[Senate Hearing 107-911]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-911

                   FEDERAL COCAINE SENTENCING POLICY

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON CRIME AND DRUGS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 22, 2002

                               __________

                          Serial No. J-107-82

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                    Subcommittee on Crime and Drugs

                JOSEPH R. BIDEN, Jr., Delaware, Chairman
PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
HERBERT KOHL, Wisconsin              MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
                 George Ellard, Majority Chief Counsel
                   Rita Lari, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................     1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................    80
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     4
    prepared statement and attachment............................    86
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     6
    prepared statement...........................................   139
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     8
    prepared statement...........................................   171

                               WITNESSES

Howard, Roscoe C., U.S. Attorney, District of Columbia, 
  Washington, D.C., accompanied by James H. Dinan, Assistant 
  United States Attorney for the District of Columbia, 
  Washington, D.C................................................    16
Hynes, Hon. Charles J., District Attorney, Kings County, New York    39
Murphy, Hon. Diana E., Chair, U.S. Sentencing Commission, 
  Washington, D.C................................................    12
Otis, William Graham, Adjunct Professor of Law, George Mason 
  University Law School, Alexandria, Virginia....................    42
Schuster, Charles, Professor Wayne State University, Detroit, 
  Michigan.......................................................    33

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Rachel King, Legislative Counsel, 
  Washington, D.C., statement....................................    50
Budd, Wayne A., Executive Vice President and General Counsel, 
  John Hancock Financial Services, Inc., Boston, Massachusetts, 
  letter.........................................................    56
College on Problems of Drug Dependence, Inc., Dorothy K. 
  Hatsukami, President, Philadelphia, Pennsylvania, letter.......    58
Dearie, Raymond J., U.S. District Judge, Eastern District of New 
  York, Brooklyn, New York, letter and attachment................    67
Fraternal Order of Police, Steve Young, President, Washington, 
  D.C., letter and attachment....................................    72
Hatsukami, Dorothy K. and Marian W. Fischman, Journal of the 
  American Medical Association, November 20, 1996, article.......   105
Howard, Rosco C., U.S. Attorney, District of Columbia, 
  Washington, D.C., prepared statement...........................   108
Hynes, Hon. Charles J., District Attorney, Kings County, New 
  York, prepared statement.......................................   127
Kleber, Herbert D., M.D., Professor of Psychiatry, Director, 
  Division on Substance Abuse, Columbia University, College of 
  Physicians and Surgeons, New York, New York....................   137
Murphy, Hon. Diana E., Chair, U.S. Sentencing Commission, 
  Washington, D.C., prepared statement...........................   142
National Center on Addiction and Substance Abuse at Columbia 
  University, Joseph A. Califano, Jr., Chairman and President, 
  New York, New York, letter.....................................   163
Otis, William G., Adjunct Professor of Law, George Mason 
  University, Washington, D.C., prepared statement...............   164
Schuster, Charles R., Professor of Psychiatry and Behavioral 
  Neurosciences, Director, Addiction Research Institute, Wayne 
  State University School of Medicine, Detroit, Michigan.........   168

 
                   FEDERAL COCAINE SENTENCING POLICY

                              ----------                              


                        WEDNESDAY, MAY 22, 2002

                              United States Senate,
                           Subcommittee on Crime and Drugs,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:35 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Joseph Biden 
Jr., chairman of the subcommittee, presiding.
    Present: Senators Biden, Leahy, Hatch, and Sessions.

