Key Senate Committee Passes Cocaine Sentencing Legislation

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WASHINGTON – The Senate Judiciary Committee today voted to approve a bill that would make much-needed changes to current cocaine sentencing laws. The bill, the Fair Sentencing Act, was introduced in its original form by Senator Richard Durbin (D-IL) to completely eliminate the discriminatory 100 to 1 disparity between crack and powder cocaine sentencing under federal law. However, a compromise was reached with Republican committee members that does not completely eliminate the sentencing disparity but reduces it to a 20-1 ratio. The Fair Sentencing Act of 2009 will now be sent to the floor to be voted on by the full Senate.

“For over 20 years now the sentencing disparity between crack and powder cocaine has created imbalance in our justice system,” said Laura W. Murphy, Director of the American Civil Liberties Union Washington Legislative Office. “Despite years of medical and legal research showing no appreciable difference between crack and powder cocaine, we continue to punish Americans disparately for the same drug. Reducing the sentencing ratio from 100 to 1 to 20 to 1 is a step forward but still leaves a hefty and unnecessary disparity. The only constitutional and fair solution is a 1-1 sentencing ratio for crack and powder cocaine.”

More than two decades ago, based on assumptions about crack which are now known to be false, heightened penalties for crack cocaine offenses were adopted. Sentences for crack are currently equivalent to the sentences for 100 times the amount of powder cocaine, and the impact falls disproportionately on African Americans. The Fair Sentencing Act is a step toward a fairer system but falls short of fixing the existing unjust sentencing framework.

In recent years, a consensus has formed across the political and ideological spectrum on the crack and powder cocaine sentencing disparity issue with both Presidents George W. Bush and Barack Obama urging reform. In 2007, the Supreme Court ruled in Kimbrough v. United States that federal judges can sentence crack cocaine offenders below the federal sentencing guidelines, giving judges more discretion to base a sentence on the evidence.

“There is no justification for this remaining sentencing gap,” said Jennifer Bellamy, ACLU Legislative Counsel. “This legislation is long overdue but it does not go far enough. With bills in both chambers and a president demanding legislative action, we finally have the political will and momentum to end this unconstitutional disparity. We should not miss this opportunity to effect real change and ensure fair sentencing for all Americans.”

In addition for calling for a 20-1 sentencing ratio, the compromise reached will also direct the U.S. Sentencing Commission to amend the sentencing guidelines to reduce penalties for offenders acting out of “fear, impulse or affection.” This last provision takes specific aim at the so-called “girlfriend problem” which refers to the tendency of the government to arrest and prosecute low-level, minimally or unknowingly involved individuals for crimes associated with drug trafficking operations.

The ACLU is representing Hamedah Hasan, a mother and grandmother arrested for crack cocaine possession who is serving her 17th year of a 27-year federal prison sentence, and has filed a petition with the Department of Justice’s Office of the Pardon Attorney asking that President Obama commute her remaining sentence. To learn more about the effort, go to www.dearmrpresidentyesyoucan.org
The ACLU’s letter in support of the Fair Sentencing Act can be found here: www.aclu.org/drug-law-reform_technology-and-liberty/aclu-letter-support-fair-sentencing-act-2009