[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





    CRACKED JUSTICE--ADDRESSING THE UNFAIRNESS IN COCAINE SENTENCING

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 26, 2008

                               __________

                           Serial No. 110-134

                               __________

         Printed for the use of the Committee on the Judiciary







      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

MAXINE WATERS, California            LOUIE GOHMERT, Texas
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio

                      Bobby Vassar, Chief Counsel
                    Michael Volkov, Minority Counsel





























                            C O N T E N T S

                              ----------                              

                           FEBRUARY 26, 2008

                                                                   Page

                           OPENING STATEMENT

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary......................................................     5
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     5

                               WITNESSES

The Honorable Charles B. Rangel, a Representative in Congress 
  from the State of New York
  Oral Testimony.................................................     6
  Prepared Statement.............................................     7
The Honorable Roscoe G. Bartlett, a Representative in Congress 
  from the State of Maryland
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
The Honorable Reggie B. Walton, Judge, U.S. District Court for 
  the District of Columbia, Washington, DC
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19
The Honorable Ricardo H. Hinojosa, Chair, United States 
  Sentencing Commission, Washington, DC
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33
Ms. Gretchen Shappert, U.S. Attorney for the Western District of 
  North Carolina, U.S. Department of Justice, Washington, DC
  Oral Testimony.................................................    45
  Prepared Statement.............................................    48
Mr. Joseph I. Cassilly, State's Attorney for Harford County and 
  President-Elect of the National District Attorneys Association, 
  Bel Air, MD
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61
Mr. Michael Short, former offender, Maryland
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68
Mr. Michael Nachmanoff, Federal Public Defender for the Eastern 
  District of Virginia, Alexandria, VA
  Oral Testimony.................................................    69
  Prepared Statement.............................................    72