        OPENING STATEMENT OF HON. JOSEPH R. BIDEN, JR., 
           A U.S. SENATOR FROM THE STATE OF DELAWARE

    Chairman Biden. The hearing will come to order, please.
    This hearing, in one sense, has been a long time coming, 
and I am happy to be able to sit here and share this in the 
presence of my two distinguished colleagues, the ranking 
member, and former chairman and the chairman of the full 
committee, Senator Leahy.
    I have a relatively brief opening statement, and then I 
will yield to Senator Hatch.
    Quite frankly, with the permission of my colleagues, I 
would like them to yield to Senator Leahy and to Senator 
Sessions, both of whom have played major roles in dealing with 
this extremely controversial subject.
    This morning, the subcommittee will be examining an issue 
that has been the subject of controversy in recent years, 
namely the difference in how Federal law treats drug offenses 
involving powder cocaine and crack cocaine.
    Under the current law, as our witnesses clearly know--this 
is not meant to be instructive for the witnesses in any sense--
offenses involving 5 grams of crack cocaine, the same weight as 
these two sugar cubes in this vial, are treated the same way as 
up to 500 grams of powder cocaine, the amount that I have of 
sugar--and this is sugar in this bag.
    [Laughter.]
    Both are subject to the same 5-year mandatory minimum 
penalty.
    Now, many have argued that this 100 to 1 disparity is 
unnecessary and unjust. As a matter of fact, when President 
Bush was asked about the longer sentences for crack cocaine, he 
said, ``The disparity ought to be addressed by making sure that 
powder cocaine and crack cocaine penalties are the same. I 
don't believe we ought to be discriminatory.''
    I agree that the current disparity in sentencing cannot be 
justified, although I must take responsibility for this 
disparity existing. We all, in this business, tend to tell you 
the good things we do and claim those good things and want you 
to remember them. But occasionally, we make mistakes. I'm the 
guy that wrote the law--literally. I'm the guy who drafted the 
legislation that resulted in this disparity. But I will get 
into that in a moment.
    Today, Judge Murphy--and it is an honor to have you here, 
Judge--chair of the U.S. Sentencing Commission is with us. She 
will present the commission's unanimous recommendation that the 
disparity I referred to should be reduced by changing the 
amount of crack needed to trigger the Federal minimum mandatory 
penalties. I know that the commission, a bipartisan panel, 
comprised in large part of Federal judges who preside over 
cocaine cases, spent a great deal of time studying this issue. 
They heard from a wide range of experts before coming to their 
unanimous conclusion that the crack-powder sentencing disparity 
should be decreased to at least 20 to 1 from 100 to 1.
    Let me share with you a few facts that led to their 
conclusion.
    First, the average sentence for crack offenses was 44 
months longer than the average powder cocaine offense. Second, 
two-thirds of all Federal crack convictions are of low-level 
street dealers--two-thirds.
    Third, more than a quarter of all Federal crack offenses 
involve small quantities of cocaine, less than 25 grams.
    In the Senate, there are those on both sides of the aisle 
who feel the current crack sentence disparity is unjust. 
Senator Sessions and Senator Hatch, both of whom have led in 
this area, have introduced legislation to reduce that 
disparity. I want to congratulate them on their hard work and 
dedication to this issue, which I understand is not the most 
popular thing we could be dealing with.
    Back in 1986, as I said, I was of those people who was 
alarmed by the newest drug on the scene, and it was new then, 
and that was a smokeable form of crack cocaine that was 
ravaging our inner cities. I might add, Pat Moynihan, our 
former colleague, was the first one to call our attention to it 
and say that although it had been in the Bahamas, it was 
coming. We did not pay a whole lot of attention to it. It came, 
and it hit like a storm.
    I remember the headline, which I think summed it up. It 
read, ``New York City Being Swamped by Crack: Authorities Say 
They Are Almost Powerless to Halt Cocaine.'' It was called the 
Summer of Crack.
    In Congress, there was a feeling of desperation that 
summer, a sense that we had to give law enforcement the power 
needed to save the neighborhoods being ravaged by this drug.
    More than a dozen bills were introduced to increase the 
penalties for crack. But because we knew so little about it, 
the proposals were all over the map. We held extensive 
hearings. We had medical experts come in, telling us it was 
much more addictive. There was the phrase: ``Once on crack, you 
never go back.'' There was a lot of testimony saying how 
particularly dangerous this was.
    The proposals ranged from former President Reagan's 
proposal for a 20 to 1 disparity between crack and powder--
which is what we are proposing going back to, or at least what 
the Sentencing Commission is proposing going back to a 1,000 to 
1 disparity proposed by our old friend, now deceased, former 
Governor and former Senator Lawton Chiles.
    I joined Senators Byrd and Dole in an effort to enact an 
anti-drug abuse act in 1986, in which we established the 
current 100 to 1 disparity. Our intentions were good. But as 
the nuns who educated me used to do, after my having misbehaved 
in school by talking during class in grade school--they would 
make you walk to the board and not only clap the erasers and 
clean the board, but you would have to write 500 times on the 
board some saying. One of the ones I remember writing, and I 
committed it to memory out of necessity, was: ``The road to 
hell is paved with good intentions.''
    Well, the fact of the matter was that our intentions were 
good. But in the rush to legislation, we may not have gotten it 
right.
    Looking back after 16 years, it is clear that the harsh 
crack penalties have had a disproportionate impact on African-
American communities. There are not a whole lot of folks 
convicted for breaking into suburban neighborhoods, with people 
snorting coke and doing a line at a time. But there are a whole 
lot of folks out on the street corners that are, as they should 
be, by the way, in my view. As they should be. But 85 percent 
of those convicted for crack offenses at the Federal level are 
African-American.
    We have learned that crack and powder cocaine are virtually 
the same drug. According the Journal of the American Medical 
Association, ``Cocaine, regardless of whether it is crack or 
cocaine hydrochloride, leads to the same physiological and 
behavioral effects.''
    We now know that the dire predictions of a generation of 
crack babies whose mothers used crack during pregnancy have not 
proven true, at least according to medical experts.
    Now President Bush, Federal judges, Federal prosecutors, 
doctors, academics, social scientists, civil rights leaders, 
civic leaders, clergy, and others have begun to speak about the 
disparity between crack and powder cocaine sentences.
    That is why, quite frankly, I was surprised at Deputy 
Attorney General Larry Thompson's testimony before the U.S. 
Commission on Civil Rights in March, and I am about to be 
surprised by Mr. Howard's testimony. I know what it is going to 
be, and it is a real switch.
    Mr. Thompson said, ``After thorough study and internal 
debate, we have concluded that the current Federal policy and 
guidelines for sentencing crack cocaine are appropriate.'' That 
has surprised us all, because we all thought we were working on 
the same page, but we have found out that you are reading a 
different book.
    I hope that today we can explore the validity of the 
administration's position and its apparent shift from President 
Bush's position last year.
    I would also like to state for the record that I have 
invited Deputy Attorney General Thompson and drug czar John 
Walters to testify today. Both declined to appear before the 
Congress to explain why the administration suddenly changed its 
position. A man who we have great respect for here, John 
Walters, said he would not have time to get up to speed on the 
issue.
    The issue of the disparity between crack and powder cocaine 
laws is an important one, and I am glad that we are taking the 
time to discuss it. I look forward to the hearing this morning. 
I have an open mind as to exactly what it should be; I have 
withheld introducing my own legislation.
    I now will yield to Senator Hatch, who I think has a pretty 
sound piece of legislation that he and the Senator from Alabama 
have introduced. But I yield to Senator Hatch, and then to the 
chairman, and then to Senator Sessions.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. I appreciate your 
leadership in all of these areas, and we have worked together 
very closely for many years.
    I would like to welcome all of our witnesses here today, 
and a number of members of the U.S. Commission on Civil Rights 
in the audience that I notice--in particular, my former general 
counsel, Mike O'Neill. We are happy to welcome you back, Mike, 
and all the rest of you as well.
    This is an important hearing on Federal cocaine sentencing 
policy. Mr. Chairman, you and I have worked together for over 
two decades to fight crime, including drug trafficking. I look 
forward to working with you on this issue.
    Let me begin by saying that we have good panelists here 
today, whose diverse and expert testimony will undoubtedly help 
us devise rational, coherent, and fair sentencing policies.
    I especially want to compliment Judge Murphy for her 
leadership on the Sentencing Commission, which has produced 
thoughtful recommendations and changes in the Sentencing 
Guidelines. I look forward, as always, to hearing her views 
today.
    I also look forward to hearing today from the Honorable 
Roscoe Howard, U.S. attorney for the District of Columbia, who 
offers a unique, firsthand perspective of the impact our 
Federal drug sentencing laws have on people in communities 
every day.
    Finding ways to reduce drug crime is not and should not be 
a partisan issue. All of us who are involved in this process 
are trying to craft the right solution to curb the spread of 
drug trafficking and drug abuse. An easy, straightforward 
blueprint unfortunately has proven to be elusive in this area.
    Over 15 years ago, Congress passed the bipartisan 
Sentencing Reform Act. This was a revolutionary bill that 
categorically changed the objectives of sentencing policy. We 
replaced the then-existing model of haphazard and indeterminate 
sentencing with a sentencing policy that focused on certain and 
objective punishment. But it is fair to say that some of the 
bipartisan changes to Federal sentencing policy the Congress 
has made over the last 20 years have been more successful than 
others.
    For over a decade, I have questioned, along with others, 
the overall utility of some severe minimum mandatory sentences. 
Indeed, in 1993, I published a Law Review article, suggesting 
that Congress should consider greater use of alternatives to 
mandatory minimum sentences, including the use of specific and 
general sentencing directives in pursuing uniform, certain, and 
effective sentencing. I still believe that today. That is why I 
agreed to cosponsor, with Senator Sessions, S. 1874, the Drug 
Sentencing Reform Act.
    S. 1874 reduces the sentencing disparity between the 
mandatory minimum sentences imposed for offenses involving 
crack and powder cocaine. Over the past decade, public 
officials, interest groups, and criminal justice practitioners 
have questioned the fairness and practicality of Federal 
sentencing policy for cocaine offensives, specifically the 100 
to 1 ratio between powder and crack cocaine. I have come to 
agree that while crack cocaine has a disproportionately greater 
detrimental effect than powder cocaine on society, particularly 
in minority families, children, and communities, the sentencing 
differential, which is based solely on drug quantity, does not 
further adequately the objectives of a fair and just sentencing 
policy.
    The Sessions-Hatch bill reduces the 100 to 1 sentencing 
disparity between crack and powder cocaine to a 20 to 1 ratio 
by raising the threshold for crack from 50 to 20 grams and 
lowering the threshold for powder from 500 to 400 grams.
    I want to be clear that this reduction does not give 
credence to the argument that crack and powder cocaine are 
coequal in their destructive effects. On the contrary, this 
fivefold reduction in the crack-powder ratio corrects the 
unjustifiable disparity while appropriately reflecting the 
greater harm to our citizens and communities posed by crack 
cocaine. Moreover, the increase in penalties for powder cocaine 
offensives simply reflects the existing reality that cocaine in 
whatever form has had very devastating effects on families and 
communities.
    Our bill also includes specific directives to the 
Sentencing Commission to create sentencing enhancements for all 
drug offensives that involve violence or the use of fire arms 
and for organizers and supervisors who use young women and 
children to distribute drugs.
    Finally, our bill contains another specific sentencing 
directive that will reduce the sentences of people who play a 
minimal role in drug offensives.
    Ours, I believe, is a balanced bill that uses various 
sentencing methods to craft a more rational and effective 
sentencing policy. It does not go easy on drug dealers. Those 
who are determined to peddle dangerous drugs to our most 
vulnerable citizens will continue to pay gravely for those 
choices. Those who use firearms or violence while dealing drugs 
will be punished even more severely. Those who are less 
culpable, albeit far from innocent, will receive fair and just 
punishment.
    The approach Senator Sessions and I take in our bill 
differs from that which is being recommended by the 
administration and the Sentencing Commission. Reasonable minds 
can and do differ often as to the appropriate response to this 
issue.
    I understand that the administration is continuing to study 
the disparity issue and its consequential effects, and I 
commend them for what they are doing and encourage their 
continued involvement in this process. I personally believe 
that we can all work together on this issue and possibly reach 
common ground. I know that the Senators here today, all of whom 
I respect--in fact, I respect all Senators on this committee, 
and we are going to work closely together to do this, and I 
look forward to meeting this challenge.
    Mr. Chairman, I ask that a copy of my complete statement be 
included in the record, along with my December 2001 letter to 
Judge Murphy and a copy of my 1993 Law Review article.
    Chairman Biden. Without objective.
    Senator Hatch. Thank you, Mr. Chairman.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Chairman Biden. Thank you very much.
    Mr. Chairman.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Senator Hatch, Senator Biden and I have all 
served both as chairman and as ranking member of this 
committee. None of us have the seniority, though, of Senator 
Biden.
    Chairman Biden. That is an honor that I just as soon 
forego.
    [Laughter.]
    Senator Leahy. The only member of the Senate who is senior 
to me yet still younger than I am.
    [Laughter.]
    Judge Murphy, it is always a delight to see you, and I 
appreciate, I must say at the beginning, the amount of time you 
have spent with me in different meetings here. It means a great 
deal to me.
    Mr. Howard, you understand, of course, as U.S. attorney for 
the District of Columbia, you really have the best job of 
anybody in Washington. You may not know it sometimes, when 
those calls come at 3 a.m., but you really do.
    Mr. Howard. Thank you, Senator.
    Senator Hatch. I see Judge Sessions here. Without leaving 
anybody else out, of course, Judge Sessions, from Vermont, an 
old and dear friend of mine and an extraordinarily well-
respected judge and before that a trial attorney in Vermont.
    Mr. Howard, when we speak of U.S. attorneys on the 
Sentencing Commission, you have our former U.S. attorney, 
Charles Tetzlaff, who is sitting back here. I know this will 
embarrass him, but we have had an awful lot of good U.S. 
attorneys in Vermont; everybody in Vermont agrees that he set 
the mark. He is the best U.S. attorney Vermont ever had. So I 
am glad he is there with you now.
    I think in this cocaine sentencing, and Senator Biden and 
Senator Hatch have touched on this, and certainly Senator 
Sessions has said in his speeches, I don't think any of our 
criminal laws have really created more controversy over the 
past 15 years. The disparity between sentences for crack and 
powder cocaine has been a debate about racial bias in our 
justice system. It has also made it difficult for our law 
enforcement to work in a lot of minority communities.
    Even as the crack epidemic of the 1980s has dropped, and 
the crime rate has dropped dramatically, we in Congress have 
been unwilling to revisit this issue in a serious way until 
now.
    I hope today's hearing shows a change in the demagogic 
battles we fought during the 1990s.
    I am grateful Senator Biden is holding this hearing. I know 
that Senator Sessions and Senator Hatch have been very active 
in this, and I think they have helped get the debate going.
    The report is extremely good. I would note that the 
commission has made a unanimous recommendation. Considering the 
fact that these commission members go across the political 
spectrum and background, this should weigh heavily with us.
    It is an important report. It shows that the principles 
that guided Congress in 1986 were often uninformed, and Senator 
Biden has pointed that out. I voted for some of these very same 
things that we are now revisiting. Some were not properly 
implemented.
    All of us, Republican or Democrat, on this committee are 
opposed to crime. We are all opposed to crime. But now we have 
to think about the best to approach that.
    I think Senator Biden pointed out, and I am going on the 
assumption that these are----
    Chairman Biden. I am assured it is sugar.
    [Laughter.]
    Senator Leahy. I am not going to hold them up again, but 
the 5 grams of crack cocaine, the 500 grams of powder--the 
commission reported in 2000 that the average sentence for a 
crack cocaine offense was nearly 4 years longer than for a 
powder cocaine offense. It has swelled our prisons. It has had 
a disproportionate impact on the African-American. They make up 
85 percent defendants facing crack cocaine penalties.
    Now, this disparity would be troubling enough if we 
believed our cocaine sentencing policy was working. But I think 
the penalties we created have proven poorly suited to the 
concerns we sought to address. We wanted to crack down on those 
who were bringing crack into our neighborhoods. We were 
concerned about the effect of the crack epidemic on our young 
people in our urban areas. We said that we will have these 
tough penalties because we are going to focus on the 
traffickers. Well, the Sentencing Commission reports that two-
thirds of Federal crack cocaine offenders are street-level 
dealers. They are not the serious or major traffickers that we 
talked about in the 1986 drug abuse act. So it has not had its 
intended effect.
    Then, there are a lot who talked about the crack babies, 
that we had to do something about that. Anybody who has been a 
parent or a grandparent who looks at what happened with these 
children had to be moved by it. So we thought we would go after 
crack to help out on prenatal matters. But now, according to 
the commission, we know the negative effects of prenatal crack 
exposure are identical to prenatal powder cocaine exposure, and 
they are less severe than the negative effects of prenatal 
alcohol exposures, something that goes across every racial 
category and, I might say, in my limited experience in this, 
across every economic and educational level.
    I think the roadmap in the commission's recommendation is 
toward a fair and more proportionate system. The commission 
would increase the 5-year mandatory minimum threshold for crack 
cocaine offensives from 5 grams to at least 25 grams and the 
10-year threshold from 50 grams to at least 250 grams, leaving 
powder cocaine untouched.
    They talk about additional sentencing enhancements for 
those who are really the criminals, the drug importers, the 
drug offenders who use weapons of violence, dealers who sell to 
children. I have to agree to that.
    Senators Sessions and Hatch have introduced legislation 
that takes us part way toward solving this problem. In fact, 
Senator Hatch joined me, I think, this last December, when we 
asked the commission to look at this.
    I think their bill is a good start, but I would change it. 
Instead of achieving a 20 to 1 ratio by lowering threshold 
quantities for powder cocaine, we need to leave powder cocaine 
thresholds alone and increase the threshold for 5-year 
mandatory minimum sentences for crack cocaine to 25 grams, not 
20.
    Now, Deputy Attorney General Thompson testified before the 
Sentencing Commission that he is not aware of any evidence that 
existing powder cocaine penalties are too low. Apparently, 
their only rationale for increasing penalties for powder 
cocaine is to reduce the disparity. That is not a good enough 
reason, and I commend Senators Hatch and Sessions for holding 
to their convictions.
    Especially as, two days before taking office, President 
Bush said we should address this problem by making sure the 
powder cocaine and crack cocaine sentences are the same. He 
said he did not believe we ought to be discriminatory. He spoke 
of his concerns that we imprison too many people for too long 
for drug offensives.
    It defies belief that the President's aim was to equalize 
penalties for crack and powder cocaine through a dramatic 
increase in powder penalties that would further overcrowd our 
prisons. His own Justice Department has decided that is the 
only acceptable way to equalize crack and powder penalties. The 
Justice Department is way off track here. I am glad that 
neither the Republicans nor the Democrats on the Sentencing 
Commission accepted this view.
    So let's work together. I will certainly work with the 
commission. I would like to see these recommendations come into 
law.
    Incidentally, you also talked about increasing maximum 
penalties in three statutes that protect our cultural heritage, 
and I will work to introduce legislation along that line.
    Thank you, Mr. Chairman. I have to tell you, there is no 
member that I have served within 27 years who has spent more 
time worrying about this subject than you have.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Biden. Thank you. I wish I had gotten it right the 
first time.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Senator Biden. I appreciate 
your summary of the circumstances leading to the passage of 
this legislation. I don't know, under the circumstances, that 
you were wrong at the time. But since the Congress has, in 
effect, taken over sentencing--and we have--we have mandated 
sentencing with very narrow margins for Federal judges--it is 
appropriate for us to review how it is going and see if we can 
update it, improve it, refine it, and make it better. I think 
that is what we are doing here, as far as I can see.
    As a prosecutor, when you and Senators Hatch, Thurmond, 
Kennedy, and Leahy were drafting this legislation, I welcomed 
it with great delight. I believed that it would help us fight a 
war against drugs that I was committed to as a U.S. attorney. I 
believe it did.
    In fact, from 1982 to 1990, drug use dropped 45 percent 
among high school students. There was more progress than most 
people ever believed in fighting drugs. It was a combination of 
creating an atmosphere of intolerance and unacceptability of 
drugs, tough prosecutions, aggressive prosecutions, and tough 
sentences. Those things ended up reducing addiction in America, 
reducing the use of drugs in America, and I believe helped play 
a role in reducing crime in America.
    I am not coming at this from a point of view of being soft 
on crime. I believe a good, tough prosecution makes a 
difference. I respect the Department of Justice for having the 
gumption to come in and defend what they do. They are nervous 
about us sending a signal that we are going soft on drugs. They 
are nervous that anything that reduces some of the tools that 
prosecutors have to prosecute cases could undermine their 
effectiveness.
    But I was a prosecutor too, 12 years as U.S. attorney, two 
and a half years as an assistant. I think we have to look at 
this objectively. We have to ask ourselves what is the best way 
to fight crime, and can we justify, can we defend in public, 
sentences that require 100 to 1 ratios for drug sentences? I do 
not think that we can defend that rationally. I do not believe 
the experience that we have seen would indicate that we should 
sustain and maintain sentences with that kind of disparity.
    I think that is where we are coming from. I will offer my 
full remarks for the record; I want to go on to the panel.
    I think that the trigger points that we had 16 years ago 
may have made sense at the time. But based on our experience, 
they do not make sense today, and they are not rational, such 
that we can defend them. If that is so, let's review it and 
change it. Let's listen to the Sentencing Commission. Senator 
Hatch's and my legislation is more consistent with the previous 
recommendations of the Sentencing Commission than this one, but 
it is still pretty close. Not much difference from what you 
say.
    I would suggest that there is a basis for cracking down 
stronger on the ``yuppie-drug,'' powder. We are going from 500 
grams under our bill to 400 grams of powder, carrying a 
mandatory 5-year sentence. But that 400 grams is almost 1 pound 
of powder. A nickel weighs about 5 grams. So we are talking 
about still a rational sentencing policy for powder that I 
believe is justified. I think we have been too light on powder.
    I think there is a combination of too much aggressiveness 
on crack and too little aggressiveness on powder that resulted 
in this extraordinary disparity that we are not able to defend.
    It did seem to fall particularly on the African-American 
community, where crack was most prevalent. That was not the 
intent of it, I know, when you passed it. In fact, the intent 
was to try to stop this explosive growth of crack that was 
destroying whole neighborhoods. But we came in either too late 
or it just couldn't be done, because within just a matter of 
years, small towns in Alabama had crack cocaine all over. So it 
just spread throughout the country, and the goal of being able 
to stop the spread of crack just has not been achieved.
    I would suggest that Senator Hatch's and my bill is pretty 
close to what General McCaffrey proposed, the last drug czar. 
Attorney General Reno, I believe, supported that also.
    It is a middle-level approach. It calls for a modest 
increase in powder and a modest decrease in crack, leaving us 
with a more balanced, logical, and defensible sentence.
    Maybe we will ask Mr. Howard what the prices are today, but 
as I recall, a kilogram of powder cocaine would sell for about 
$25,000 or more 10 years ago. You are talking about 500 grams, 
400 grams; we are talking about over $10,000 cash value on the 
street in wholesale bulk form. It would be even more if it were 
broken down. So this is not a smalltime offender who has 400 
grams of cocaine.
    Mr. Chairman, thank you for having this hearing. I look 
forward to the full discussion. That is the great thing about 
America. We put it all out on the table. That is your style as 
a leader, put it out on the table. Let's make some good 
decisions. I look forward to working with you.
    Chairman Biden. Thank you. Your entire statement will be 
placed in the record.
    [The prepared statement of Senator Sessions appears as a 
submission for the record.]
    I do apologize to the witnesses for us taking the time we 
have taken. But as you know, Your Honor, this has been a matter 
of great discussion and great disparity. When you have Senator 
Leahy and Senator Sessions and Senator Hatch and Senator Biden 
agreeing on the parameters here, there has been some movement. 
That is important.
    For the record, it is not just the African-American 
community concerned about disparity. It is leading 
conservatives in America: James Q. Wilson, the Ronald Reagan 
Professor of Public Policy at Pepperdine University; John 
DiLulio, who has been here a number of times, the former Bush 
administration official, who is referred to as a ``crime 
control conservative''; the congressional testimony of the 
Bureau of Prisons director, Kathy Hawk Sawyer; Supreme Court 
Justice William Rehnquist; Supreme Court Justice Anthony 
Kennedy, one of the most conservative and brilliant jurists in 
the country; Richard Posner, a Reagan-appointed chief judge of 
the Chicago-based Seventh Circuit; Barry McCaffrey; Edwin 
Meese, former Attorney General; Tim Lynch, who directs the 
Criminal Justice Project for the libertarian Cato Institute; 
and William F. Buckley.
    They have spoken to this issue, and they have spoken to 
these sentences. One of the underlying reasons why we feel so 
strongly about this is the one thing we do not want to do as 
leaders is we do not want to breed contempt for the law. When 
there is an obvious and overwhelming disparity, regardless of 
the intention, no matter how well-intentioned it was, if that 
disparity exists, it breeds in whole communities the notion 
that the law is deliberately directed at them, that the law is 
deliberately directed at discriminating against them. When we 
cannot sustain in a rational debate with scientific evidence 
the discrepancy being justified, then, it seems to me, we have 
an obligation to do something about that.
    I ask unanimous consent that the statements of the men I 
referred to be put in the record at this time.
    Again, we are going to be all over the board, but we are 
all on the same field finally. We are all on the same field. 
Some are on the 20-yard line, some are on the 40-yard line, but 
we are all on the same field. We will get this right.
    But, again, remember, Jerome Frank in his famous work, 
``Law and the Modern Mind,'' talked about the judicial myth and 
the need for there to be a belief that the system was fair. 
Mussolini's quote about the pope, ``How many legions does the 
pope have?'' Hitler's response was that all they have is their 
moral standing; they have no armies; they have nothing else.
    Respect for the law is incredibly important. If we breed 
disrespect, even unintentionally, because it is viewed as not 
being fair, that is very damaging. That is my underlying 
concern about trying to get this right.
    I will not interrupt any longer.
    I am pleased to welcome back to the Judiciary Committee 
Judge Diane E. Murphy, Chair of the U.S. Sentencing Commission.
    Judge thank you for taking on that responsibility. It is 
not an easy job.
    Judge Murphy of Minneapolis, Minnesota, has served as a 
judge on the U.S. Court of Appeals in the Eighth Circuit since 
1994. She has been a Federal judge on the bench since 1980, 
when she was appointed to the U.S. District Court for the 
District of Minnesota. From 1992 to 1994, she served as the 
court's chief judge. She also worked with the Federal 
Sentencing Guidelines since their introduction in 1987, first 
as a sentencing judge in the trial court and then as an 
appellate judge, reviewing the sentences imposed.
    Judge Murphy was a State district court judge from 1976 to 
1978, and an associate in a law firm from 1974 to 1976. Judge 
Murphy has served as a national president of the Federal 
Judges' Association, as Chair of the board of the American 
Adjudication Society, and as a member of the board of the 
Federal Judicial Center. She chairs the Judge Advisory 
Committee to the American Bar Association's Standing Committee 
on Ethics and Professional Responsibility.
    I will not go through the rest of her background, but I do 
want to welcome her.
    The second witness is Roscoe C. Howard, U.S. attorney for 
the District of Columbia. This is his first time testifying 
before the Congress, so we are particularly pleased to have 
you, notwithstanding the fact that your elders and seniors 
refused to be here.
    That does not mean that you are not welcome. You are 
welcome. I am just angry at them. If I were chairman of the 
full committee, I would make sure they paid a serious price for 
not being here, and I mean that sincerely.
    But we are happy to have you here and welcome you.
    Mr. Howard received his undergraduate degree from Brown 
University, and his law degree from the University of Virginia. 
From 1984 to 1987, he served as assistant state attorney in the 
District of Columbia and then moved to assistant U.S. attorney 
for the eastern District of Virginia, where among other 
responsibilities he serves as the Richmond division head of the 
Organized Crime and Drug Enforcement Task Force.
    We welcome them both.
    Judge we do have a copy of your report of the Sentencing 
Commission. I have distributed it to all members. I am aware, 
for the record, this is not the first time the Sentencing 
Commission has addressed this subject, and we are delighted you 
are willing to take it on again. The floor is yours.
    Excuse me, Judge, Senator Grassley has a keen interest in 
the subject of drug policy. He is required to be on the floor 
of the Senate, but he wanted to be here. He asked me to express 
his apologies, and I would ask unanimous consent that the 
statement that he intended to deliver in person be inserted in 
the record at this point.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]

