As someone who has been on the front lines of the War on Drugs, I can positively state that we made progress. From 1982 (49.4%) to 1992 (27.1%), drug use among high school seniors fell by 45%. [Johnston, L.D., O’Malley, P.M., & Bachman, J.G. (2001). Monitoring the Future National Results on Adolescent Drug Use: Overview of Key Findings, 2000.]

I believe that drug use fell during that period because of a combination of things.

First, national and local leadership sent an unambiguous message that drug use was morally, legally, medically and physiologically bad. There was no ambiguity.

Second, Congress passed drug sentencing statutes that provided tough mandatory minimum sentences for drug traffickers.

Third, the Department of Justice worked with local law enforcement to prosecute substantially more drug traffickers and send them away for long mandatory minimum sentences. This combination of a clear message, aggressive prosecution, and tough sentences for drug dealers helped drive drug use down. Our country benefitted from this. The War on Drugs was not lost.

A decrease in drug use meant fewer of our young people died of drug overdoses, young people like the late basketball star, Len Bias, fewer teenage boys committed murder to feed a crack habit, and fewer teenage girls turned to prostitution to feed a powder cocaine habit.

Then for a few years, the message from our leader became unclear. From statements on MTV to defunding the drug czar’s office, the message that drug use was not acceptable became blurred. And, not surprisingly, drug use among high school seniors from 1992 to 2000 rose 52%, from 27.1% in 1992 to 40.9% in 2000. [Johnston, L.D., O’Malley, P.M., & Bachman, J.G. (2001). Monitoring the Future National Results on Adolescent Drug Use: Overview of Key Findings, 2000.] We in leadership positions today must decide what action we are going to take on the War on Drugs.

First, I believe that Senator Biden, myself, President Bush, the Sentencing Commission, and the Department of Justice stand united on the message that drug use is morally, legally, and physiologically bad. It wastes lives, results in people going to prison, and can kill you. It is not cool. It is not funny. It is deadly. Drug use and addiction drives young girls into prostitution, it funds organized crime rings that murder witnesses and judges, and funds terrorists who viciously massacre innocent civilians.[See Statement of President George W. Bush, February 12, 2002.] For every drug dealer, pimp, gangster and terrorist who is listening, hear this: Because we love our children, we will fight you and your drug trade, we will be relentless, and we will win.

Second, I applaud Attorney General John Ashcroft on the initiative he announced last year to increase prosecution of drug dealers. [See United States Department of Justice, FY2001-2006 Strategic Plan.] The more drug dealers who are off the streets, the more drug dealers who know that the risk of arrest and prosecution is high, the less drug sales there will be. I have seen this during my tenure as a federal prosecutor. The number of drug dealers prosecuted does make a difference. Sending 10 drug dealers away for 5 years each does more to fight crime and drug abuse than sending 5 drug dealers away for 10 years each.

Third, Congress and the Sentencing Commission should address the statutory and guideline sentencing schemes, respectively, for drug crimes in a manner that is both tough minded and fair. As a federal prosecutor, I whole heartedly supported the tough mandatory minimum sentences for drug criminals that Congress enacted in the 1980s. I still support mandatory minimum sentences. These tough sentences have taken thousands of violent, recidivist criminals off the street.

With respect to crack and powder cocaine, I, as a prosecutor, agreed with many in the law enforcement community in 1986 to support a 5-year mandatory minimum sentence for 5 grams of crack and for 500 grams of powder. The purpose of supporting the same 5-year sentence for such different amounts of essentially the same drug was based in large part on an effort to stop the rapid spread of crack into African-American neighborhoods. It was also based on the fear that pregnant women on crack would make their babies addicts – this was the “crack baby” phenomenon. Further, the difference in the 5 gram and 500 gram trigger points for the same 5-year sentence was based on the greater degree of violence and weapons use associated with crack.

In 2002, we can reflect on whether the 1986 trigger points are still supported by the rationales that we used 16 years ago. I have concluded that they are not. The 5-gram trigger point for crack failed to keep crack out of African American neighborhoods. Further, the scientific evidence now suggests that pregnant women on powder cocaine have the same chance of making their babies addicts as pregnant women on crack.

Moreover, the Sentencing Commission reports that 84% of defendants sentenced for trafficking crack are African Americans, while only 30.5% of the defendants sentenced for powder are African American. [2002 Report to the Congress: Cocaine and Federal Sentencing Policy, United States Sentencing Commission, May 22, 2002.] Thus, the 5-gram trigger point for crack that was intended to protect African Americans has resulted in heavy penalties for African Americans, penalties that lack a rational basis.

As a former federal prosecutor who sent numerous drug dealers to prison for long sentences, it is my considered opinion that the 100-to-1 differential between crack and powder in the trigger points for the 5-year mandatory minimum sentence is no long justified. We should change it.

Many proposals for changing the mandatory minimum have been made in the last several years. On the one hand, the current Sentencing Commission and some of my colleagues on the left have recommended that we close the gap between crack and powder solely by raising the trigger point on crack from 5 grams to 25 grams.

On the other hand, the current Department of Justice and some of my colleagues on the right support narrowing the gap solely by lowering the trigger point on powder from 500 grams to as low as 50 grams.

In 1997, the Sentencing Commission, Attorney General Reno, and President Clinton’s Drug Czar McCaffrey took the middle approach by recommending an increase in the trigger point for crack from 5 grams to around 25 grams and a decrease in the trigger point for powder from 500 grams to around 250 grams — a significant increase for powder cocaine. After talking with a number of career federal prosecutors who have prosecuted a number of crack and powder cases, I introduced legislation in 2002, along with Senator Hatch — legislation that my experience led me to conclude was sound. It is a middle ground approach. It would adjust the trigger points for both crack and powder, and it would be consistent with the Reno-McCaffrey approach. My bill would raise the trigger point for the 5-year mandatory minimum sentence for crack from 5 grams to 20 grams and would lower the trigger point for powder from 500 grams to 400 grams. Remember, 400 grams is almost one pound of what may be pure cocaine. I believe this is a fair approach to reducing the disparity between the intent of the 1986 Act and the reality of its result.

And, we must remember that keeping a dealer with 400 grams of powder of the street is important. 400 grams of cocaine will sell for $10,000 - $20,000 on the streets. This is not a small time user/dealer.

I look forward to hearing from Judge Murphy of the Sentencing Commission, Roscoe Howard of the Department of Justice and our other distinguished witnesses. I would hope that the politics of the left or the right does not keep us from a fair evaluation of this issue and adjusting the sentencing statutes if the facts show that such change is justified.

The plain fact is that in enacting the sentencing guidelines, Congress took control of sentencing. Since we control sentencing, we cannot escape the responsibility of reviewing the impact of our handiwork. On the whole, the guidelines have worked extremely well, being rational and consistent. As for the crack and powder sentencing, it cannot be justified. Let's fix it.