                                APPENDIX

Material Submitted for the Hearing Record........................   111














 
    CRACKED JUSTICE--ADDRESSING THE UNFAIRNESS IN COCAINE SENTENCING

                              ----------                              


                       TUESDAY, FEBRUARY 26, 2008

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:05 p.m., in 
room 2237, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Scott, Nadler, Jackson 
Lee, Smith, Gohmert, and Coble.
    Staff present: Bobby Vassar, Subcommittee Chief Counsel; 
Ameer Gopalani, Majority Counsel; Rachel King, Majority 
Counsel; Mario Dispenza (Fellow), ATF Detailee; Veronica 
Eligan, Majority Professional Staff Member; Caroline Lynch, 
Minority Counsel; and Kelsey Whitlock, Minority Staff 
Assistant.
    Mr. Scott. Good afternoon. The Committee will now come to 
order. I am pleased to welcome you today to the hearing before 
the Subcommittee on Crime, Terrorism, and Homeland Security 
entitled ``Cracked Justice--Addressing the Unfairness in 
Cocaine Sentencing.'' We will be discussing legislation 
currently pending before the House, including H.R. 79, H.R. 
460, H.R. 4545 and H.R. 5035.
    It appears that most Members of Congress, as well as the 
public, agree that the current disparity in crack and powder 
cocaine penalties is not justified and that it should be fixed. 
However, there is not yet a clear consensus on what that fix 
should be. Science shows that there is no significant 
pharmacological difference between the two forms of the same 
drug, and there is no credible evidence or history to show a 
justification for either the current or any other disparity in 
penalties for the two forms of cocaine.
    Method of ingesting a drug does not seem to be a 
justification for different penalties. Whether smoked, snorted 
or injected, penalties for no other drugs are based on the 
manner of ingestion.
    Neither violence nor any other history of use between the 
forms seems to justify the difference in penalties. The 
Sentencing Commission reports show that 90 percent of crack 
transactions do not involve violence, compared to 94 percent of 
powder transactions that do not. Such a small difference can 
easily be handled by enhancing penalties based on the violence 
of a particular case, whether crack or powder, rather than 
generally based only on the form of the drug.
    The original basis for the penalty differentiation was 
neither science, evidence or history based, but political 
bidding based on who could be the toughest on the crack 
epidemic that was believed to be sweeping America several years 
ago. There is certainly no sound basis for a 5-year mandatory 
minimum sentence for the mere possession of five grams of 
crack, when you could get probation for possessing a ton of 
powder, because mandatory minimum sentences for powder only 
apply to distribution, not possession cases.
    Mandatory minimum sentences generally have been shown to be 
ineffective. Indeed, mandatory minimums have been studied 
extensively and have been found to distort any rational 
sentencing process to the point of violating common sense. It 
discriminates in application against minorities and wastes 
money, when compared to traditional sentencing approaches.
    While there is no real difference between crack and powder 
cocaine, the distinction has real consequences. More than 80 
percent of the people convicted in Federal court for crack 
offenses are African Americans and are serving shockingly long 
sentences, while people who have committed more serious 
offenses are serving shorter ones. African American communities 
have been hit hard, and many people have lost confidence in our 
legal system.
    The U.S. Sentencing Commission has released at least four 
reports in the last 14 years on this subject, each time urging 
Congress to amend the cocaine sentencing laws. So far these 
exhortations have fallen on deaf ears. I am hoping that this 
hearing will be the beginning of the coming to a consensus 
about the best way to solve the problem.
    There are many bills that will be considered, and what I 
have introduced is H.R. 5035, The Fairness in Cocaine 
Sentencing Act of 2008. It is a simple bill that goes the 
furthest in addressing the problems in the current cocaine 
sentencing laws.
    First, it eliminates the legal distinction between crack 
and powder cocaine, treating them as the same drug, which they 
are. The bill also eliminates all mandatory minimum sentences 
for cocaine offenses. And lastly, it authorizes funding for 
state and Federal drug courts, which have both proven to be 
effective in preventing recidivism and saving money, when 
compared to longer periods of incarceration.
    In the late 1980's and 1990's, states' court systems began 
to develop drug courts. Instead of locking everybody up, these 
courts decided to try something different. Drug offenders were 
placed on probation, with the condition that they enter into a 
drug treatment program. They were allowed to stay in their 
communities with their families, keeping their jobs and being 
productive members of society, while the drug court judges kept 
a close on them, offering them help as needed and providing 
sanctions when appropriate.
    Drug courts are working. Studies have repeatedly shown that 
they are not only reducing crime, but saving money, and it is 
imperative that these drug courts continue to operate. My bill 
provides continued financial support for state drug courts, and 