    STATEMENT OF HON. DIANA E. MURPHY, CHAIR, UNITED STATES 
             SENTENCING COMMISSION, WASHINGTON, DC

    Judge Murphy. Thank you very much, Chairman and Senator 
Sessions and my seatmate, Mr. Howard.
    I am happy to be here on behalf of my colleagues on the 
Sentencing Commission.
    As I think you are well aware, this is the first 
opportunity this new commission has had to talk with the Senate 
about cocaine. We came into office on November 15, 1999. We 
have been very busy since then.
    I remember testifying, and both of you were there, at the 
Senate Caucus on International Narcotics Trafficking last year 
on our increased penalties on ecstasy. In the time since we 
have been here, we have increased penalties on methamphetamine 
manufacturing; distribution of amphetamines; on precursor 
chemicals; on schedule B depressants, including the date drugs 
and GHB; also on the proprietors of rave and crack houses. I 
just mention that because this is not a soft on crime 
commission. Quite the contrary.
    But we decided this year, for a variety of reasons, to take 
up this important topic. It was, in the first instance, many 
different groups talking to us about their concerns with this, 
including judges who are actually sentencing the human beings 
that are convicted of these crimes, and many different 
community groups. We had the legislation that Senator Sessions 
was contemplating and that he and Senator Hatch then 
introduced. We had the letter from Senators Leahy and Hatch, 
asking us for a report. We were aware of statements by people 
in the administration, from the very highest places to others 
involved in drug enforcement, that there seemed to be an 
interest in taking another look at this.
    We have a very open process. When we decide that we are 
going to study something, we publish notice of that. We get 
input, written testimony, materials of all kinds. We had a 
series of public hearings this year, at which a variety of 
people testified on cocaine sentencing, including people who 
have studied it--academics, medical and scientific people, 
people from the various communities that are affected by it and 
concerned about it, also prosecutors and defense counsel who 
were involved in this. We tried to get a lot of people from the 
government to come, and we did have, as you referred to, the 
deputy attorney general at our hearing in March.
    We also had the benefit that our own staff analysis of the 
data we collect.
    These are the actual cases that have been prosecuted and 
where people have been convicted of these drug crimes. I am 
going to refer to a few charts that show what the data are 
about the cocaine cases.
    We believe that in the course of the year, from the variety 
of sources that I have indicated, we have discovered that there 
is new information available about these offenses. When the 
Anti Drug Abuse Act was passed 16 years ago, there may have 
been somewhat limited information available at that time, 
because of the newness of the crack situation. But we believe 
that there is significant information that merits Congress 
taking another hard look at this, and we welcome the fact that 
you all here are doing that.
    We spent most of the year working toward our substantive 
position on this. We talked back and forth. The fact that we 
came out with a unanimous result is not because we just go 
along like lemmings. It is the opposite. It was a lot of hard 
work.
    Chairman Biden. I can testify to that, Your Honor.
    [Laughter.]
    Judge Murphy. As we got closer to the end of the year, all 
of a sudden, we were aware that we had a major procedural 
decision to make. This was whether to promulgate an amendment 
that would have effected the change in the guidelines 
controlling sentencing. The Commission would have had the power 
to promulgate an amendment to send to Congress. Congress, of 
course, would have had the power to do whatever it wanted, if 
it didn't like it. Or should we make a recommendation to 
Congress? That was a hard decision, particularly for some of 
our members who felt we only have these responsibilities for a 
limited time, and we believe that here are adjustments that 
could be made, and who knows when Congress might act on it.
    But we, on the other hand, came to understand that there 
would be real problems in passing an amendment, because the 
guidelines, by the Commission itself, were tied to the 
mandatory minimum structure. If we would have changed the 
guidelines by themselves, it would have created a greater 
disparity between those people who were sentenced because of 
the trigger of the mandatory minimums and those who were 
sentenced under the guidelines.
    We also talked with all of you, with your staffs, and other 
members who are not here today. We perceived that there was a 
concern. Obviously, this is something that Congress has to do. 
The Commission cannot do it by itself. That may be one of the 
reasons that the prior Commission, back in 1995, did not take 
the most effective procedure in that it took the approach of a 
separate amendment.
    Any rate, we decided to come with a recommendation, and we 
are here now.
    You have received my written testimony, as well as the 
report. I do have charts here.
    The first one is just a visual description of what you have 
already referred to, which are the demographics of the offender 
population. Over 90 percent are minorities for crack. Of that, 
it is over 84 percent of the offenders who are black.
    On the powder offenders, there again, a very large 
proportion, over 80 percent, are minorities. But here the 
largest segment is Hispanic.
    Now, all of our data are national data. It is the whole 
universe of the cases that are actually prosecuted where there 
are convictions, so it is the total group. I imagine we may be 
hearing something about the District of Columbia that Mr. 
Howard is going to be very, very familiar with. But I just 
wanted to emphasize that our material is the national effect.
    The second figure takes the Department's testimony about 
comparing the cocaine powder sentences and the crack sentences 
where the amount has been less than 25 grams. You see that 
there is a 4.8 times greater sentence. The 100 to 1 disparity, 
of course, is in the trigger amounts that trigger the mandatory 
minimums, but these are the actual sentences. You can see how 
much more severe the crack sentences are. We asked the question 
of whether that proportion is the appropriate proportion.
    The next figure shows the offender functions in the actual 
cases. You see this very large bar, which is over 66 percent of 
the crack convicted defendants who are actual street-level 
dealers. We have other charts in our report that show the small 
amounts these people are dealing in.
    You have referred already to your 1986 legislative history, 
where the intent of Congress was to capture the serious 
traffickers with the 5-year mandatory minimums. Actually, what 
is being captured are the street-level dealers, as you can see 
from this. The idea was that serious traffickers, and it was 
defined more fully, and the major traffickers, would get the 10 
years. When we saw the chart with the functions, we were 
amazed. We didn't expect that to be--this was something we 
learned as we studied this this year.
    Then when we looked at the offense characteristics of the 
offenders, we began to look at some of these concerns that 
society has about weapons, about violence, about protected 
locations. Sales to pregnant women, that almost is nonexistent 
for crack; there is more for powder cocaine, but not much. 
Bodily injury, it is not a great percentage of the offenses, 
but that is the serious offenders. These are the ones that 
society is most concerned about.
    As we thought about this, we thought the rational system 
adjustment would be to target those cocaine offenders who are 
the more serious threat to society. For that reason, we 
developed our sentencing enhancements.
    The next chart shows a shorthand version of our unanimous, 
bipartisan recommendation. I think really our recommendations 
are very close to those of Senator Sessions and Senator Hatch. 
There are some differences, but when Senator Hatch said that he 
thought we were on common ground and could work toward that, I 
was very happy to hear that.
    We recommend that the 5 year mandatory minimum trigger be 
moved up to 25 grams and that the 10 year mandatory minimum be 
at least 250 grams. This would be a 20 to 1 ratio. We do 
believe that crack offensives, for a variety of reasons, should 
be punished more severely than powder. But we believe that this 
20 to 1 is appropriate.
    We understand why Congress chose to use quantity. It is 
something that everybody understands as a measure. But we think 
that you can get a more closely targeted sentencing system if 
you add something to that, and that is looking at special 
aggravating conduct together with quantity. So we arrived at 
these specific enhancements. That is that there would be 
increases for the use of weapons, and it goes up, the number of 
points. There are levels that would go up, depending on whether 
a weapon was actually used, brandished or possessed in 
connection with it. Bodily injury, depending on how serious it 
was, would have different level enhancements.
    Those people that import--these are higher up people, as 
Congress recognized back in 1986--would also have an 
enhancement, those who are repeating drug felons, drug 
trafficking felons.
    Then protected persons and locations--schools, playgrounds, 
the pregnant, youth, and so forth.
    Then we believe that we should maintain the current 
thresholds with powder cocaine. The more we looked at it, we 
did not see any persuasive evidence that these sentences were 
too low as is. We have the greatest respect for Senator 
Sessions because he is so knowledgeable about this whole area, 
but that was our conclusion.
    Finally, and this is an important chart, this last chart, 
because it captures the sentencing scheme that Congress has 
set. It shows the relative comparison of drug sentences. On the 
left hand side, you see the current sentences, and then you see 
on the right hand side what it would be with our changed 
amounts and our aggravator enhancements.
    You see that crack cocaine is by far most seriously 
sentenced. Methamphetamine is next. Powder cocaine is next. 
Heroin is lower. Then, of course, marijuana.
    Some people knowledgeable about drugs are surprised when 
they see this relative pattern that has come into existence.
    But then you see, with our recommendations put in here, 
that these are brought more closely together and, we believe, 
in a more proportionate sentencing scheme, which is one of the 
main goals of the Sentencing Reform Act.
    We would be glad to furnish more information. We feel that 
this is punishment that fits the crime. I guess will shut up, 
like I am supposed to, with that buzzer.
    [The prepared statement of Judge Murphy appears as a 
submission for the record:]
    Chairman Biden. Judge, this is very important testimony, 
and I am the guy who wrote the Sentencing Reform Act. I am the 
guy who created your outfit.
    Quite frankly, what was intended was the kind of work you 
just did. I mean, I think that our inclination here is to deal 
with quantities, as you said, because they are understandable. 
But if you look at that chart, it shows what the actual 
sentences would be, based on your recommendations, versus what 
the actual sentencing pattern is presently.
    You factor in the things we intended. You factor in 
violence; you factor in drugs; you factor in weapons; you 
factor in previous behavior. You factor in what the real world 
is like out there, and you end up with something that has crack 
cocaine, heroin, methamphetamine, marijuana, and powder cocaine 
clearly in a more proportionate relationship to one another 
that what is over here.
    Anyone who argues that crack cocaine, for example, warrants 
another 22 months in jail, almost 2 years more in jail than 
methamphetamine, has an awful hard case to make, in terms of 
impact on the community.
    You ask a cop who he would rather go out and arrest, 
someone on meth or someone on crack cocaine, I promise you that 
it someone on crack cocaine. The guy on meth is very hard to 
handle.
    I think you have done what I had hoped.
    Judge Murphy. Could I add one thing, Senator?
    Chairman Biden. Please.
    Judge Murphy. I appreciate what you just said, and I had 
wanted to point out that we do have the effect of increasing 
powder sentences. I sounded like we didn't.
    Chairman Biden. I can see that.
    Judge Murphy. It is because the enhancements for the more 
serious powder offenders, who have the aggravating conduct 
factors, would go up.
    Chairman Biden. The impact is that the average sentence for 
crack cocaine would go from 74 months to 83 months, almost a 
year longer.
    Judge Murphy. Right.
    Chairman Biden. My point is that this is not the soft on 
crime thing. It also goes up for methamphetamine, from 86 
months to 91 months. It also goes up for heroin, from 62 months 
to 66 months. It goes up from marijuana, from 35 months to 36 
months. It comes done from 118 months to 95 months for crack 
cocaine.
    Again, I haven't read the whole report, but one of the 
reasons I wanted that accumulated expertise, when I drafted the 
law, was for you to do this kind of complicated, not 
simplistic, calculation as to what the effect on the actual 
real world is of the sentencing. That is why we needed your 
expertise.
    Again, I have not decided, but I am impressed by the way 
you have gone about it. I compliment you.
    Let me yield to Mr. Howard now, and have his opening 
statement, if you would.

 STATEMENT OF ROSCOE C. HOWARD, U.S. ATTORNEY FOR THE DISTRICT 
  OF COLUMBIA, WASHINGTON, DC; ACCOMPANIED BY JAMES H. DINAN, 
     ASSISTANT U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA, 
                         WASHINGTON, DC

