is not the bill we introduced in order to correct these inequalities, I believe the Fair Sentencing Act moves us one step closer to reaching the important goal of equal justice for all. I urge the House to act quickly so that the President can sign this historic legislation into law.

Mr. President, I rise today to mourn the untimely deaths and celebrate the lives of two New Mexico heroes. One died just last week from injuries he sustained while serving his country in Afghanistan. The other was killed this past June in a helicopter crash after rescuing a stranded hiker lost on the Santa Fe Baldy Mountain.

Both men served their countries with distinction and honor. Both were raised in families with a strong tradition of public service. Both said ``Choose me'' when they were needed the most. Both paid the ultimate sacrifice. They are Army SFC Kenneth Westbrook and New Mexico State police sergeant Andrew Tingwall. I would like to tell you about them today.

Sergeant Westbrook's career in the military began more than 20 years ago after he graduated from Shiprock High School in northwest New Mexico. He married his childhood sweetheart, Charlene. Along the way, they had three children--Zachary, Joshua, and Joseph.

He served in the Persian Gulf war and did numerous other stints overseas in places such as Korea and Germany. He was a proud member of the Navajo Nation. He loved to hunt and fish, build model military vehicles, and was an expert chef and grill master.

His brother says Kenneth was looking forward to retiring from the military and spending more time with his family when he got the call for one more tour of duty--this time to Afghanistan. As much as he cherished the idea of spending more time with his family, Kenneth knew what he had to do: Of course, I will go, he said. Kenneth believed in the work being done in Afghanistan, his brother said. And if the Army needed him to complete that work, there was no question he would be there.

Kenneth was gravely wounded on September 8 when his unit was attacked by insurgents in Afghanistan. He was quickly flown to Walter Reed Army Medical Center for treatment. That is where I met his wife Charlene and other members of his family. That is where Sergeant Westbrook died from his injuries last week.

Military families are a special group of people. Every day they face sacrifices and challenges the average person can't imagine. They do it with grace and strength and an unwavering belief in the country they call home. That is what I saw the day I visited Charlene and Sergeant Westbrook's three boys. I saw a strength made even more striking when you realize this tragedy wasn't their first.

Four years earlier, almost to the day, another Sergeant Westbrook died. His older brother--SGT Marshall Alan Westbrook--was killed in Iraq when an improvised explosive device detonated near his humvee in Baghdad.

The Westbrooks have given more than most families. Their tight-knit family has paid the ultimate sacrifice, and for the Westbrooks, it happened not once but twice. As Americans, we often take for granted our freedoms, but we should never forget those whose sacrifice makes those freedoms possible.

Sergeant Westbrook will be laid to rest on Friday in Farmington, but he will forever live in the memory of New Mexicans.

This story of New Mexican heroism doesn't end there. I would also like to talk about New Mexico State Police SGT Andrew Tingwall, who was killed last June in a helicopter accident after rescuing a stranded, lost hiker. Sergeant Tingwall is being honored on Friday with a posthumous induction into the New Mexican Military Institute Alumni Association Hall of Fame, which I helped nominate him for. His honor is for Eminence in a Chosen Field. Similar to Sergeant Westbrook, Andy Tingwall's chosen field was service--service to his community, service to his State, and service to his country.

Known as ``Ting'' to his friends, Sergeant Tingwall graduated from the New Mexico Military Institute in Roswell in 1991 and joined the U.S. Marine Corps shortly after. During his military career, he became a jump-qualified reconnaissance marine and served with Delta Company's Fourth Reconnaissance Battalion. He continued his distinguished career as a New Mexico reservist from 1993 to 1995, when he joined the New Mexico State Police.

Eventually, he became lead instructor for the Training and Recruiting Division of the New Mexico Law Enforcement Academy before joining the New Mexico State Police aircraft section, where he became a pilot. Sergeant Tingwall proved his merit there, serving as chief pilot of the unit--the youngest man to ever have that title.

Sergeant Tingwall was known by his colleagues, friends, and family for his heroism and love of the sky, saving many lives in his time with the State police. In 2008, he was celebrated as Officer of the Year by the New Mexico Sheriffs and Police Association and would have received a Medal of Valor in June, but for Sergeant Tingwall, that day would never come.

Sergeant Tingwall was in the middle of saving the life of a stranded hiker on June 9 when tragedy struck. He and his spotter, Officer Wesley Cox, had located the stranded hiker and Sergeant Tingwall was transporting her to safety when the helicopter struck a mountainside and crashed.