it authorizes money for Federal drug courts, where the need 
exists.
    Finally, my bill eliminates all mandatory minimum sentences 
for cocaine offenses, handing back the sentencing decisions to 
judges, who are best equipped to determine the appropriate 
sentence in individual cases. Judges know how to do their jobs. 
We need to let them do it.
    Indeed, mandatory minimum sentences should be eliminated in 
all instances, as the Federal Judicial Conference has often 
asked us to do. And I can't think of a better place to start 
than with the cocaine sentencing laws.
    I would hope that Members would join in supporting H.R. 
5035 and that today will be beginning of the end of two decades 
of legal discrimination.
    It is my pleasure now to recognize the esteemed Ranking 
Member of the Subcommittee, the Honorable Louie Gohmert, who 
represents Texas' first congressional district.
    Mr. Gohmert. Thank you, Chairman Scott. I want to thank you 
for scheduling this hearing on this important matter.
    Some perceive that the different treatment of cocaine and 
powdered cocaine has an unfair impact on African American 
offenders. On the other hand, some claim that more severe 
treatment of crack cocaine offenders is justified because of 
the higher rate of violence associated with crack cocaine 
trafficking. Some with no knowledge of the history of this 
disparate or distinctly treatment for crack and powder cocaine 
have even claimed that it has its roots in racial prejudice. 
However, just the opposite appears to be true.
    Over 20 years ago Congress enacted statutory mandatory 
minimum sentences for various illegal drugs, including a 5-year 
mandatory minimum sentence for trafficking five grams of crack 
cocaine and 500 grams of powder and a 10-year mandatory minimum 
sentence for trafficking 50 grams of crack cocaine and five 
kilograms of powder cocaine.
    The 100:1 ratio between crack cocaine and powder cocaine 
was enacted in response to an epidemic of violence across 
America associated with the trafficking of crack cocaine. 
Democratic leaders were the primary sponsors of Federal drug 
sentencing policies, including this dissimilar treatment of 
crack cocaine and powder cocaine.
    In fact, one of the Members who was on the Committee back 
during debate of this matter 20 years ago recalled that some 
Members of Congress were individually challenged that failure 
to pass the bill with the tougher sentences for crack would 
potentially be racist for not caring enough about African 
American communities to make the penalty for spreading such 
poison in their midst far tougher than powder cocaine.
    In 1986, 17 of 21 African American House members had co-
sponsored the bill making this disparate treatment a part of 
the sentencing. Congressman Rangel was so effective in his 
advocacy for this bill--now being condemned by many--that at 
the signing ceremony, President Reagan called attention to 
Congressman Rangel as one of the ``real champions in the battle 
to get this legislation through Congress.''
    In some ways these drug sentencing policies have had a 
significant impact in reducing violence in our cities, but 
rather than viewing criminal offenses through rational eyes, 
one important consideration by the Sentencing Commission is the 
data and studies showing that crack cocaine is associated with 
violence to a greater degree than most other controlled 
substances.
    In fiscal year 2002, 23.1 percent of all Federal crack 
offenders possessed a weapon--almost double that of powder 
cocaine at 12.1 percent rate. In fiscal year 2005, weapon 
involvement for crack cocaine offenders was 27.8 percent versus 
13.6 percent for powder cocaine offenders.
    In addition, the percentage of crack defendants at criminal 
history category six--those offenders with long criminal 
records--increased to 23.5 percent in fiscal year 2005 from the 
20.2 percent figure in fiscal year 2002. A much smaller 
percentage of powder cocaine defendants were involved with a 
weapon or weren't at criminal history category six in both 2002 
and 2005.
    The Justice Department's views on this issue are of 
particular interest, since Federal prosecutors are on the 
frontlines, fighting the war against drug related violence in 
our communities. Attorney General Mukasey has raised serious 
and significant concerns with respect to the Sentencing 
Commission's retroactivity decision, noting that ``nearly 1,600 
convicted crack dealers, many of them violent gang members, 
will be eligible for immediate release into communities 
nationwide.''
    I share the attorney general's concern about the U.S. 
Sentencing Commission has reached in amendments to the Federal 
sentencing guidelines and its decision to apply those changes 
retroactively to incarcerated defendants. As a former judge and 
chief justice, I am vigilantly reluctant to legislatively 
overturn the past judgment of judges or juries, who were in the 
best position to consider the offense and the offender.
    I support a re-examination of Federal drug sentencing laws 
and do believe this is worth a bipartisan re-examination of 
these laws during this session. To me the role of Congress 
should be to set a range of punishment for different offenses 
or offenses with different elements, then allow the courts to 
set the sentence within that range. Such constitutional 
obligations should not necessarily be delegated, in my opinion, 
to a Sentencing Commission.
    I would also submit that there is another lesson to be 
