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Public Statements

Statements on Introduced Bills and Joint Resolutions

Floor Speech

Location: Washington, DC



Mr. KENNEDY. Mr. President, I am pleased to join Senator HATCH in support of this important legislation to reduce the difference in sentencing between crack and powder cocaine. It is important to ameliorate harsh drug laws that have discriminatory consequences.

The Sentencing Reform Act was enacted over 20 years ago to reduce unwarranted disparities and assure proportionality in punishment. Instead, the severity of crack-cocaine sentencing has had a harsh impact on low-income and African-American communities and has undermined public confidence in the fairness of the criminal justice system. Unfair sentencing feeds the perception that the criminal justice system unjustly targets the poor and minority communities.

The crack powder laws were intended to punish those at the highest levels of the illegal drug trade, such as traffickers and kingpins. But the low amount needed to trigger the harsh sentences is not associated with high-level drug dealing. As the Sentencing Commission reported in 2005, only 15 percent of Federal cocaine traffickers were high-level dealers. The overwhelming majority of defendants were low-level participants, such as street dealers, lookouts, or couriers. Harsh sentencing in such cases has only a limited impact on the drug trade because they involve low level offenders who are not at the top of the drug chain. The mass incarceration resulting from these sentences has done nothing to decrease drug use. Recent data indicate that such use has actually increased over time.

When these laws were enacted, there was widespread belief in the extraordinary dangers of crack cocaine. It was viewed as highly addictive and likely to cause violent behavior. We know much more about crack cocaine now than we did 20 years ago. The rationale that crack is more dangerous or more addictive than powder is not supported by research. In fact, research has demonstrated that the effects of crack cocaine are much like the effects of powder cocaine.

Medical experts have determined that the pharmacological effects of crack were overstated. They found that crack use doesn't incite violent behavior. As with other drugs, the violence is related to the distribution of the drug.

Changes in the drug market have also called the 100-to-1 ratio into question. Demand for crack cocaine by new users has decreased significantly, and the violence associated with crack cocaine has declined. How can Congress continue to support a policy it knows is flawed? Changes are long overdue and will be an important step in reducing the disparity that plagues drug sentencing policies.

Under the current sentencing laws, the statutory ratio for powder and crack cocaine is 100 to 1. One gram of crack cocaine triggers the same penalty as 100 grams of powder cocaine. Possession of 5 grams of crack triggers a 5-year mandatory minimum penalty. It is the only drug with a mandatory prison sentence for a first-time possession offense. This disparity results from an early attempt by the Commission to incorporate congressionally mandated minimum penalties into the guidelines, even though such harsh mandatory minimums are completely inconsistent with the structure and goals of the Sentencing Reform Act.

Judges, experts, and practitioners in the Federal criminal justice system have long opposed mandatory minimums on the ground that they undermine the goals of the Sentencing Reform Act by creating unwarranted disparities, subjecting defendants with different levels of culpability to the same punishment, and adding another unnecessary layer of complexity to the sentencing process.

In its 2002 report, as well as an updated report to Congress in May, the commission has repeatedly recognized that the 100-to-1 ratio exaggerates the relative harm of crack cocaine and creates unwarranted disparities that are correlated with race and class. With a new sense of urgency, the Commission continues to call on Congress to eliminate the 100-to-1 ratio.

Senator HATCH's legislation takes two important steps toward this goal. It reduces the ratio from 100-to-1 to 20-to-1, and it eliminates the mandatory minimum sentence of 5 years for first-time possession. Under the new sentencing scheme proposed by this legislation, the amount of crack cocaine triggering a mandatory minimum sentence would be raised from 5 grams to 25 grams, an amount that targets the more serious traffickers. This change will make cocaine laws more consistent with the penalty structure for other types of drugs that require much greater amounts to trigger a mandatory minimum. For heroin and marijuana, it is 100 grams. Even for methamphetamine, the triggering amount is 10 grams. Congress must take action to support the recommendations of the Sentencing Commission.

Changing the ratio will also provide important benefits to the criminal justice system as a whole. The Sentencing Commission estimates that the 20-to-1 ratio could save over 3,000 prison beds in the Federal system over a 5-year period, with millions of dollars in savings each year. Resources for prosecution could also be redirected toward more serious drug offenders, whose prosecution may actually make a difference in drug trafficking. Adjusting the ratio will also help to restore public confidence and fairness in the criminal justice system. Currently, 5,000 people are convicted under the Federal crack cocaine laws every year. The Sentencing Commission recently proposed amended guidelines for crack cocaine by reducing sentencing ranges, a change that will affect 78 percent of Federal defendants. The commission's proposed amendment to the guideline will result in an average sentence reduction of 16 months.

Drug abuse and addiction are increasingly being recognized as public health issues, not just as crime problems. More resources must be directed at breaking the cycle of drug addiction, which often leads to involvement in crimes. More resources must also be directed toward drug courts, which provide nonviolent drug offenders with treatment, not punishment. We are currently working to reauthorize SAMSHA to improve substance abuse treatment, since punishment and incarceration only address one part of the overall drug problem.

The commission recognizes, however, that its efforts are only a partial step to eliminate unwarranted disparities in the Federal crack powder laws. It has strongly urged Congress to address the problems with the 100-to-1 ratio. It is important for us to move forward on this issue without any effort to raise penalties for powder cocaine. Current law provides for 5-year and 10-year mandatory minimum sentences for offenses involving, respectively, 500 and 5000 grams of powder cocaine. There is no evidence that existing powder-cocaine penalties are too low.

Our goal is to return to the original intent of these laws and direct our limited resources to arresting and prosecuting high level drug traffickers. Our harshest punishments should be reserved for those who truly deserve them.

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