    Mr. Howard. Thank you, chairman, members of the 
subcommittee. I do appreciate the opportunity to come here on 
behalf of the Department of Justice to discuss this very 
important issue.
    First, I would like to certainly thank Judge Murphy and the 
Sentencing Commission for the work they have done on behalf of 
the Department of Justice, especially with their work with the 
USA PATRIOT Act.
    Senator Leahy, despite this country's new focus on 
terrorism, we believe it is critical that we not allow our 
fight against illegal drug abuse to falter. These 
recommendations by the Sentencing Commission do exactly that, 
by lowering what we believe are the proper penalties for crack 
cocaine distributors.
    I have laid out many of the reasons in my testimony, why I 
think that this decision is misguided and why the current 
Federal sentencing policy on crack cocaine offensives are 
proper.
    It would be appropriate to address the existing 
differential between crack and powder cocaine not by raising 
the amount for crack cocaine but by lowering the amount for 
powder cocaine.
    If enacted, the Justice Department believes that the 
commission's recommendations to lower crack cocaine penalties 
would signal a retreat in our Nation's fight in the drug war.
    What the commission and these recommendations, we believe, 
fails to take into account are the victims, the families, the 
neighborhoods, the places where these people operate, where 
they live, what they affect.
    The Justice Department would like today to give voice to 
those victims. We understand that the charts look at the 
defendants and who was arrested, but they operate in 
neighborhoods. I don't have a lot of neat charts, so I 
apologize. But what I do have are some people.
    If I could, I would like to introduce Ms. Shandra Smith. 
She is sitting behind me on my left.
    Chairman Biden. Ms. Smith.
    Mr. Howard. Ms. Smith is the mother of two very bright--one 
in college--individuals who were gunned down in cold blood in 
the streets of the District of Columbia.
    The picture before you is 20-year-old Rodney Smith. He was 
home from college, and while driving his sister--Volante, a 14-
year-old--to a church party, they stopped at a light. 
Unfortunately, they stopped in front of a gentleman by the name 
of Tommy Edelin, a person that we have just prosecuted the 
District of Columbia's first-in-30-years capital case.
    Tommy Edelin runs a crack gang. With him was a young 
enforcer, who was trying to make a name for himself. 
Unfortunately, the Smiths were driving a car that seemed to be 
a lot like a car that had just taken a shot at Edelin and his 
colleagues. So, as they pulled up behind the car that Ms. 
Smith's children were in, the enforcer gets out, runs up behind 
it, unloads a 9 mm in the back of both of their heads and kills 
them both.
    That is who we are here to represent today. Yes, they're 
black. Yes, that's who these neighborhoods affect.
    Edelin gave the nod, and just to prove a point, he had two 
very innocent people killed.
    This city has been victimized by these crack dealers, just 
as the rest of the Nation has. They are the most violent gang 
you will ever see.
    We start, as we look at the nightly news, and a lot of us 
who read the Post on a daily basis, you read the Metro section, 
and you become accustomed to the deaths that occur in this 
city.
    In our office, we do not. They occur every day. Our 
prosecutors look at them every day.
    Volante and Rodney Smith are simply an example of what 
happens, just innocent people in the wrong place at the wrong 
time. Unfortunately, in this city, the wrong place is becoming 
wider and wider and wider.
    We are shocked when they take it out on law enforcement. 
This is very brave, bold group. You may or may not remember, 
but two FBI agents and a police officer were killed in police 
headquarters by a crack cocaine dealer. The officers were FBI 
agents Martha Dixon-Martinez and Michael Miller and MPD Sargent 
Henry M. Daily. They were killed by Bennie Lawson, who worked 
for the First and Kennedy Crew.
    Uniform police officer Jason White was killed by Donzell 
McCauley, a street-level dealer in the Kentucky crew. McCauley 
was arrested later, and when he was arrested, not only did he 
have a weapon, but he had 13 Ziploc bags of crack cocaine, a 
total 1.5 grams.
    Victims like these are why the President and why the 
Attorney General have asked me to be here today. We are happy 
and proud to represent these victims.
    Lowering the penalties for crack dealers is simply 
inconsistent with our reinvigorated battle. The current 
penalties for crack offensives appropriately reflect the 
greater harm that crack simply causes. Smoking crack we know is 
psychologically more addictive. In essence, what you get from 
smoking crack is a bigger bang for your buck, if you will. Its 
greater addictive effects cause heavier and more frequent use, 
greater bingeing, more severe social and behavioral changes, 
clearly more money.
    This is a cash enterprise. As the money flows, the guns 
come out to protect the money.
    Further, crack can easily be broken down and packaged into 
very small, inexpensive quantities for distribution, thus 
making it particularly attractive to vulnerable members of our 
society and, obviously, our vulnerable communities.
    Let me share with you another example of somebody who 
became addicted to crack cocaine. One mother, in order to 
support her addiction, became a cooker. This is, again, Tommy 
Edelin. She was hired by the 1-5 Mob, which was Tommy Edelin's 
group.
    She permitted her children to be involved in crack cocaine, 
in trafficking cocaine. The young boy with the number 3 over 
his head is this young cooker's son. At the time this picture 
was taken--this is Tommy Edelin sitting beside the picture 
number 1. The three people around him are all 12 years old. 
They joined this gang when they were about 10.
    The young man, by the time he was 14, was dead, killed as a 
street-level dealer. The other two boys are both in prison, one 
for murder, one for RICO conspiracy.
    The neighborhood where they lived was ravaged by this 
group. They could not sleep. They could not walk outside. They 
could not go do their grocery shopping. They cannot go to 
church. They don't let their children play outside. If you walk 
through the community, their community is a wreck, with 
bullets, graffiti to mark the different gangs' territory.
    These are crack cocaine traffickers. The area is already 
poor, and the gang just made it deteriorate further.
    Once this mob was arrested, if you walked through the 
neighborhood, you could see the effects immediately. It became 
a more thriving, law-abiding community.
    This 1-5 Mob is simply illustrative. We have many gangs 
like this in the city, some I cannot talk about now because we 
are in the process of prosecuting them as we sit here. They do 
involve minorities. All these gangs do. But they operate in 
minority communities. That is their neighborhood. Those are the 
people they know they can intimidate. Those are the people they 
know won't turn on them because they are scared. They are 
scared of these gangs.
    We have made a lot of progress. When you hear the very 
figures that you are giving out to us as the numbers are 
dropping, the Justice Department believes that is a direct 
result of the legislation as it is now on the books. Our 
prosecutors do a wonderful job in enforcing those, and it does 
have its effects.
    But the neighborhoods that are ravaged by crack cocaine are 
still here in the District. Our work is far, far from done.
    The citizens, as I go out to community meetings, they still 
complain that they are unable to leave their homes. They still 
complain about the drug groups operating on their front steps, 
in front of their stores, in front of their churches, in front 
of their schools. The murder rate has been cut in half, and we 
do thank you, Senate, for you leadership on that. Certainly the 
prosecutors, the assistant U.S. attorney, throughout the 
country have done their share.
    Nationwide, yes, the murder rate for African-Americans as a 
percentage is 50 percent. I will let you know that here in the 
District of Columbia it is exactly 90 percent. Ninety percent 
of those murder victims are African-American. Crack cocaine and 
the violence it spawns simply remains an extremely serious 
problem.
    What you have done by giving us this mandatory minimum at 
the present level is given us a very, very important tool in a 
fight that we are presently winning. We think for you to change 
that will simply handcuff us and make our fight that much 
harder.
    Now, my written testimony addresses many other reasons for 
keeping the penalties where they are. Probably one of the most 
important things is that these crack dealers are a lot like any 
business. They're very, very smart. They know what is going on. 
We think, the Justice Department, for you to change them now is 
simply sending them the wrong message.
    I will guarantee you one thing: They will adjust. They will 
adjust, to all of our detriment.
    Now, again, yes, African-Americans--we don't disagree with 
the charts that the Sentencing Commission and Judge Murphy have 
brought up here. We don't disagree with them at all. We know 
that this epidemic has a serious, serious effect on the 
African-American communities. We know that. Believe me, we 
appreciate it, and it is something that we all take a hard look 
at. But our prosecutors in our office, certainly in the 
District of Columbia, we are in those communities every day. 
The victims are the ones that we think that you need to 
address. They're the ones that you have to talk to. They're the 
ones who are listening. They are the ones who look for support. 
They are the ones who look to offices like mine for help, and I 
have promised to give them that.
    Now, what I do not want to do is go back out there and tell 
them that our job is a little tougher. I believe that the 
changes that you are suggesting will do just that.
    We are here because we do not want lives ruined. We do not 
want young men, like the one in the picture that we just showed 
to you, to have their lives ruined.
    believe me, when you talk about--I know, Senator, you 
showed the two little sugar cubes. For crack cocaine, that is, 
take my word for it, it is a lot of drugs. You are talking 
about, with a group like the 1-5 Mob or some other groups we 
are looking at, being able to take that amount of crack cocaine 
and package it to serve between 50 and 100 people. Believe me, 
when you have the much crack, when you have it, you are very, 
very effective in getting this poison into the street. Where 
you find the crack, you are going to find the guns.
    One other picture that I would like to show you, this is a 
picture on the return on a search warrant of the 1-5 Mob. If 
you look in the upper left-hand corner, you will see small 
Ziploc bags. Those small Ziploc bags contain a total of 4.6 
grams of cocaine. I will represent to you that that amount is 
not accidental.
    As you adjust, they are going to adjust. Instead of finding 
them putting 4.6 grams out on the street, if you raise it 20, 
they are going to start putting 19.6 grams out on the street. 
You are just simply inviting them, encouraging them, telling 
them, ``Go ahead. Put the rest of the drugs out there.''
    The reason I wanted to show you this is that this is not 
uncommon for us. We pick up the drugs, we are going to pick up 
the guns. Violence goes with this territory. Violence simply 
goes with this territory.
    We think that lowering these penalties simply provides, 
from Congress to the people out there--I know these are the 
people you are wanting to address--but we think it simply sends 
the wrong message at the wrong time. Right now, we are winning.
    Now, I have written testimony, and with the chairman's 
permission, I would like to have that entered into the record.
    Chairman Biden. Without objection, it will be placed in the 
record.
    Mr. Howard. At this time, gentlemen, I would be glad to 
answer any questions.
    [The prepared statement of Mr. Howard appears as a 
submission for the record.]
    Chairman Biden. Thank you very much.
    We are going to have to leave in a moment and come back.
    Let me just begin by addressing Mrs. Smith.
    Mrs. Smith, in different circumstances, I lost a daughter 
and I lost a wife abruptly, like you lost your two children. 
All I can say to you is that there is not anything--we can do 
or say, or the prosecutor can do or say, that can ease your 
pain.
    I think the worst thing that can happen to someone is have 
a child predecease a parent. My heart goes out to you.
    Everyone can empathize, but unless it happens to you, you 
can't fully understand it.
    I just tell you, my heart aches for you. That is almost 
insurmountable, what you have had to overcome.
    But I can also tell you from experience that time--in time, 
when you remember your two children, they're going to bring a 
smile to your lips and not a tear to your eye. My prayer for 
you is that moment comes sooner than later. But it will come. 
It will come.
    We appreciate you being here. I am sorry that you have to 
here, believe me, more than you can imagine, how sorry I am you 
have to be here.
    I have a number of questions for you, Your Honor, if I may, 
but I am going to ask Mr. Howard, is your argument that there 
is not violence and guns associated with trafficking in meth?
    Mr. Howard. I am certain there is. I think my 
representation is that it is not going to be as persistent and 
as common.
    Chairman Biden. Now, what evidence do you have? That is not 
what I am told, by the way, just so you know. What I get in 
Philadelphia, Wilmington, Delaware, California--I mean you talk 
about the Bloods and the Crips in California, meth is their 
deal.
    Let me just read a press release from you; I assume it is 
about this. It says: Violent drug-trafficking crew known as 
blah, blah, blah, all defendants were found guilty of 
participating in narcotics conspiracy and distributing over X 
number, Y period of time. This investigation focused on the 
narcotics trade and the attendant violence in the housing 
projects in Washington, DC This crew is responsible for 
distributing large quantities over the past 7 years. It lists 
two young people killed by these drug deals. The quote from 
your boss says that this crew was so vicious a group of 
dealers, whose decade-long reign of terror brought massive 
prosecution efforts by the chief gang prosecutor. It is 
credited with at least 17 murders, including systemic killings 
of potential witnesses.
    I mean, that is pretty bad stuff.
    Mr. Howard. That could be any of our crack press releases, 
so I apologize that I am not exactly----
    Chairman Biden. It is a marijuana press release.
    Mr. Howard. Marijuana is a problem. I will tell you----
    Chairman Biden. A marijuana press release. It lists the 
names of the people: Srigate Sook and Leticia Henry, shot 
exactly like your children were shot. Good, decent people.
    From your office, they talk about this K Street Crew, 
incredibly violent. They are dealing marijuana.
    Mr. Howard. Senator, we have had marijuana problems in the 
city, too.
    Chairman Biden. But my point is, you are saying here and 
your boss is saying that:

          The experience of D.C. shows that marijuana dealers are no 
        less violent than cocaine and heroin traffickers. They have 
        just as much money to lose, just as much turf to lose, and just 
        as many reasons to kill any drug trafficker.

    That is a press release put out on May 1 of this year by 
John P. Walters. So I guess he disagrees with you.
    Mr. Howard. I do not think he does at all, sir.
    Chairman Biden. Let's get clear here, OK? It says that 
marijuana dealers are no less violent than cocaine and heroin 
traffickers. Your testimony is that they are less violent than 
cocaine traffickers. Is it not? Isn't that your whole point? 
This is the single most violent group of people, cocaine 
traffickers; isn't that your rationale?
    Mr. Howard. They have changed----
    Chairman Biden. Answer my question, please.
    Mr. Howard. I am trying to answer your question, Senator.
    Chairman Biden. No, you can answer it yes or no.
    Mr. Howard. No, I can't answer that question yes or no, 
Your Honor. I apologize, but I can't.
    Chairman Biden. OK, you answer it then.
    Mr. Howard. If you give me a chance, I will.
    Chairman Biden. Sure.
    Mr. Howard. What I am trying to say is, the crack dealers 
have certainly changed the landscape in this city----
    Chairman Biden. No question.
    Mr. Howard [continuing]. Certainly more so than marijuana.
    Chairman Biden. OK, let's stipulate to that. Now, what is 
the point beyond that that you are trying to make?
    Mr. Howard. The point I am trying to make is that, with the 
crack dealers right now, with our mandatory minimums, we are 
able to use that as a hammer, to try to figure out where they 
are getting their crack and move up.
    What is going to happen is, if you move the mandatory 
minimums up to 20 grams or whatever, all you are doing is 
encouraging these dealers to bring more of this poison onto our 
streets.
    Chairman Biden. OK, I've got that.
    Mr. Howard. OK.
    Chairman Biden. That makes sense to me.
    If need be, I will be happy to swear you in as a witness. 
But you are not testifying here, then, that crack gangs are 
more violent than marijuana gangs or more violent than 
methamphetamine gangs; is that correct?
    Mr. Howard. Excuse me for a minute?
    Chairman Biden. Sure.
    Mr. Howard. What I am saying is that, with the crack gangs, 
you are going to find that guns and violence are probably more 
associated with them.
    Chairman Biden. What evidence do you have of that? Can you 
give us any evidence to sustain that? The judge comes in with 
data. Do you have any evidence?
    I am not arguing that you may not be right. I haven't taken 
a position on this yet.
    Mr. Howard. Your Honor, if you want evidence, go ahead and 
swear me in, and I will give it to you right now.
    Chairman Biden. Well, I don't have to swear you in; I'll 
just ask you now.
    What is the evidence?
    Mr. Howard. Your Honor, my evidence are my prosecutors, and 
the cases that we have----
    Chairman Biden. My son is a Federal prosecutor handling 
drug cases. That is not his experience in Philadelphia with 
methamphetamines----
    Mr. Howard. Bring him down to Washington.
    Chairman Biden [continuing]. Any more than cocaine.
    Mr. Howard. Bring him down to Washington.
    Chairman Biden. No, the point is that this is national. I 
am not the mayor of D.C., I am a United States Senator. I am 
chairman of a committee that is trying to come up with a 
rational policy.
    Now, I have not made a decision, but you are not giving me 
relatively important data relating to your basic point, which 
is that, if Mr. Sessions and Mr. Hatch succeed and we raise the 
threshold to 20 grams, then it is going to make it harder for 
you to prosecute.
    I thought that if I listened to your testimony, and I will 
reread it--if I listen to your testimony, I thought the point 
of having this wonderful woman here was that she was 
particularly victimized because crack dealers were more violent 
than all other dealers. I bet if I took a vote in here, I think 
the most folks out there probably thought that was the point 
you were trying to make.
    Maybe I am just slow. Maybe I misunderstood the point of 
your graphic testimony, which is moving and compelling. But I 
am trying to figure out what the point is.
    Mr. Howard. Well, I guess I don't understand the question.
    Chairman Biden. Are crack gangs more violent than other 
street gangs dealing drugs other than crack? That is my 
question.
    Mr. Howard. Senator, I don't know how many times somebody 
needs to be killed or shot to make somebody more or less 
violent.
    Chairman Biden. Give me a break. Look, I am trial lawyer, 
too. Don't pull this stuff on me. Just answer the question: Is 
it in fact--I am literally trying to find information.
    Is it the Justice Department's assertion that crack gangs 
are more violent than other drug trafficking organizations?
    That is the question. Either you know yes, you know no, or 
you don't know.
    Mr. Howard. I think if you look at the studies, Your 
Honor----
    Chairman Biden. What is your opinion?
    Mr. Howard. My opinion is yes, they are.
    Chairman Biden. Yes, they are.
    Now, I will leave the record open for a week----
    Mr. Howard. OK.
    Chairman Biden [continuing]. For the department to come and 
give us any information--you may be right----
    Mr. Howard. OK.
    Chairman Biden. But give us some information, other than 
theatrics, that this is in fact true. That's all. We are just 
trying to figure it out.
    It is not what your boss says in the press release. It says 
prosecutor Volkov--you know him?
    Mr. Howard. Volkov?
    Chairman Biden. Yes. Do you know him or her?
    Mr. Howard. I do. It's a him.
    Chairman Biden. It says,

          The experience in D.C. shows that marijuana dealers are no 
        less violent than cocaine and heroin traffickers. They have 
        just as much money to lose, just as much turf to lose, just as 
        many reasons to kill as any drug trafficker.