learned here. Even when Members of Congress are encouraged to 
create different treatment for any matter based on a racial 
consideration of any kind, even when such encouragement is 
coming from members of that race, it should require heightened 
scrutiny. Race simply should not be a reason for a call to 
action for treating anyone or any offense differently.
    In the present case, perhaps the proper solution is to make 
sentence ranges the same for cocaine and crack, but add other 
elements that would increase the range, such as possession of a 
weapon during the crime or actual violence during the crime or 
violence with a deadly weapon actually used during the crime.
    With that, Mr. Chairman, we appreciate the witnesses being 
here today and look forward to their input. And I look forward 
to the continuing discussion of this issue by our Committee. 
Thank you.
    Mr. Scott. Thank you--if other Members have statements they 
would like to give.
    The first panel will consist of Members----
    Mr. Gohmert. Mr. Chairman.
    Mr. Scott. The gentleman from Michigan?
    The gentleman from Michigan, Chairman of the full 
Committee, Mr. Conyers?
    Mr. Conyers. I wanted to welcome the witnesses, Chairman 
Scott, a formidable array of distinguished people. I look 
forward to this important hearing.
    Is there a seat for Chairman Rangel here? Oh, yes.
    Over the past 20 years, our Nation's laws with respect to 
cocaine sentencing have resulted in a penal system unjust, 
racially disparate, and arguably in violation of the 
Constitution's equal protection clause. Most of us, even 
including the Administration, agree that the current system is 
unfair and that change is needed, but what change?
    Crack cocaine offenders, almost all of whom are racial 
minorities, receive sentences of up to eight times longer than 
those convicted for the same amount of cocaine in powder form. 
That is well understood. And so this is the first time in over 
a decade that Congress can enact much needed reform.
    And that is what makes 10 of you as important, thoughtful 
witnesses so important this afternoon.
    The Supreme Court has provided impetus, and various Members 
have introduced bills to reform the system, including four 
bills we will hear about today. I would like to see these 
reforms take shape, as I conclude, in three ways.
    We must dispel the myths associated with the current 
system. We must do away with all mandatory minimum sentences 
that exist in the current system. And finally, we need to offer 
innovative solutions that are proven to work.
    The Ranking Member of the Crime Subcommittee--Judge 
Gohmert--and Chairman Scott have authorized an ambitious bill, 
which would not only eliminate mandatory minimum sentences, but 
authorize money for the state courts.
    I ask unanimous consent to insert the rest of my statement 
in the record. And I thank you very much, Chairman Scott.
    Mr. Scott. Thank you.
    I recognize the gentleman from Texas----
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Scott [continuing]. Member of the full Committee.
    Mr. Smith. Thank you, Mr. Chairman.
    I also want to thank the Ranking Member of the Subcommittee 
for his insightful opening statement just a couple of minutes 
ago. And my statement is not going to go the full 5 minutes, so 
we will not be late getting to the vote.
    Last May the U.S. Sentencing Commission voted to reduce 
crack cocaine sentences by an average of 16 months. As a 
result, next Monday, March 3, more than 1,500 Federal crack 
cocaine offenders will be eligible for release from prison. 
Over three-quarters of these criminals are repeat offenders, 
and 98 possessed firearms during the commission of their 
crimes.
    The early release of these individuals poses a significant 
threat to innocent Americans. According to the commission's own 
data, 80 percent of those eligible for release next Monday have 
been convicted of other crimes. Research by the commission also 
shows that those with the most serious criminal records--142 
offenders--will likely commit another crime after they are 
released.
    Congress and the American people also should be able to 
find out how many violent repeat offenders, who may be released 
early next week, commit additional crimes. This data is 
critical to understanding the impact of the commission's 
reduction of crack cocaine sentences.
    Finally, many crack offenders eligible for release next 
week will not be able to participate in pre-release programs 
designed to help them transition back to their communities and 
so reduce recidivism. This is astounding, in light of the broad 
bipartisan support in the House for the Second Chance Act, 
which funds extensive new re-entry programs for offenders.
    The Department of Justice has called on Congress to enact 
legislation to reverse the ruling, particularly its application 
to violent repeat offenders. Congress should act before next 
Monday to prevent the release of numerous violent offenders 
into our communities. If Congress does not act, it is certain 
that innocent children and adults will unnecessarily become the 
victims of violent crime. Congress should stop that from 
happening or assume responsibility for the pain and suffering 
caused by these preventable crimes.
    I thank you, Mr. Chairman, and I will yield back.
    Mr. Scott. We have a vote scheduled. We have a couple of 
minutes, if----
    Mr. Rangel, do you want to make your statement now?

