The Honorable Richard J. Durbin

United States Senator
Illinois
April 29, 2009

Statement of Senator Richard J. Durbin
Chairman, Subcommittee on Crime and Drugs
Hearing on "Restoring Fairness to Federal Sentencing:
Addressing the Crack-Powder Disparity"
April 29, 2009

This hearing will come to order. The subject of today's hearing is "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."

This is the second hearing of the Crime and Drugs Subcommittee in the 111th Congress. First, a word about our initial hearing, which focused on the greatest organized crime threat to our country - Mexican drug cartels. Based on what we learned at the hearing, Senator Graham and I are working on bipartisan legislation to crack down on drug cartels, which we will introduce soon.

There is a direct connection between Mexican drug cartels and the subject of today's hearing - drug sentencing policy. We learned at our first hearing that Mexican drug cartels supply 90% of the cocaine in the United States and that our drug policy, which focuses largely on criminal sanctions instead of prevention and treatment, has failed to stem America's insatiable demand for illegal narcotics.

Cocaine, whether powder or crack, has a devastating effect on families and on our society but we cannot address this problem through law enforcement alone. We need a comprehensive approach that cracks down on drug trafficking organizations while emphasizing prevention and treatment for addicts.

Our drug sentencing policy also is the single greatest cause of the record levels of incarceration in our country. Today in the United States more than 2.3 million people are imprisoned. We have the most prisoners of any country in the world, as well as the highest per capita rate of prisoners in the world. One in 31 Americans are in prison, on parole, or on probation, including one in 11 African-Americans. And over 50% of federal inmates are imprisoned for drug crimes.

The United States has made great strides in the last half century in ensuring equal treatment under the law for all. When it comes to the federal criminal justice system, however, inequalities are growing rather than shrinking. African Americans are incarcerated at nearly six times the rate of whites, while Hispanics are incarcerated almost twice as much.

Today we turn our attention to one especially troubling aspect of our failed drug policy: the so-called crack-powder disparity. It takes 100 times more powder cocaine than crack cocaine to trigger the same harsh mandatory minimum sentences. Under current law, mere possession of five grams of crack--the weight of five packets of sweetener --carries the same sentence as distribution of half a kilogram of powder - or 500 packets of sweetener.

The crack-powder disparity is one of the most significant causes of the disparity in incarceration rates between African Americans and Caucasians. The dramatically higher penalties for crack have disproportionately affected the African American community: 81 percent of those convicted for crack offenses in 2007 were African American, although only about 25% of crack cocaine users are African American. The low crack threshold also diverts scarce law enforcement resources away from efforts to combat major traffickers and drug cartels.

These racial disparities undermine trust in our criminal justice system and have a corrosive effect on the relationship between law enforcement and minority communities. As the U.S. Sentencing Commission has said, even "perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system."

This sentencing framework, created in 1986, was fueled by fears about the newest drug epidemic and based on assumptions that we now know were exaggerated, or plain false. The intentions of those who crafted the 100:1 disparity were pure; they wanted to protect the victims of the crack epidemic.

But we have learned a great deal since then. Vice President Biden, the previous chair of this Subcommittee, was one of the authors of the crack-powder disparity. When he chaired a hearing of this Subcommittee on this issue last year, he said, "each of the myths upon which we based the disparity has since been dispelled or altered."

Some argue that the sentencing disparity is justified because crack cocaine is associated with more violence than its powder counterpart. But the truth is that crack-related violence has decreased significantly since the 1980's and today 94 percent of crack cocaine cases don't involve violence. And cases that do involve violence are subject to increased sentences, including a mandatory minimum for use of a weapon in connection with a drug trafficking offense.

Sadly, both the crack trade and--as we are witnessing along our Southern border - the trade in cocaine powder are frequently associated with violence. But the evidence just doesn't justify a sentencing disparity between two forms of the same drug.

In the 110th Congress, I was the chair of the Human Rights Subcommittee, and we focused on issues like genocide in Darfur, internet censorship in China, and rape as a weapon of war in the Democratic Republic of Congo. But Americans must also be prepared to look ourselves in the mirror and recognize that we are not above reproach. Our record-high incarceration rates and the racial disparities in our criminal justice system are human rights issues that we must address.

The first important step we should take is to completely eliminate the crack-powder disparity and to adopt a one-to-one sentencing ratio for crack and powder cocaine. As the Sentencing Commission has said, "Revising the crack cocaine thresholds would better reduce the [sentencing] gap than any other single policy change, and it would dramatically improve the fairness of the federal sentencing system." Given what we have learned during the past 23 years, the sentencing disparity between crack and powder cocaine is both unjustified and unjust.

In closing, it is important to note that there is a bipartisan consensus that we must address the crack-powder disparity. In particular, I want to acknowledge and commend the leadership of Senator Hatch and Senator Sessions on this issue. I look forward to working with them, Senator Graham, other members of this Committee, and the Obama Administration to address this important issue on a bipartisan basis.