    Now, if that statement is true, then it seems to me then, 
it doesn't go to the issue of whether we should keep the 
penalties up or down, relative to violence. It is the same with 
all dealers.
    I always thought, having done this for a while--and as that 
old joke goes, probably have forgotten more than most people 
know about drug trafficking--I have always thought that it 
related to the bucks, the dollars. The dollars were the thing 
that most impacted upon whether or not Rashid shoots Johnny on 
the corner, to claim his corner. I thought it was mostly 
related to dollars, but I may be wrong.
    I will give you all the chance in the world to respond when 
I come back. I only have 2 minutes left to vote.
    If Senator Sessions comes back, I will ask him to start his 
questioning, and we will proceed.
    OK, thank you very much. We are going to recess.
    [Recess from 11:57 a.m. to 12:11 p.m..]
    Senator Sessions. I will just say how much I have 
appreciated the remarks both our witnesses have made and the 
discussion that has been started here. I am sorry that I missed 
the excitement.
    [Laughter.]
    But, Mr. Howard, you are a man of passion, and so is 
Senator Biden.
    Mr. Howard. Next time I will go with you, Senator.
    Senator Sessions. As you were talking, the juices started 
flowing. You are the kind of man I want to be my prosecutor.
    Mr. Howard. Thank you.
    Senator Sessions. I am glad President Bush has chosen you, 
because if you do not have a passion for the victims of crime, 
if you do not care about the neighborhoods that have been 
destroyed by drug dealers, you cannot be a very effective 
prosecutor, in my view.
    I just would say that, and I thank you for being 
aggressive.
    Mr. Howard. Thank you, Senator.
    Senator Sessions. I know that if we have a not particularly 
significant reduction, in my view, in the actual sentences that 
will be imposed, prosecutors will feel--some will, at least--
that there is some diminution in the tools that they have in 
their arsenal. I have talked to a lot of prosecutors; I think 
most of them feel comfortable with some modification.
    I do not want juries to feel like, if they convict them, 
they might get a sentence that is disproportionate or unfair. I 
worry about that a lot.
    Judge Murphy, I would like to commend you on your 
leadership on this committee, specifically on your decision to 
propose an amendment to Congress and not to try to manipulate 
the guidelines by the commission in a way that I think would be 
inconsistent with the logic of the guidelines. I am sure some 
may have preferred to do that, but I appreciate you doing it, 
and we will see what we can do about it.
    I want to ask you a few things about the charts that you 
raised. I think the chart that you showed that is showing a 4.8 
times greater sentence for crack than powder, when you are 
dealing with less than 25 grams, is a significant factor, and 
it is something that we should consider. I think that is an 
accurate chart that shows a reality that we should look at.
    My and Senator Hatch's bill would increase powder a little 
bit and reduce crack some. I think you would have a better 
picture on there under any circumstances.
    The next chart, on the offender function in crack cocaine 
cases, I would like to talk about that a little bit.
    Mr. Howard, I tend to agree with you on this issue, that it 
is the street-level dealers that are disrupting the 
neighborhoods. They will kill you over a matter. They are 
addicting people and selling it and moving the drugs on the 
street.
    Don't you think it is a mistake for us to minimize too much 
the street-level dealer's role in this whole process?
    Mr. Howard. I think that's absolutely correct, Senator. Not 
only are they addicting people, but they are addicting people 
who are in neighborhoods who can't afford it.
    This has a corollary effect, in that these people are going 
out to other neighborhoods, trying to find the money in order 
to feed their addiction.
    As I said before, it is a cash commerce that they are going 
through. The crack, as you can see, is dealt with in small 
quantities. Ordinarily, when we catch somebody, it is not a 
true reflection of what they are actually doing. Just like any 
business, they do not keep all of their stash near them, 
because they know that there is a high potential to get robbed, 
thus the guns. They know that they have a lot of cash, because 
it is not only a quick high but it is a fleeting high, so 
people need to come back.
    Those people are running out to neighboring communities. 
They are breaking into cars, breaking into our homes, taking 
things, selling those things, coming back, getting their cash. 
The dealers have the cash. They are going to keep the main part 
of their stash someplace else. They know the potential for 
robbery. They have the guns.
    They operate in these neighborhoods because that is where 
they live, that is where they know the people. If somebody is 
going to testify against them, they will let folks know, ``I 
will kill them.''
    Senator Sessions. I don't know what evidence or proof we 
have, but you have been at this awhile, and I have been at this 
awhile, when you have people who are addicted, they want that 
cocaine from the dealer.
    Mr. Howard. Yes.
    Senator Sessions. The dealer, if they have it stolen from 
them or if they put it out on credit and don't get paid, can't 
go down to the U.S. District Court and sue for a bad debt.
    Mr. Howard. That's correct.
    Senator Sessions. I mean, they collect their own money in 
their own ways.
    Mr. Howard. They do.
    Senator Sessions. It is a mean, vicious, dirty, rotten 
business, is it not?
    Mr. Howard. It is, Senator.
    In the pictures I gave you, I included two pictures of some 
street-level dealers gone awry. The first one is Maurice 
Doleman. I did not have a blowup of this. He goes awry of the 
group, and this is Maurice Doleman just a few months later.
    Senator Sessions. Killed.
    Mr. Howard. Killed.
    The second picture in your group is Emanual Bennett, 
another street-level dealer. Again, gone awry of the 1-5 Mob. 
Here he is, killed, another ordered killing.
    They enforce their rules, their laws, their business 
practices in much, much different ways. There is a lot of cash 
involved. There is a lot of violence. Violence becomes a way of 
life for these groups.
    Senator Sessions. With regard to marijuana and crack 
cocaine, do you have any evidence that there is a distinction? 
We were just discussing the violence level.
    Mr. Howard. The evidence I have actually comes from the 
Sentencing Commission, and their own figures show that, with 
crack cocaine, 21.3 percent of those involved with crack 
cocaine have a weapon involved, compared--I know marijuana was 
Senator Biden's topic just before the break--their figures show 
that only 5.9 percent are involved.
    There is no doubt that when you have people dealing in an 
illicit trade, that there is some danger involved. Everybody 
knows that it's illegal. The problem that we have with crack is 
that it is just more prevalent. One of the reasons it is more 
prevalent, again, it is a small quantity. It is something you 
can stick in your pocket and hide.
    Marijuana, for those who don't know, is bulky. It is just 
not a commodity that is easy to move around.
    There is just simply a lot more cash involved. It really 
has changed the landscape of the District of Columbia.
    Senator Sessions. The intensity of a habituation or an 
addiction of marijuana compared to crack is quite different 
too, isn't it?
    Mr. Howard. I think that the reports bear that out, that it 
is a highly addictive drug. It is made from cocaine, and we 
understand that. But what we find is that the addiction rates 
are higher. The physiological addiction is higher. Again, the 
high, as we understand it, wears off quicker; therefore, they 
need it more. They are actually going through quite a bit of 
cocaine in a given week, probably as much as 2 to 3 grams in a 
given week. That is quite a bit of money in neighborhoods that 
don't have it.
    Again, what our evidence has shown, what our experience has 
shown, as prosecutors in this city, is that people will do 
whatever they need to fix that. They will steal. Women become 
prostitutes. We found a sharp spike in prostitution. Gunpoint 
robberies.
    Just a few weeks ago, one of my assistants was held up on 
Capitol Hill in a gunpoint robbery. They do not care who they 
are holding up. They just want your money, and they are going 
to go back and fix their addiction.
    Senator Sessions. Well, that's important.
    Just the night before last, a young lady I know was beaten 
pretty badly in a robbery. It just brings it home. She was 
going in her door and was knocked down, injured. She had some 
surgery on her knee, and it was injured.
    This violence out there is important to deal with, and I 
think I may have quoted that one of the concerns with our 
proposal to modify the crack guidelines was that it was 
inconsistent with our reinvigorated battle, and I like to hear 
you say that.
    My personal view is that I would rather have 10 people sent 
to jail for 5 years than 5 people for 10 years. I mean, I think 
you have to clean up those streets. We cannot allow 
professional street toughs pushing drugs in the neighborhoods, 
undermining the safety of that neighborhood. We have to keep 
the pressure on.
    Mr. Howard. Senator, they are our windows into the large 
dealers. When we have the kind of tools that have been provided 
to us, we are able to get these street-level dealers, the 
people in the original bill Congress wanted to address, those 
who are keeping the street market going. When we can get to 
them and find out where they're coming, having a hammer of a 
mandatory sentence makes a difference. It makes a big 
difference. They will talk, and that's how we break a lot of 
these groups.
    We have actually had the success in the District of 
Columbia of breaking a street-level dealer with just a few dime 
bags and actually being able to go across the country and find 
out who the suppliers were.
    Those are the things I think that you would want us to do. 
As you take certain tools away from us, it simply makes that 
job harder. I mean, clearly, we will work at it. But right now, 
we have the tools that are effective. We have the tools that we 
think actually work.
    Senator Sessions. Let's talk about the real situation here. 
You are different because you represent, in effect, the State 
and Federal Government in the District of Columbia. But 
throughout the Nation, these drug laws, I know Judge Murphy 
knows, are just for the Federal court cases. That's one reason, 
your next-to-the-last chart, showing these figures for crack 
and heroin and marijuana, I don't think can be as valuable as 
you think.
    The reason I would say that is this: You've got 36 months 
for marijuana. In Federal court, they are selecting cases to 
bring into Federal court. So a marijuana case is not going to 
be brought into Federal court unless it is a pretty big dealer 
operation probably. The same, actually, is true with cocaine. 
We have very few, do we not, Mr. Howard, 5-gram cocaine cases 
in the district?
    Mr. Howard. That is true. Usually, if you are going to 
bring something that small in the--if we bring in it the 
district, it is on the superior court side. But if we were to 
do it on the Federal court side, there would have to be far 
extenuating circumstances--violence, gangs, something like 
that.
    Senator Sessions. When I was a U.S. attorney, we would 
sometimes try to take out an entire organization. We may only 
have a certain amount of drugs on some of the lower people, but 
we felt it was justified in prosecute the whole organization, 
so there wouldn't be anyone left to continue the activity in 
the neighborhood.
    You made a good point about the African-American community. 
There was a minister who brought a group up to Washington a 
couple of years ago. He had been the pastor of a church in a 
neighborhood where we did a Weed and Seed group, and prosecuted 
a vicious crack gang. He introduced me to his church members as 
the man who put the crack dealers in jail for life. They all 
applauded. These were some very bad criminals.
    We have to get our perspective correct about who we are 
representing and who we are concerned about.
    But I don't know, looking at your chart, Judge Murphy, I do 
think it is probably correct, based on the cases that you've 
analyzed, that we are not seeing a major reduction in the 
sentences for crack cocaine. You are going from 95 to 188 
months. Now, I am not sure the deterrence of a crack case or a 
crack prosecution would be much less whether the guy got 95 
months or 118.
    Is that sort of what you are saying?
    Judge Murphy. That is definitely what we are saying. The 
statistics reflect that these are violent crimes. The data 
shows that these are serious offenses. But we believe that, 
with our recommendation, there will be serious sentences.
    I did want to say one thing that our data also shows, and 
there wasn't time to talk about, and that is that the violence 
connected with drug crimes has gone down. Particularly 
measuring back to 1986, there is less incidence of violence 
connected. That is another reason we feel it is important to 
target those cocaine offenses that are associated with 
violence.
    I am afraid that I am going to have to leave in just a 
minute, because I have to catch a plane back to Minneapolis, 
and it is the last seat available.
    Senator Biden, I know that you said that you had a 
question.
    Chairman Biden. I will submit them to you in writing, 
Judge, if I could.
    Judge Murphy. OK. We would be glad--I did want to say one 
thing. Our data is, as I said, reflecting the national universe 
of these offenses for the year 2000.
    But, whenever we go anywhere in the country, we meet with 
the local Federal judges to ask what is on their mind. A lot of 
the time, they are attacking the mandatory minimums or 
attacking what we do on the Commission. But we feel it is 
important for us to listen to what their concerns are.
    We had a meeting in the fall with the Federal judges in the 
District of Columbia, and it was very well-attended. It was 
attended by judges appointed by George W. Bush as well as by 
his father, and I believe there was somebody there that had 
been appointed by President Reagan also, and of course 
President Clinton. We didn't set the agenda; it was up to them 
to talk about what they might be concerned about.
    What they talked about were their great concerns about what 
they perceived as unfair disparity in these cocaine and crack 
cases, and they are dealing with these cases all the time, from 
a neutral perspective. So I did want to put that in the record.
    Senator Sessions. Thank you.
    Mr. Chairman, one thing that you did and this Congress did 
that has reduced violence, I am absolutely certain of it, is 
when you made the mandatory 5 years without parole for carrying 
a firearm or using a firearm during a drug offense.
    The word is out, don't you think, Mr. Howard, if you are 
dealing drugs, don't be carrying a gun, because you have 
another 5 without parole on top?
    Mr. Howard. Senator, we have actually picked up that 
statement on intercepts. They know. They know, ``Let's leave 
the gun.'' They know what goes on.
    Judge Murphy. That is one of the satisfying moments.
    Mr. Howard. Right, it is. It makes us all smile.
    Chairman Biden. It makes me smile too, since I wrote it.
    Judge I know you have to go, so you are excused. I am 
presumptuous to excuse a judge, but you are excused, Your 
Honor.
    Judge Murphy. Again, Mr. Chairman, thank you so much for 
having this hearing. I think we would all agree, no matter what 
we have talked about, that it is very important for you all to 
be looking at this.
    Chairman Biden. I have one question for Mr. Howard, if I 
may.
    Mr. Howard. Yes, sir.
    Chairman Biden. Of the crack cocaine cases that you have in 
the District that your office has prosecuted, can you give me a 
number of how many crack cocaine cases you have prosecuted in 
the District? Can you give me an estimate, the number of crack 
cocaine cases?
    Mr. Howard. In a year?
    Chairman Biden. In a year or any measure.
    Mr. Dinan. It would probably range from 65 to 85 or 100.
    Chairman Biden. OK. Would you be willing to submit that 
exact number for the record?
    Mr. Howard. Your Honor, we can supplement the record with 
our own data from the office.
    Chairman Biden. Secondly, can you estimate now--if you 
can't estimate, do it for the record--whether the discussion 
that the Senator from Alabama I had before, and my experience 
in Delaware and, I don't want to get my son in trouble, but my 
impression in the Philadelphia office, which is a gigantic 
office, is that there are very few prosecutions brought by the 
Feds for crack cocaine possession that are under 20 grams. Is 
that right or wrong?
    That is my impression. I may be wrong.
    If you have 65 to 80 prosecutions a year for crack cocaine, 
what is the average amount possessed by the individual you 
brought the case against? Is it 5 grams? Is it 15 grams? Is it 
20 grams? Can you tell me? Do you have any idea?
    Mr. Howard. In order to be accurate, I would have to look. 
I understand the point, and it is an excellent point.
    One thing I would like to point out, one of the things that 
drug dealers do try to do, as we talked about avoiding guns, we 
pick people up on a regular basis, and they will say, ``What do 
you think we have here? About 4.5 grams?'' They know what the--
--
    Chairman Biden. I am sure that is true, absolutely true for 
every crime. But my point is, what do you prosecute on average. 
In other words, I am trying to figure out what you bring into 
Federal court, in terms of a prosecution for crack cocaine.
    Let me put it this way, have you prosecuted anybody for 5 
grams this year? Just 5 grams, nothing else? My bet is that you 
haven't. I don't know, but I am curious.
    Mr. Dinan. When I review them, I usually review them by the 
code section, so it would be a (b)(1)(A), (B), which would be 5 
grams or more.
    Chairman Biden. No, I got the ``or more.'' There has to be 
5 grams or more, or you are not in the game.
    Mr. Howard. Senator, if you would forgive us, can we get 
that information----
    Chairman Biden. Yes. I will bet you lunch that the average 
is well above 5.
    Mr. Howard. You're on.
    Chairman Biden. But at any rate, the point was the one 
raised by my friend earlier, unless I misunderstood him, that 
the number of Federal prosecutions for merely possessing 5 
grams is de minimis, compared to the number of prosecutions.
    What is the average possession for prosecutions relating to 
crack cocaine?
    Mr. Howard. The actual number? Again, if you will forgive 
me.
    Chairman Biden. Amount. Amount. I would like you to break 
out every case, even if it takes you awhile. Break out the 
actual number of cases you prosecuted for crack cocaine 
possession this past 12-month period.Secondly, next to each 
case, tell me how much the person you are prosecuting 
possessed. What was the nature of the indictment? For 
possession of 5 grams? What were the actual amounts possessed?
    Before I make up my mind, it goes to the issue, if you 
were, for example, to raise this to 20 grams, and we would be 
eliminating 70 percent of the Federal prosecutions for crack 
cocaine, that has a certain impact. If it would only eliminate 
3 percent of the number of prosecutions in Federal court, that 
would have a different impact.
    Mr. Howard. Senator, if you wouldn't mind, one of the 
things that isn't always reflected in those statistics is the 
fact that we do catch people with 5 grams, sometimes less. 
Because we have mandatory minimums, we don't need to prosecute. 
They end up providing us information that allows us----
    Chairman Biden. I got that. That is a different issue.
    Look, one of the reasons my friends in the police 
organizations don't want this to be changed has nothing to do 
with violence, nothing to do with any of these things. You get 
someone with 5 grams, you can turn them. You can turn them. You 
say, ``Hey, I've got 5 grams.'' They know they're not going to 
get prosecuted in Federal court for 5 grams, but guess what 
they don't know? What they don't know is you hold that and say, 
``Unless you're able to give me the following information, 
unless you're able to do the following things, I've got you on 
a minimum mandatory. You're dead.'' So now I find out where the 
chop shop is in the neighborhood.
    I know a little about this stuff. He knows a lot of about 
this stuff. The audience doesn't know what we're talking about, 
but you all know and we know. Just so you know that we know. 
It's one those kinds of things where it would be helpful if we 
cut through a lot of the malarkey.
    Mr. Howard. Senator, I know you know.
    Chairman Biden. So my point is, I am not in any way 
doubting--for example, it would make police work easier if it 
were a half a gram, if the minimum mandatory was for half a 
gram. A cop gets you for half a gram, OK, turn in your mother.
    [Laughter.]
    But I understand that's a legitimate tool. But I want to 
know what the facts are. So to the extent----
    Mr. Howard. I was just handled something that you have, and 
if you'll look on page 84, table 5, it sets out the number of 
cases for the different districts and the median weight.
    Chairman Biden. Seventy-seven grams, crack cocaine. So you 
had 57 cases; they averaged 77 grams, which is three times what 
the Senator from Alabama is suggesting. Powder cocaine, you had 
eight cases, and the average is 943.5 grams.
    I think I won lunch, but I may be wrong.
    [Laughter.]
    Mr. Howard. Your Honor, I am glad to buy you lunch, but I 
think the point I was trying to make here earlier is still that 
where the mandatory minimum is now gives us a lot of tools in 
order to not only catch this individual, and these are the 
people who are on the street, the ones with the guns, but that 
also gives us--we're not looking at chop shops. We are trying 
to figure out where these drugs are coming from.
    Chairman Biden. Got it.
    Mr. Howard. We have had success with that. If you leave it 
where it is, we think we will continue to have success with 
that.
    Chairman Biden. I got it. Look, I just want you to make the 
case, the point of what you find most valuable in this. It's 
not that if it were raised to 20 grams, you wouldn't be 
prosecuting as many cases. If it's raised to 20 grams, it 
impacts on what I would refer to as the ability to investigate 
other things, which is legitimate.
    Mr. Howard. But for us, it is also----
    Chairman Biden. You know, if the average weight is 77 
grams----
    Mr. Howard. It is not as simple as what we are prosecuting 
and not prosecuting. We have other ways to use our resources. 
When we have people who are on the street, and they are minimum 
amounts they deal with, when we have those people and are able 
to identify them, we know that with the minimum amount, we are 
able to bring them in and compromise them.
    Chairman Biden. That's my point. That's a good argument. 
That's the one you should have made in the first place. Look, 
if you were----
    Mr. Howard. I guess----
    Chairman Biden. The argument you made--this is getting 
useless here, but the argument you made with your chart, you 
showed the chart with the guns on it, and you showed the fact 
that there were little bags, and you showed the fact of 5 
grams, and you indicated that 70 people or whatever the number 
of people, and, ``You know, Senator, if your law passes, you 
bad guy, if your law passes, guess what? You're going to have 
these guys going to 19.9 grams just like they did 4.6 here.''
    Well, let me tell you, if that is the thrust of what you 
are saying, then you are being relatively derelict as a 
prosecutor, because you're not prosecuting people at 5 grams.
    Mr. Howard. Excuse me if I take offense at that.
    Chairman Biden. No, I am making a point. You shouldn't take 
offense. You should just be straight. That's all. I am just 
looking for straight answers. Straight answers.
    But you're a very good trial lawyer. I'd love to try a case 
against you, because I would like to see you before a jury.
    You're really good at the props and the rest, but I want to 
know what the facts are.
    Mr. Howard. These are the facts are.
    Chairman Biden. I want to know what the facts are. The 
facts are that you prosecuted 57 cases, average weight 77 grams 
of crack cocaine----
    Mr. Howard. What I am trying to say is that the prosecution 
isn't all we do in the office.
    Chairman Biden. I got it. You should have said that in your 
statement.
    Mr. Howard. I did say that in my statement.
    Chairman Biden. OK.
    Mr. Howard. It's only the tip of the iceberg of what an 
assistant U.S. attorney does on a day-to-day basis. A lot of it 
is trying to find these people, debrief them, figure out where 
they're getting their drugs, go after those individuals. A lot 
of those cases never end up----
    Chairman Biden. You are saying, if it goes from 5 to 20 
grams, you won't be able to do that as well.
    Mr. Howard. That is exactly what I am saying.
    Chairman Biden. Got it. OK.
    Mr. Howard. OK.
    Chairman Biden. I hope we don't have to have you back 
again.
    [Laughter.]
    I mean, for your sake.
    Mr. Howard. Thank you.
    Chairman Biden. For our sake, I hope we actually are able 
to make some progress here.
    I thank you very much.
    Mr. Howard. Thank you.
    Chairman Biden. All right, may we have order, please?
    Our next panel, I understand they have a time restraint as 
well. I wish we had as much time with you all as the Sentencing 
Commission does.
    But our first witness will be Charles J. Hynes, who has 
served as the district attorney for Kings County in Brooklyn, 
New York, since 1989. A lifelong resident of Brooklyn, he was 
raised--I'm not sure what this has to do with anything, but you 
were raised in Flatbush and received an undergraduate degree 
from St. Johns in Queens, began your legal career in 1963.
    Before being elected to his current position, Mr. Hynes 
served for 2 years as a fire commissioner under Ed Koch and 
then the special State prosecutor for the New York City 
criminal justice system under Governor Mario Cuomo.
    Our second witness is Dr. Charles Schuster, who is 
currently professor at the Department of Psychiatry and 
Behavioral Neuroscience at Wayne State University in Detroit, 
Michigan. He has more than 3 decades of experience working on 
these issues. Dr. Schuster received his undergraduate degree 
from Gettysburg College and master's from the University of New 
Mexico, and Ph.D. from Maryland, all in psychologically. From 
1963 to 1969, he served in the Department of Pharmacology at 
the University of Michigan and worked at the University of 
Chicago from 1968 to 1990. He served as professor of 
psychiatry, pharmacology and psychological sciences and 
behavioral sciences for 18 years, and is director of the Drug 
Abuse Research Center for 14 years.
    Our third witness is William Graham Otis. Mr. Otis has been 
adjunct professor of law at George Mason University since 1997.
    I do that, too. It's fun isn't it, being an adjunct 
professor?
    He currently serves as consultant for the Office of the 
Secretary of Energy. Mr. Otis is a graduate of the University 
of North Carolina. He has worked extensively on sentencing 
issues. He is a member of the Attorney General's Advisory 
Subcommittee on Sentencing Guidelines. From 1988 to 1999, he 
was a member of the American Bar Association National 
Convention on Sentencing Guidelines.
    We welcome all of you here. I will put your entire bios in 
the record.
    Dr. Schuster, I understand you have a time constraint. With 
the permission of the other two witnesses, why don't we let you 
testify first?
    Then, Senator, if you would, you could proceed with 
questions for Dr. Schuster, if you have any.
    The same time will elapse, but we will get the doctor to 
his plane.
    Doctor, the floor is yours.