TESTIMONY OF THE HONORABLE CHARLES B. RANGEL, A REPRESENTATIVE 
             IN CONGRESS FROM THE STATE OF NEW YORK

    Mr. Rangel. Extremely grateful, because the facts are 
abundantly clear. And I am so glad that your Committee and your 
Subcommittee and the full Committee have seen fit to air the 
injustices that exist in our system. I am a former Federal 
prosecutor, and believe me, in order for a law to be respected, 
it has to be consistent, and it has to make sense.
    There is no question in my mind that those people who 
thought that people involved with possession of crack should be 
sentenced at higher thought--that it would in some way serve 
the community better. Clearly, that is not the case, and we 
find that to take the discretion in determining who goes to 
jail and who doesn't go to jail is showing lacks of confidence 
in our judges.
    I can tell you that anyone who knows Federal judges will 
tell you that in many of the mandatory cases, judges have 
refused to convict. They just refuse to be pushed around. They 
refuse to give someone 5 years and use the excuse of reasonable 
doubt just because they believe the person should have gotten 1 
year or should have gotten a reprimand or should have been 
punished in some way. But to tell them that to decide that a 
reasonable doubt, that they have to lose their common sense in 
judgment in terms of sending someone to jail for 5 or 10 years 
to me doesn't make a lot of sense.
    So I introduced a bill that eliminates the mandatory and 
takes away the disparity between how cocaine is sold, whether 
it is crack or whether it is in powder.
    And I am so glad, Mr. Chairman, that you have your bill, 
and Sheila Jackson Lee.
    And I only hope that once we get our common sense back that 
we take a look at the entire question of mandatory sentences. 
If we don't trust our judges, then just put in different sets 
of facts, let a machine come out and give a sentence and get 
away from all of this having to decide what is in the best 
interest of justice.
    So thank you for this opportunity, and I will do whatever I 
can and go wherever I can to bring equity and fairness to the 
system. And this is really done by just being fair.
    [The prepared statement of Mr. Rangel follows:]
Prepared Statement of the Honorable Charles B. Rangel, a Representative 
                 in Congress from the State of New York
    Good afternoon Chairman and members of the subcommittee. Thank you 
for inviting me to speak at a hearing of such import and consequence, 
one addressing the injustice of stringent crack cocaine sentencing.
    The drumbeat for change has never been louder: Unfair sentences for 
low-level crack cocaine offenders just have got to stop. Over the past 
few months, authorities in the other branches have gotten the message. 
Last year, the Supreme Court restored judicial discretion and 
flexibility in sentencing, and the Sentencing Commission retroactively 
lowered its sky-high sentencing guidelines. It is now up to my 
colleagues in Congress to follow suit and do away with the 20-year 
legacy of an unjust and nonsensical drug policy. My bill, H.R. 460, The 
Crack Cocaine Equitable Sentencing Act, would do just that, by 
eliminating the mandatory minimum for simple possession of crack or 
powder and reducing all other cocaine sentencing disparities to equal 
levels.
    At the time these stiff penalties were enacted, they were seen as 
the well-intentioned cure to a frightening epidemic. The sudden rise of 
this new street drug, crack cocaine, impelled besieged lawmakers to 
slap the same 5-year sentence for possessing 500 grams of powder as it 
did for 5 grams of crack. But instead of reducing drug addiction and 