After the crash, as he had throughout his career, Sergeant Tingwall put the safety of others before his own. Despite being severely injured, he managed to pull the hiker from the wreckage before they both died from their injuries. Sergeant Tingwall was just 36 years old.

Duty, honor, country--three words you hear often when talking about those who commit themselves to a life of public service. Sergeants Westbrook and Tingwall personified those words, both in the way they lived their lives and in the way those lives ultimately ended.

New Mexico is proud to honor these true American heroes. To their families, we say thank you and ask them to accept the thanks of a grateful State and a grateful nation.

I suggest the absence of a quorum.

Mr. Speaker, I move to suspend the rules and pass the bill (S. 1789) to restore fairness to Federal cocaine sentencing.

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.

I yield myself such time as I may consume.

Mr. Speaker, S. 1789, the Fair Sentencing Act of 2010, is a bipartisan compromise that was negotiated and drafted by Democratic and Republican members of the Senate Judiciary Committee. It then passed the Senate Judiciary Committee and the Senate by unanimous consent.

The legislation will reduce the 100-to-1 sentencing disparity between crack and powder cocaine in Federal law from 100-to-1 down to 18-to-1. The crack penalties, under present law, for example, it only takes five grams of crack to trigger a 5-year mandatory minimum sentence, but for powder cocaine it takes 500 grams to trigger the same 5-year mandatory sentence, a 100-to-1 ratio.

This disparity is particularly egregious when you consider that the Sentencing Commission has concluded that there is no pharmacological difference between the two forms of cocaine, and that 80 percent of the crack defendants are black, whereas only 30 percent of the powder cocaine defendants are black.

The crack penalties also create bizarre sentences when you consider sentences such as the 24 \1/2\-year sentence given to Kimba Smith for behavior that was just inferentially involved with her boyfriend's cocaine dealing.

The legislation moves the threshold amount for the 5-year mandatory minimum from five grams to one ounce, reducing the disparity from 100- to-1 to 18-to-1. The legislation does not fully eliminate the 100-to-1 disparity in sentencing for crack and powder, but it does make good progress in addressing what is widely recognized as unfair treatment of like offenders based simply on the form of cocaine they possessed.

The bill also addresses another concern. Arguments are made that crack defendants are more likely to use violence or minors in the distribution, and this bill specifically requires the Sentencing Commission to significantly increase penalties for drug violations involving violence, threats of violence, or use of minors, and another long list of aggravating activities that would be involved. This way the defendant is sentenced for what he or she actually did, not the form of cocaine involved.

Many organizations are supporting S. 1789, including the Federal Law Enforcement Officers Association, the National District Attorneys Association, the National Association of Police Officers, the Council of Prison Locals, and several conservative religious organizations such as Prison Fellowship and the National Association of Evangelicals. And all of the civil rights organizations that one can imagine are also supporting the legislation.

I would like to thank the sponsors of the Senate bill, Senators Durbin of Illinois and Sessions of Alabama, and Orrin Hatch of Utah, who came together to pass this important bipartisan legislation.

There are many Members of the House who have worked tirelessly over the years to reform this disparity, including chairman of the Judiciary Committee, Mr. Conyers; Sheila Jackson Lee; Maxine Waters; Charlie Rangel; and Mel Watt.

On behalf of the organizations and Members of Congress who support S. 1789, I urge my colleagues to support the legislation.

I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the majority whip, the gentleman from South Carolina (Mr. Clyburn).

Mr. Speaker, I yield 2 minutes to the gentlelady from Texas who has sponsored one of the many bills on this issue and has worked hard to eliminate the disparity altogether, Ms. Jackson Lee.

(Ms. JACKSON LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield the gentlelady an additional minute.

Mr. Speaker, I yield myself 30 seconds to make a brief comment.

The gentleman from California just mentioned the 1986 law. We are not blaming anybody for what happened in 1986, but we have had years of experience and have determined that there is no justification for the 100-to-1 ratio. We know that's what we know now, and so we're not blaming anybody for what happened in 1986, but we are fixing what we have learned through years of experience.

I yield 2 minutes to the gentleman from Minnesota (Mr. Ellison).

Mr. Speaker, I yield 1 minute to the majority leader of the House of Representatives, the gentleman from Maryland (Mr. Hoyer).

Mr. Speaker, this bill does not reduce the disparity from 100-to-1 to 1-to-1. It does not eliminate the mandatory minimums, but it is a step in the right direction and, therefore, I urge my colleagues to support S. 1789.

I yield back the balance of my time.