     STATEMENT OF CHARLES SCHUSTER, PROFESSOR, WAYNE STATE 
                 UNIVERSITY, DETROIT, MICHIGAN

    Mr. Schuster. Thank you very much, Senator Biden.
    I was interested in your statement at the beginning 
regarding your role in writing the legislation that we are 
reviewing here today. At that time, I was the director of the 
National Institute on Drug Abuse and appeared before you and 
various congressional committees when the crack epidemic hit 
the United States, to express my great alarm about the public 
health implications of this new form of cocaine use.
    My concern about it was primarily because I had done 
research previously, while at the University of Chicago, 
studying the addictiveness of various routes of administration 
of cocaine--intravenous, for example, versus intranasal. I 
found that when cocaine is administered in a form that its 
actions are extremely prompt, rapid and intense, that it is 
much more euphoric, it is much more seductive, it is much more 
addicting.
    We know on the basis of national statistics that this is 
true, that individuals who use drugs intravenously, 
experimenting with that that way, are much more likely to move 
on to addictive use with all the consequences of that.
    There was a form of smoked cocaine prior to crack, but it 
involved an incredibly elaborate extraction procedure, which 
simply was not practical. When crack cocaine came along, we 
rapidly established that it had the same seductive properties 
as intravenous cocaine but without the necessity of putting a 
needle in your arm. The proportion of our population, 
particularly of our youth, who were willing a smoke a drug, 
because of their experience with marijuana, is obviously much 
greater than the proportion of our youth who would put a needle 
in their arm.
    Since I felt very strongly that the seductive and addictive 
properties of crack cocaine and intravenous cocaine were 
comparable, I was alarmed that the public health impact would 
be much greater because of the large proportion of the 
population that would be at risk for abusing crack.
    Well, I think that it is absolutely true, and it remains 
true. However, I also must say that there are some reasons that 
I think that I oppose, on scientific grounds, the current 
disparity between the sentencing of individuals when we talk 
about the difference between 500 grams of powder cocaine and 
500 grams of crack cocaine.
    You showed us a bag of sugar. That bag of sugar can be used 
for somewhere between 10,416 and 15,000 intravenous doses of 
cocaine. The crack cocaine vial that you showed us could at the 
most result in 200 doses.
    Now, I could stop here I think, because I think we would 
all agree that the public health implications, the social 
implications of the distribution of between 10,000 and 15,000 
doses of intravenous cocaine or, for that matter, 5,000 to 
7,000 of intranasal, snorted, cocaine, compared to the 
distribution and the use of 50 to 200 crack cocaine doses is 
astronomically different, both in terms of the damage to the 
individuals who use this drug, in terms of the frequency, the 
amount that they can get. Secondly, the fact that the total 
public health impact of this great difference in the number of 
doses that would be available on the streets, with all of the 
associated crime, criminal activities, et cetera, that would be 
associated with the far greater distribution spread of the 
powder cocaine.
    I guess the other thing that bothers me is that I know from 
my friends who are chemists that that 500 grams of powder 
cocaine can be converted into crack cocaine in about 30 
minutes, and you're going to get about 440 grams of crack. 
Well, I hate to say it, but if you arrest someone or if you 
stop someone and they have 499 grams of powder in their pocket, 
you don't know that within the next half hour they are not 
going to stop in anybody's kitchen who happens to have 
bicarbonate of soda, which is baking soda, and some hot water 
and some pans, and you can cook up crack in a very, very short 
period of time. So I do not know where it is going to go, 
whether it is going to be used as it is or whether it is going 
to be converted.
    When the issue of violence is brought up, I run treatment 
programs and I live in the city of Detroit. I know about 
violence, and I know about crack cocaine use and the violence 
associated with it. I would also say, however, that I don't see 
any distinction, in the city of Detroit at least, between the 
violence associated with heroin distribution and crack cocaine 
distribution.
    My friends who are into this from the criminological 
viewpoint tell me that, early on, the increased violence with 
crack was because of the failure of the maturation of the 
distribution system, so there were no monopolies, so there was 
competition. In the heroin business, it is more of a monopoly, 
and, therefore, there is less competition, and, therefore, less 
violence.
    But that is not a statement that I want the crack cocaine 
distribution system to mature; please don't misunderstand that. 
But all I am saying is that I think that the bulk of the 
violence associated with crack cocaine use is because of 
distribution disputes.
    Let me say one thing, however, and that is that there is 
evidence that cocaine, whether it is taken intranasally, 
whether it's take intravenously or whether it's smoked, can, if 
you take it often enough and at high enough doses, produce a 
form of toxic psychosis like a paranoid schizophrenic.
    I have patients who come in who have destroyed the walls in 
their homes and their apartments, looking for where the voices 
are coming from. These people are extremely paranoid. If 
pushed, they can become violent. But I see no evidence that 
this is more likely with smoked cocaine than it is with 
intravenous cocaine.
    Chairman Biden. But it may be more likely with cocaine than 
heroin, for example?
    Mr. Schuster. Yes. Heroin, if anything, diminishes 
aggressiveness, as does marijuana.
    Chairman Biden. I wanted to make sure that I understood the 
point.
    Mr. Schuster. Exactly.
    The different routes of administration of cocaine do not 
differ in terms of their ability to produce this type of toxic 
psychosis.
    I do not want it to appear that snorted cocaine is safe. It 
is not. People become addicted to it. But the fact is that it 
is less addictive because it is slow in its onset. It is less 
toxic because cocaine, in addition to getting to the brain and 
producing all kinds of changes in brain chemistry, also causes 
vasoconstriction. It shuts down the blood supply, so if you 
snort cocaine, it closes down the blood vessels that have to 
absorb the cocaine from your nasal mucosal. So the amount that 
you can get in is much less than if you smoke it or inject it. 
That is one of the reasons why it is less addicting and why it 
is less toxic in terms of its consequences.
    But the bottom line here is that the evidence that we have 
from pharmacology and from science is that smoked cocaine 
produces, dose per dose, its potency, about two-thirds of the 
effect of intravenous cocaine. So if you take 32 milligrams of 
intravenous cocaine, it takes about 50 milligrams in crack 
powder to produce the same blood levels and the same effect. So 
it less efficient.
    Nevertheless, as was pointed out, and this is something 
that is extremely important, powder cocaine, to distribute 32 
milligrams would be very impractical. It's a tiny, little 
quantity. You shake it up with bicarbonate of soda, you make it 
into crack, and it then becomes easy to distribute it in unit 
doses.
    In fact, crack cocaine, if you do the multiplication, is 
more costly per kilogram than powder cocaine. It's just that 
many people can't go out and buy the quantity that powder 
cocaine is sold in, whereas they can afford a crack cocaine 
rock for $3 to $5.
    All of these differences that we see are primarily not 
pharmacological. They are related to distribution networks. 
They are related to the form in which it is sold.
    But I remain convinced that the population at risk for 
becoming addicted to a smoked drug is simply much greater than 
that for using a drug intravenously. Therefore, I think that we 
need to retain some disparity in terms of the penalties 
associated with crack cocaine versus powder cocaine. But I 
think that the 100 to 1 ratio, when you talk about 10,000 to 
15,000 doses intravenously with 500 grams of powder, and 50 to 
200 at the most doses in 5 grams of crack cocaine, I just don't 
see how anyone can rationally say that those two are equal in 
terms of their impact on public health or, for that matter, the 
social consequences.
    [The prepared statement of Mr. Schuster appears as a 
submission for the record.]
    Chairman Biden. Doctor, I thank you very much. I thank you 
for your historical perspective. I think you did testify before 
my committee back then.
    I want to reiterate the point that you made, because I 
think it is important in terms of whether or not we are being 
fair or unfair. The overwhelming consensus of the 
pharmacological community, the medical community, the 
psychiatric community, was the point that you made.
    We are seeing, I would respectfully suggest, the same thing 
happen with heroin. As the purity of heroin has gone up, the 
use of heroin has increased significantly. But it is not 
because the purity has gone up and people inject it. It is 
because now you can smoke it. Now you can smoke it.
    You have in my State teenage kids, who would no more in 9th 
grade think of putting a needle in their arm, as their first 
adventure are literally smoking heroin, because now the 
purity--it used to be called ``chasing the dragon'' back at the 
turn of the century.
    I think the most devastating aspect, and the reason why 
some disparity should remain, I would argue that crack cocaine 
use is a gigantic contributor to AIDS.
    Mr. Schuster. That's right.
    Chairman Biden. People say, ``How does that contribute to 
AIDS?''
    No one believed me on this, so about 12 years ago I took a 
group of Senators and some press up to a street in south 
Philadelphia. I stood on a corner across from a two-story 
building that was a walkup. I wanted to show them a very 
disturbing sight to make the point.
    There was a young woman. You would see a man walk up the 
stairs. You would see her standing and the man standing. You 
would see her disappear; the man stand. You would see him 
leave. She was engaging in oral sex with him.
    She would then get paid with a nickel hit of crack and 
binge on it. She would wait, and you would see another man come 
up the stairs 15 minutes later.
    What is it, 1.7 seconds, 1.8 seconds, this euphoric high? I 
used to know this cold.
    You also find a lot of these young women into prostitution, 
because that's how their pimps pay them. That is how they are 
paid.
    It stuns people to realize that it is not just intravenous 
drug needles that are being shared that are spreading AIDS. It 
is this.
    Mr. Schuster. You are absolutely right. I would only say 
one thing, Senator, and that is that yes, heroin is smoked, but 
it is even more likely these days that it is snorted. The 
purity of it is such that snorting it----
    Chairman Biden. Valid point.
    Mr. Schuster. Better than 50 percent of people coming into 
my methadone maintenance clinics now are not injecting it; they 
are snorting it.
    Smoking heroin is more difficult than converting into a----
    Chairman Biden. The point I guess I was really trying to 
make, and I thank you for the elaboration, is that you don't 
have to inject it intravenously when it is 100 percent or 90 
percent pure, like it is in the streets of Philadelphia.
    Mr. Schuster. That's correct.
    Chairman Biden. My staff points out that crack takes 19 
seconds to reach the brain. That wasn't the point I was making. 
I was making the point of how long the euphoria lasts after.
    Mr. Schuster. The crash, if I may say, it is almost like a 
square wave. You go up very quickly, and you come down very 
quickly, increasing the likelihood that you want to get back up 
again.
    Chairman Biden. Are parachutes still a big deal, where they 
would lace it with heroin, to be able to make that down less 
dramatic?
    Mr. Schuster. Yes. Probably 60 percent of the people who 
come in for methadone maintenance treatment in the city of 
Detroit also use cocaine. So it's difficult to say which came 
first, but the fact is that it is very commonly----
    Chairman Biden. Polyabuse is the norm rather than the 
exception.
    Mr. Schuster. Absolutely. Absolutely.
    Chairman Biden. Well, I have a number of questions for you, 
but I know that your schedule it tight. I want to yield the 
remainder of the time to my friend from Alabama, who knows a 
great deal about this.
    Senator Sessions. In your professional opinion, and you 
have treated a lot of addicts----
    Mr. Schuster. Yes.
    Senator Sessions [continuing]. And seen them up close, 
there is a greater danger from crack, but it does not rise to 
the level that current laws have in terms of punishment?
    Mr. Schuster. What I would say, Senator, is that the 
individual's risk for intravenous cocaine use and for crack 
cocaine are very comparable. However, the proportion of our 
population, the total public health impact of crack use, is 
greater because more people are willing to smoke a drug than 
put a needle in their arm. Probably less than 10 percent of the 
people who use cocaine inject it, and this is for a variety 
reasons. AIDS is one of them.
    But I am saying that, for the individual, if they start 
injecting it, the likelihood they are going to go on to 
addiction is comparable to if they start smoking it. It is just 
that far fewer people are willing to start injecting drugs.
    Senator Sessions. Well, that is basically the difference, 
that it goes straight into the bloodstream from the lungs and 
straight to the brain.
    Mr. Schuster. Absolutely. All of those things happen so 
rapidly that it is very difficult for us to find a difference 
between intravenous and smoked, except people's reports that 
smoked may come on even faster than when you take the drug 
intravenously, because it goes to the lungs and the next 
heartbeat sends it up to the brain.
    Senator Sessions. If someone snorts cocaine over a period 
of time and smokes crack, isn't it true that you get addicted 
quicker with the crack than with snorting cocaine----
    Mr. Schuster. Correct. That is correct.
    Senator Sessions [continuing]. For the reasons you have 
described?
    Mr. Schuster. That is correct.
    Senator Sessions. I think it is a more dangerous drug.
    But looking at this chart that the Sentencing Commission 
had, under the Sessions-Hatch bill, we would have an increase 
in the powder a bit, and we would have a drop from 95 months to 
118 months for crack. I don't think that is an extreme 
undermining of the crack penalties.
    We have to remember, a lot of people don't, but I know you 
know, Mr. Chairman, under the new laws that you helped pass, 
and I was a member of this body, there is no parole in Federal 
court, so 118 months is 10 years without parole. If you get 120 
months in most State courts, they will serve a third of that.
    It is a very, very significant sentence. We are talking 
about 5 years without parole under the current law for the mere 
possession of 5 grams of crack, which I don't think there is a 
State in America that has as tough a sentence as that.
    I just think that we are getting this thing back into the 
right balance, and we need to get it back into the right 
balance.
    Thank you, Mr. Chairman.
    Chairman Biden. I have one question. Is the reason why 
crack cocaine is more addictive than snorted cocaine because of 
the payoff for the user? That is, you get a higher, quicker 
high than you do the other way?
    Mr. Schuster. Correct. Correct.
    Chairman Biden. It is not so much the property of the 
cocaine. It is how it gets to the brain.
    Mr. Schuster. It is how it gets there. Once it gets to the 
brain----
    Chairman Biden. Same impact.
    Mr. Schuster. Cocaine is cocaine.
    Chairman Biden. I know that sounds silly for me to ask the 
question, but that gets confusing in this debate.
    I think the compelling point you made is that, if the 
dealer is arrested with this, the street person arrested with 
this bag, and the street person arrested with this vial, you 
don't know whether this is going to end up in 100 vials of this 
or 200 vials of this. You just don't know.
    I guess what we have to ask the prosecutors is whether we 
have any sense how much this is sold on the street for purposes 
of conversion, as opposed to purposes of dividing this up, in 
effect, and selling lines to folks who are going to take it 
home, put it on a little mirror and snort it.
    I am not asking you that, doctor. You may have anecdotal 
evidence based on your patient list, but I do not know.
    Mr. Schuster. I think I was referring more to the upper 
levels of distribution, where 500 grams of powder would more 
likely be brought into a community for conversion into crack in 
the form of powder because it is less bulky.
    Chairman Biden. I am told by my staff, who was a Federal 
prosecutor himself, in D.C., about 80 percent of all powder 
gets cooked into crack. So if someone gets picked up on a D.C. 
street with this, there is an 80 percent chance it is going to 
be moved to crack anyway. Yet, if you get this bag and this 
vial, you end up having the same exposure.
    At any rate, I truly appreciate your time, doctor, and your 
willingness to continue to work with us.
    I admire, and I mean this sincerely, your professional 
commitment to stay involved in trying to deal with the scourge 
of drug abuse that we have in the country. I thank you for 
always being available.
    Mr. Schuster. Thank you.
    Chairman Biden. Now, how about if we go to you Mr. Hynes? 
Then we will go to you, Mr. Otis.