crime, those laws have swelled our prisons, fueled a racial divide that 
jails young Black men at disproportionate rates, left a generation of 
children fatherless, and driven up the costs of a justice system 
focused more on harsh punishment than rehabilitation.
    No one condones the suffering inflicted on society by drug abuse 
and crime. But neither should we accept the needless devastation caused 
by disproportionately harsh drug laws. The numbers paint a grim 
picture: 500,000 of this country's 2.2 million prisoners are locked up 
for drug crimes, the majority on petty charges with no history of 
violence or high-level drug dealing. Caught in a cycle of poverty, 
crime and recidivism, it's no wonder that more than half of African 
American, male high school drop-outs have spent time in jail.
    There are more effective and useful alternatives: treatment, for 
one, and better still, rescuing at-risk youth before they drop out of 
school and succumb to the allure of drugs and street life. To me, the 
growing incidents of dropouts, drugs, and crime are national security 
issues, threatening our ability to compete in the global economy. We 
cannot shortchange this, or future, generations and threaten our 
competitive standing in the world by allowing failing schools, sky-high 
dropout rates, an unskilled workforce, poverty, and hopelessness. We 
cannot afford to cede ground to countries like India and China, by 
allowing any of our youngsters to go astray while our standing in the 
world dwindles.
    The policy of targeting crack cocaine users and sellers has 
diverted law enforcement's focus away from incarcerating drug kingpins 
who supply them. It seems to me there could be a more judicious 
allocation of resources at both ends of the drug pipeline: Choke off 
the flow of drugs before they reach small-time thugs on our streets and 
rehabilitate more of those who slip through the cracks. For them, the 
stigma of a prison sentence is a ticket to a career of crime. Jailing 
nonviolent offenders at these rates does little more than turn stupid 
kids who make stupid mistakes into expert criminals.
    The Bush administration is attempting to blunt the Sentencing 
Commission's decision, relying, once more, on a politics of fear to 
stunt our progress. Attorney General Mukasey has suggested that the 
``sudden influx of criminals from federal prison into your communities 
could lead to a surge in new victims as a tragic, but predictable, 
result.'' That fear is not borne out of by the facts. Most of the 
prisoners eligible for sentence reductions are low-level dealers, 
addicts, carriers. Every individual release or reduction is subject to 
judicial review, the process will be staggered over 30 years, and $1 
billion in prison costs will be spared.
    The status quo in federal sentencing has proven anathema to racial 
justice, in effect if not intent: Blacks account for 38 percent of drug 
arrests and 59 percent of convictions, although they are only 13 
percent of drug users. Excessively punitive mandatory minimums are 
fueling that racial gap, targeting minority communities where crack 
cocaine is the drug of choice. The disparity is 100-to-1--and an 
average difference of 40 months in jail time--for two drugs experts say 
have no significant differences. Well, here's one significant 
difference: Over 80 percent of sentenced crack offenders are Black.
    Correcting uneven punishment for nearly identical offenses has 
nothing to do with clemency for crack traffickers and users. It has 
everything to do with equality before the law. The smartest approach 
employs good sense; the most moral approach employs compassion. The 
very best approach employs both