STATEMENT OF CHARLES J. HYNES, DISTRICT ATTORNEY, KINGS COUNTY, 
                            NEW YORK

    Mr. Hynes. Thank you, Mr. Chairman. It is good to be with 
you.
    It is good to see you again, Senator Sessions. We met at 
the conference last year.
    I want to thank you for the opportunity to talk about this 
very important criminal point. Mr. Chairman, I had the pleasure 
of talking to your excellent staff the last couple of days. I 
would like to introduce two of mine.
    My counsel, Anne Swern, is the director of our Drug 
Treatment Alternative to Prison Program, and Hillel Hoffman is 
our legislative director.
    Just by way of background, I represent 2.5 million people 
in Brooklyn, New York. We are the largest county in the State. 
We have 62 counties. We are the seventh largest county in the 
country.
    There was a time when we became the fifth most violent 
municipality per capita in the United States, and I tell you 
about that because we had the toughest drug laws in the United 
States at the time, and they did not seem to be helping us.
    But I am here for a couple of reasons that I would like to 
touch upon for a moment. As a State prosecutor, I prosecute 
under so-called Rockefeller drug laws.
    Our history with drug enforcement parallels the sections 
that you dealt with today in the U.S. Code, 841, 844 and 961. I 
have no doubt, Mr. Chairman--I have great respect for you; I 
have followed your career--that you passed this amendment when 
you did because of the sheer horror you had of the crack 
epidemic, and we had the same problem in 1988.
    The Rockefeller drug laws have multiple life sentences, and 
that is why they are reputed to be among the toughest drug laws 
in the country. For example, the 5 grams that you are 
discussing here today would not necessarily, the first time, 
lead to a jail sentence. You probably would get probation. If 
you got arrested again, though, regardless of what the weight 
was, as a second felony offender, it was bye-bye.
    While the Rockefeller drug laws are less severe in cases of 
lower weights on the first offense, both the Federal statutes 
and Rockefeller laws have also caused me concern, because of 
the disturbing disparities as they apply to minority 
defendants.
    The second point I would like to deal with is that I 
believe there is a place for mandatory sentences. It has to do 
with mandatory treatment alternatives.
    The Rockefeller drug laws, for example, impose severe 
penalties for the possession of 4 ounces of crack cocaine or 
the sale of 2 ounces, up to 15 years in prison. It is this 
mandatory sentence that has caused a great deal of controversy 
in New York State, because it has resulted in drug mules and 
other middle-level people receiving very long prison sentences.
    In a typical case in Brooklyn, a middle-level drug dealer 
is someone who sells in ounces, not kilos.
    I was at a meeting with Governor Rockefeller and his 
counsel the day he announced the Rockefeller drug laws in 1973. 
I was in charge of the rackets bureau in Brooklyn. He was 
convinced that we were going to sweep off the streets the kilo 
sellers. That, frankly, didn't happen.
    But after 17 years of the Rockefeller drug laws, by 1990, 
we had become the fifth most violent municipality in the 
country. One out of every 16 of our 2.5 million people--men, 
women and children--were victims of serious violent crime.
    For example, we had 765 murders in 1990 in Brooklyn. The 
most disturbing figure, I guess, is in 1991, 151 of our 
children were killed in Brooklyn; 129 were shot to death.
    I understand it, in 1995, when this Congress and President 
Clinton were reluctant to change the mandatory 5-year minimum 
out of concern for the devastating effect it was still having 
on communities.
    But just as the passage of time has given us in New York 
State, a new perspective about the Rockefeller drug laws, in my 
judgment, effective prosecution of our drug laws must be 
accomplished with fundamental fairness to all defendants, and 
that is why I support the bills that you have before you today.
    The statistic of 85 percent people of color serving time, 
or 85 percent of the crack offenders in Federal custody are 
African-American, nearly 10 percent Hispanic, that correlates 
with what we have in New York State. It may shock you as it 
does me that 94 percent of our 19,000 defendants who are there 
for low-level drug possession and drug sales are people of 
color. Three thousand and one-hundred women in New York State, 
mostly people of color, are in prison for low-level drug sales 
or possession.
    Now, I respectfully suggest, Mr. Chairman, and this is not 
news to you, that this racial disparity cannot be ignored in 
the administration of either State or Federal justice systems.
    I was speaking to another Howard the other day, Paul 
Howard. He is the district attorney of Fulton County, Georgia. 
He is the first African-American elected to that position. He 
said,

          ``Will you tell that committee for me that I go around town 
        saying, `It ain't me that's putting your people in jail for the 
        5 grams. That's the Feds.' ''

    I said, ``You know, Paul, that's what we have to say too.''
    When we pick juries, we probe with the voir dire on their 
attitudes toward the disparity of sentencing. That is another 
reason that I am pleased that you invited me to testify.
    Chairman Biden. For the record, why do you do that? Why do 
you probe?
    Mr. Hynes. Because it is fundamental that many people of 
color have had lousy experience not only in the execution of 
the drug laws but in dealing with some police officers, and you 
have to get them talking about their attitudes with respect to 
both issues in order to get a fair jury.
    Let me be very clear, by supporting your proposal, it 
doesn't mean for a moment that I think that possession and sale 
of drugs is something that should be handled less than 
seriously. I would throw away the key on people who are drug 
sellers. There is no plea bargaining for drug sellers, drug 
traffickers. I don't care what the amount is, if they are not 
addicted. There is no plea bargaining for sociopaths as well.
    But I believe that there is another important reason for 
mandatory sentences. It has allowed me in New York State to 
have a very, very successful program called the Drug Treatment 
Alternative to Prison. We started that program in 1990. We 
permit chronic drug offenders who sell drugs to support their 
habit a second chance to straighten out their life, if they go 
to residential drug treatment for 15 to 24 months.
    I want to emphasize, this is a coercive prosecution-run 
program. We decide who gets into the program. We reject two-
thirds of those people who apply. We have a guilty plea of 
typically 3 to 6 years in State prison. If they leave the 
reservation, we go out and grab them, and we are successful at 
98 percent, getting them within 9 days. We execute the sentence 
and they go upstate.
    We point with pride though that 900 offenders have gone 
through DTAP; 606 have graduated. They have been trained for 
jobs. They have jobs. They are paying taxes. Three hundred and 
eight are still in treatment.
    Our graduates have saved New York State taxpayers $23 
million in economic benefits by lowering health, welfare and 
recidivism costs and by becoming taxpayers themselves.The 
recidivism rate is one-half for our DTAP graduates, as compared 
to those who were eligible who turned us down and decided to go 
to prison instead.
    Our 1-year retention rate is 80 percent. That is because it 
is coercive, and that is because there is job training and job 
placement.
    A couple of weeks ago, Asa Hutchinson, the DEA 
Administrator, came down to Brooklyn and was our keynote 
speaker at out annual DTAP graduation. I have got to tell you, 
if you asked him his experience, he would explain that he was 
visibly moved by the graduates that we had, and one kid in 
particular who is 11 years old, thanking us for bringing her 
father back to life.
    He, of course, was one of the cosponsors in Congress, with 
the companion to your S. 304. I know you, Mr. Chairman, and 
other members of this committee, have supported a drug 
treatment alternative to prison that allows State prosecutors 
all over this country to have the same success rate we have 
had.
    Chairman Biden. By the way, it just takes your DTAP 
program. This is the guy, though, who has been pushing this 
Congress to make sure to try to get us in to have drug 
treatment in prisons. One of the things we found out is that, 
which surprised me, I must tell you, 15 years ago--I always 
thought, unless you wanted to be in treatment, it didn't work. 
There is no distinction between being coerced into treatment 
and having to stay there and voluntarily waking up one morning 
and say, ``I want to go to treatment.'' That is an interesting 
phenomenon. The leader in that effort to try to get the States, 
conditioned upon Federal moneys, to have drug treatment 
programs in their prisons has been the Senator from Alabama.
    Mr. Hynes. Yes, he is. I certainly acknowledge that.
    I have always maintained, finally, it makes no sense to 
warehouse nonviolent drug abusers in prison for long periods of 
time only to have them come back to their neighborhood, and 
they go to jail on the installment plan for life.
    It is my hope that this Congress will enact the DTAP 
legislation this year. But in any event, whatever legislative 
changes are made, I respectfully suggest to you that you tie it 
to mandated drug treatment.
    Thank you for the opportunity.
    [The prepared statement of Mr. Hynes appears as a 
submission for the record.]
    Chairman Biden. Thank you very much.
    Mr. Otis.

  STATEMENT OF WILLIAM GRAHAM OTIS, ADJUNCT PROFESSOR OF LAW, 
    GEORGE MASON UNIVERSITY LAW SCHOOL, ALEXANDRIA, VIRGINIA

    Mr. Otis. Thank you, Mr. Chairman.
    As befits someone who is the last witness in a hearing of 
this kind, I will attempt to brief.
    Chairman Biden. That's all right. You have been kind and 
patient with us; we will be patient with you.
    Mr. Otis. Thank you very much, Mr. Chairman and Senator 
Sessions.
    I am happy that you have given me the opportunity to talk 
with you today about this quite important subject.
    I agree with the Sentencing Commission that the present 
disparity between crack and powder sentencing should be 
addressed. But I do not believe that the answer lies in giving 
a break to crack dealers.
    The answer, which the Senate correctly adopted a little 
more than 2 years ago in an amendment to the bankruptcy bill, 
is to raise powder sentences by a modest amount.
    At the outset, I want to say that reasonable minds can 
differ on this question. The commission's proposal is sincere 
and conscientious. The same is true of the more balanced 
proposal sponsored by you, Senator Sessions, and Senator Hatch, 
whose work to safeguard our citizens I think is a benchmark of 
public service, both here in the Senate and in your tenure as 
U.S. attorney.
    With all respect, I believe that in this instance the 
better view is to maintain in full effect the crack sentences 
we have now. This is so for several reasons. The first is that 
they are a major success story.
    I think, Chairman Biden, you don't give yourself enough 
credit--and I am perfectly sincere in that--for the legislation 
that you helped to craft and that has given us these sentences.
    Fifteen years ago, the crack wars were breeding endemic 
violence in our country. Once safe and stable neighborhoods had 
become free-fire zones. That has changed. We have not entirely 
won the war on crack, but our progress has been considerable.
    As statutory minimum sentencing at the current levels began 
to kick in, dealers who in the past would have been back on the 
street instead have remained our official guests. As they stay 
put behind bars, the rate of violent crime, so much of which 
was generated by crack gangs, has decreased every year since at 
least 1994.
    There are people alive today, probably dozens and perhaps 
hundreds, who would have been casualties of the criminals we 
have kept locked up under these supposedly excessive sentences. 
At the minimum, it would be a precipitous gamble to change a 
sentencing regimen we know has helped keep us safer from drug 
dependency and overdose deaths, not to mention gunplay and 
murder--until we have a better idea than we do now of how much 
crime will result from bringing down these sentences.
    Second, much of the impetus for change in this area is the 
idea that crack sentences are racially discriminatory. But I 
believe that is misconceived. It is true that about 85 percent 
of offenders sentenced in the Federal system are black. But it 
is also true that only 1 percent of blacks are among the 
thousands of defendants sentenced for methamphetamine 
offensives, which likewise carry a heavy mandatory minimum 
sentence. Indeed, distribution of a particular quantity of 
methamphetamine carries the same mandatory sentence as 
distribution of that same quantity of crack.
    This tough meth sentencing is not explained by the system 
having decided to be particularly harsh with those dealers 
because the vast majority of them are not African-American, any 
more than the toughness of crack sentences is explained by the 
fact that the majority are.
    The reason for the gravity of these sentences for both 
drugs is that in both instances Congress was properly concerned 
about the rapid spread of a dangerous and addictive substance 
whose distribution is so strongly associated with violence. 
That concern remains valid.
    The large percentage of African-Americans sentenced for 
dealing crack does not change the fact that today, as at the 
time the mandatory penalties were enacted, crack is an 
exceedingly harmful drug that doesn't know or care who is 
dealing it or who is victimized by it.
    Protecting all citizens from it continues to warrant the 
minimum sentences Congress has prescribed and that are working. 
It would be not justice but a burlesque of justice for society 
to chip away at sentences we know have served us well for 
reasons unrelated to the danger the drug poses.
    This would be true in any event, but it is particularly 
true, for sliding back to the old days of relatively light 
crack sentences is most likely to damage the group of black 
citizens on whose behalf it is supposedly undertaken.
    If we are to have a sentencing system engineered with one 
eye on race, which in my view we should not, at least we should 
keep that eye on the great majority of black people who want 
nothing more than their right to live in peace and safety, and 
who I am quite sure do not what crack-dealing criminals of any 
race to take that right away from them.
    Finally, the commission's proposal sends exactly the wrong 
message. As one prominent citizen noted in opposing an earlier 
commission plan to lower crack sentences, and I am quoting now, 
``Trafficking in crack and the violence it fosters has a 
devastating impact on communities across America, especially 
inner-city communities. Tough penalties for crack trafficking 
are required because of the effect on individuals and families, 
related gang activity, turf battles, and other violence. We 
cannot stop now. We have to send a constant message to our 
children that drugs are illegal and dangerous, and that 
penalties for drug dealing are severe. I am not going to let 
anyone who peddles drugs get the idea that the cost of doing 
business is going down.''
    These words of President Clinton were true when he spoke 
them a few years ago, and they are true today.
    If we are to reduce the disparity in sentencing, let's do 
it without letting anyone who deals in crack get the idea that 
the cost of his business is going down.
    [The prepared statement of Mr. Otis appears as a submission 
for the record.]
    Chairman Biden. Thank you very much.
    I yield to the Senator.
    Senator Sessions. Well, I thank both of you.
    Mr. Otis, thank you for your words.
    Mr. Hynes, good to see you again.
    These are important issues. I think the number of drug 
cases prosecuted in Federal court would represent, Mr. Hynes, 
would you say less than 5 percent of all drug cases?
    Mr. Hynes. I think that is accurate, Senator. We had 6,000 
felonies last year--2,150 were felony. But the vast majority of 
the 4,000 were drug-related, meaning that the people were 
addicted. But you are right, it is very, very small.
    Senator Sessions. Federal courts handle a small, pretty 
handpicked number of cases that they believe, for some reason 
or another, merit Federal prosecution rather than prosecution 
in State court.
    Mr. Hynes. They're the Mercedes.
    [Laughter.]
    Senator Sessions. That is spoken like a true State 
prosecutor.
    [Laughter.]
    The point of all that, for me, is the cases that are 
getting prosecuted in Federal court I think are not normally 
the small cases, unless they are caught up in a web of----
    Mr. Hynes. As you suggest, when you were a U.S. attorney, 
you would take down a whole gang. It didn't matter what the 
rates were.
    Senator Sessions. Sometimes all you have is that.
    Also, Mr. Otis, we were very successful. Apparently, some 
judges are not as favorable to using relevant conduct. You 
catch a person selling 5 grams of crack, and then you would 
prove that they were on that street corner and selling 5 grams 
every day for the last month, and the judge would give higher 
sentences based on that.
    I guess all I am saying, Mr. Chairman, is that this thing 
is really complex. It is hard to get numbers that you can live 
with and understand, just having been there, having seen it, 
recognizing two countervailing issues. One is that it does 
diminish somewhat, but I don't think much, the power of the 
prosecutor to plea bargain. I think it does have the potential, 
but I hope does not, to send a signal that somehow we are less 
serious about drugs. I think that would be a tragedy. I know 
you are concerned about that. I know that the Attorney General 
is concerned about that.
    I talked to Larry Thompson, the deputy attorney general, 
and he wants to send the signal that we are getting tough on 
drugs and we are cracking down on drugs.
    But I think that we cannot allow those fears to keep us 
from creating a tough, justifiable sentencing system. I believe 
that what we have offered is in that range, and I appreciate 
you having this hearing.
    Chairman Biden. Thank you.
    To reinforce Mr. Hynes' point, in the Federal district, the 
eastern district that takes in his county, which, I might add, 
is 2.5 times bigger than my State, there were 44 cases brought 
for crack cocaine and the average weight in grams was 362.4.
    I was looking down this list of all 93 districts, and I am 
not confident what point it makes, but there are only a few 
jurisdictions where the gram weight was at 5-something or 
below. They were the Virgin Islands, New Hampshire, eastern 
Washington, and Alaska. It goes from 1.9 grams in the Virgin 
Islands to 5,000 grams in Northern Oklahoma, as the weights for 
which there was a Federal prosecution.
    I acknowledge, as the Senator said, this is a complex 
issue. It doesn't mean there were plea bargains along the way. 
It doesn't mean there wasn't other information justifiably 
extracted or cooperation gleaned.
    But I think the interesting thing that I would like to look 
at relative to the Senator's legislation is your suggestion, 
Mr. Hynes, of, in effect, diversion here to treatment. I don't 
know whether the Senator is interested in that. This is not a 
request. Maybe we could sit down and figure out whether that is 
appropriate, because I think you make a fairly compelling 
point.
    I will make sure that the Office of the District Attorney 
report, the 11th Annual Report of 2001, is made part of the 
record.
    [The information is being retained in committee files.]
    Mr. Hynes. Thank you, Senator.
    Chairman Biden. I think the point that Mr. Otis makes is 
worth making again. I guess the reason I am making it is, since 
I am the guy who drafted the law, I want to make it clear, 
which I hope that everyone understands in any community, that 
it was not meant to be discriminatory. For, as you point out, 
Mr. Otis, methamphetamine, which is the scourge of the Midwest 
and rural communities right now, is a circumstance where less 
than 5 percent, I think it is closer to less than 2 percent, of 
those who go to jail for relatively harsh penalties for 
methamphetamine possession are African-American. So it was not 
intended.
    But the thing that I keep coming back to is some rationale 
for at least a marginally harsher penalty for crack is if 80 
percent of the people on the streets of D.C.--and I expect it 
is the same in your district.
    I would ask you, if they have this much powder cocaine, 80 
percent of the time they are going to cook it into stuff that 
ends up a couple hundred times more than this vial. It takes 
this much in your possession to go to jail for this much, or to 
be able to be coerced or bargained or whatever. If you took 
half this amount, the penalty for half this amount doesn't 
equal this amount. Your 500 grams cooks up 450 grams, and what 
is that? Well, if you cut this in half, we are talking about 
225 grams, and this is 5 grams.
    You go to jail for possessing this for a heck of a lot 
longer than you go to jail for possessing half of this. That is 
the part that I have difficulty with, not that this is not more 
addictive, because more pleasure is given.
    I once asked, when I got started in this back in the 
1970s--I am going to say something outrageous: I think I have 
spoken to every drug expert of renown in the last 20 years. We 
were talking to two leading scientists at Yale University. I 
asked them to explain to me what makes somebody become addicted 
and someone else not addicted to any drug, and particularly 
talking about cocaine, which is described as a lightening storm 
in the brain. There is no single receptor that is affected by 
cocaine, as we all know. That is why it is more difficult to 
treat, more difficult to deal with.
    I asked the question and he gave me an example I will not 
give here, because it will be misunderstood by some. But he 
gave me an example, he said, if the first time you engage in an 
activity, and the result is one that does not make you feel 
really good in the first instance--whether it is premarital sex 
or whether it is cocaine or whether it is smoking a cigar--your 
likelihood of going back to doing that again, and desiring to 
want to do that again, is less likely. It is pretty much 
response-driven. There are a lot more complications as well, 
but that is the single best predictor.
    The reason why this is so addictive, if you know how to 
smoke--and some of us don't. I have never smoked in my life. 
Not good or bad, I just wouldn't know how to put a cigarette to 
my mouth.
    But if you know how to smoke and inhale, then you are going 
to get a good feeling. If you know how to snort and you don't 
get it right, and it gets in your eye instead of in your 
nostrils, you may not.
    Mr. Hynes. Can I add just one point?
    Chairman Biden. Yes.
    Mr. Hynes. You get caught in Brooklyn with that thing in 
your left hand, I don't care if you are a stone-cold junkie, 
you'll go to prison for life. There is no DTAP for that stuff. 
You go to prison for life under the Rockefeller drug laws.
    Senator Sessions. First offense?
    Mr. Hynes. Yes, sir. You bet.
    Chairman Biden. Well, Mr. Otis, maybe you should hang out 
with Mr. Hynes.
    [Laughter.]
    But I understand the point you are making.
    But at any rate, that is my biggest problem, and I think 
the problem my friend has.
    Unless we can logically explain and rationalize to the 
public--black, white, Hispanic, anyone--that there is a 
rationale, an implicit fairness to what we are doing, then it, 
I think, breeds a contempt for the system and for the law.
    Again, I know this sounds this awful, sounds self-serving, 
I literally, not jokingly, by myself with my staff, I am the 
guy who drafted the Sentencing Commission law. I mean, it 
wasn't a joint project. It wasn't with 50 other Senators. It 
was in my office. Then I went out and tried to sell it.
    I am not a guy who thinks we shouldn't have tough 
sentences. I am the guy who insisted that we eliminate 
probation and parole in the system.
    But I just have trouble rationalizing this, unrelated to 
race, unrelated to anything, just logic.
    Mr. Otis. Senator, may I respond to that?
    Chairman Biden. Please.
    Mr. Otis. What you did, when you originally wrote this 
legislation and wrote these penalties into the law, has saved 
lives.
    Chairman Biden. I don't doubt that.
    Mr. Otis. You are responsible and should take credit for 
the saving of those lives.
    What is of most concern to me is that we don't know, we 
haven't had a study, the Sentencing Commission has not yet 
looked into this, of what is going to be the effect on these 
lifesaving sentences that you wrote. What is going to be the 
effect if we start bringing them down? At least, it seems to 
me, we ought to have a better idea than we do now, because we 
know that these sentences--that people who would have been out 
on the streets with this gunplay have been in prison. There 
hasn't been the gunplay, and people are alive today because of 
the sentences you wrote. I want to make sure that their lives 
continue to be protected, unless we know for sure that bringing 
down these sentences is not going to have the effect that I am 
afraid it will.
    Chairman Biden. Let me conclude what I have to say, and 
since it is the Senator's bill, I will yield to him to close 
the hearing.
    I think that's what they attempted to do by this chart. 
They attempted to indicate, as a practical matter as to how the 
laws are in fact enforced at the Federal level, what the impact 
would be if the Sentencing Commission change took place, which 
goes a little further than, in effect--it's slightly different 
than what my friend from Alabama is suggesting.
    As my friend from Alabama suggested, the fact that someone 
would go to jail for 8 years versus 10 years, that is the 
reduction we are talking about, is not likely to be--188 months 
versus 95 months--that would be the effect on the average case.
    The reason that I read these numbers, why they are 
compelling, if in fact there was evidence that Federal 
prosecutors were in fact plying the Federal law, and using the 
5 gram minimum as the basis for the bulk of their prosecutions, 
that would lead me maybe to a different conclusion.
    I don't know what the average is here, but I bet the 
average--and Samuel Clemens once said that all generalizations 
are false including this one. But if you took a look at the 
average, it is probably in the range of 100 grams. But my point 
is that it is way above 5 grams.
    What my friend is suggesting here seems to me to have no 
not only material impact, but no even minor impact on the 
efficacy of the law as it is used now to look people up who are 
bad guys who are costing people their lives by selling it to 
them and/or being shot in the process.
    Mr. Hynes. That is what Paul Howard and I talked about. You 
see, no one in my community or in the great county of Fulton 
would complain about people going to jail for what you have in 
your left hand. They wouldn't complain a bit. But they get very 
upset over disparate sentences given to yuppies as opposed to 
people in the inner city. They get very upset.
    Chairman Biden. I have no further comments.
    Senator Sessions. What we are trying to do, I think we want 
to be able to walk into any audience in America and say we 
considered this. Our Sentencing Guidelines, if they are going 
to be run from Congress, and they are being run from Congress, 
if the Congress is going to do it, we ought to listen and be 
able to defend them.
    There may be a few small cases at the margin where these 
changes might affect the prosecutor. But for the routine case, 
I think there are plenty of tools there. If we get a little 
enhancement on powder, which as you note, Mr. Chairman, can be 
converted readily to crack, I think that would also help us on 
the fairness issue, which I believe is important.
    When you stand before a jury, as I did many times--over 
half of the jury routinely in my district would be minority 
jurors. They want to do the right thing. They want to believe 
that the system they are supporting is correct.
    If we aren't careful, that faith could be undermined and 
lost. I think this would be a step in the right direction. I 
don't believe it would undermine our legitimate ability to 
crack down on drugs, particularly crack.
    I believe we are making some progress. I think it is time 
to get it done.
    Mr. Hynes. Senator, if I can persuade you on mandated drug 
treatment, I would be happy to come and see you.
    Senator Sessions. I will just say this: I talked to Mr. 
Schuster just before you came in during the break, and I 
certainly believe that intervention, treatment and/or close 
monitoring of people who have a drug problem works. It's not a 
cure-all. Everybody doesn't come out perfectly clean and never 
commit another crime, but you get less than you would 
otherwise. We ought to do more of it.
    If we can't afford treatment for every person in America 
who wants it, we can afford these intensive monitoring programs 
that can help. I am open to that. I think that is probably a 
different issue. I know Senator Hatch is concerned about it and 
has some legislation on it. I would be willing to talk to you 
about it.
    Chairman Biden. Let me close by asking unanimous consent 
here that several things be placed in the record.
    Senator Grassley has two documents and a half-dozen letters 
to the committee from prominent individuals, who support 
reducing the 100 to 1 ratio.
    Chairman Biden. Secondly, I would ask unanimous consent 
that we attach to the record support of the direction my friend 
from Alabama wishes to go from Joe Califano; from Jim 
McDonough, Governor Jeb Bush's drug czar; from Wayne Budd, a 
Ronald Reagan and Bush appointee; a supportive letter from 
Federal judges who were formerly U.S. attorneys; a supportive 
letter from Dr. Herb Kleger, who was the first guy to occupy 
the position with Bill Bennett; and a supportive letter from 
the College on Problems of Drug Dependence.
    Without objection, that will be placed in the record.
    Mr. Otis, I thank you for your testimony.
    Charlie, thank you for coming down. I know you are a busy 
man, so we appreciate it.
    We are adjourned.
    [Whereupon, at 1:39 p.m., the subcommittee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in the committee 
files.]

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