    Mr. Scott. Thank you very much, Mr. Rangel.
    You are a Member of the Subcommittee, so you will be coming 
back anyway. Could we accommodate Mr. Bartlett at this time? 
Thank you.

TESTIMONY OF THE HONORABLE ROSCOE G. BARTLETT, A REPRESENTATIVE 
             IN CONGRESS FROM THE STATE OF MARYLAND

    Mr. Bartlett. Thank you very much for the opportunity to 
share my views with you today concerning the 100:1 crack versus 
powder cocaine disparity. I recognize in 2002 that this ratio 
that had been adopted in haste and driven by fear was not 
justified by the facts. I thought that on its face it was 
clearly discriminatory and not something that a rational 
society should be supporting.
    I recognize that this disparity, which discriminated 
against lower income individuals, who more often used crack, 
was not justified by the effects of crack compared to powder 
cocaine, and I introduced a bill to address it. Since then, 
more evidence has accumulated to strengthen my conviction. I am 
here today to specifically welcome and support the position of 
the National District Attorneys Association that sentencing 
disparity should be reduced or eliminated. I welcome this 
hearing. I hope that Congress will follow the recommendations 
of numerous authorities and approve reducing or eliminating 
this ratio.
    This past December the U.S. Sentencing Commission 
unanimously voted to reduce retroactively lengthy sentences 
meted out to thousands of people convicted of crack cocaine 
related offenses over the past two decades. That same month the 
U.S. Supreme Court ruled that a Federal judge hearing a crack 
cocaine case may consider the disparity between the guidelines 
treatment of crack and powder offenses.
    I would like to note that we represent one person out of 22 
in the world, and out of the three million prisoners in the 
world, we have 2.1 million of them. On its face that would 
appear to indicate that we are far and away the most lawless 
society in the world. I don't think that is true, and I think 
that what this really mandates is a fresh look at our criminal 
justice system and why one out of every 150 of us is in jail. 
That doesn't appear in any other major country in the world.
    Most of these decisions reflect a growing concern that 
there should not be a 100:1 ratio in the amounts of powder 
cocaine and crack cocaine that trigger mandatory minimum 
sentences. We now have more and better information than we did 
in the past in order to assess the ratio and make adjustments. 
Any changes to ratio must be based on empirical data.
    I am a scientist and have a Ph.D. in human physiology, 
where there is substantially more evidence that we have now 
that a 100:1 unequal treatment is not justified. Our laws 
should reflect the evidence of harm to society. If we argue the 
justice ratio, we would be clinging to fear instead of facts.
    There should be bipartisan support for the adjustment in 
the ratio. The law places great value in maintaining precedent, 
but precedent based on fear should not be protected.
    I am also an engineer. As an engineer I know that in order 
to make improvements, we should be in a constant state of re-
examination. The past good faith reasons for the 100:1 
disparity cannot be justified by the current evidence that has 
accumulated. Politics and the law must catch up to scientific 
evidence.
    In 2002 I introduced a bill to eliminate the disparity in 
sentencing between crack and powder cocaine with regard to 
trafficking, possession, importation and exportation of such 
substances by changing the applicable amounts for powder 
cocaine to those currently applicable for crack cocaine.
    I introduced it several times since then. Now we have even 
more substantial evidence and support for addressing 
disparities in the law regarding crack and powder cocaine than 
we did then. Joe Cassilly, state's attorney for Harford County 
in my district, will address the evidence and put forth reasons 
that a certain myth should be dispelled.
    A 100:1 ratio cannot be justified by evidence. Congress 
should not support the status quo. I hope that my colleagues 
will not allow the pursuit to prevent the potential adoption of 
a compromise that would reduce the unjustified current 100:1 
disparate ratio of the treatment of crack compared to powder 
cocaine.
    Thank you very much for your efforts on behalf of the 
Congress to address the goal of justice in our society. Thank 
you.
    [The prepared statement of Mr. Bartlett follows:]
       Prepared Statement of the Honorable Roscoe G. Bartlett, a 
         Representative in Congress from the State of Maryland



    Mr. Scott. Thank you very much.
    We have about 5 minutes. We have several votes, so it will 
be approximately 20 to 30 minutes before we reconvene, but we 
will reconvene as soon as we can possibly get back.
    [Recess.]
    Mr. Scott. The Subcommittee will come to order. We had a 
couple of procedural votes that we did not expect, so I 
apologize for the delay. When we recessed, we were about to 
hear the testimony from the representative of the 18th district 
of Texas, a Member of the Judiciary Committee and the sponsor 
of H.R. 4545, Ms. Jackson Lee.

TESTIMONY OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE 
              IN CONGRESS FROM THE STATE OF TEXAS

    Ms. Jackson Lee. Thank you very much, Mr. Chairman and to 
the Ranking Member. Thank you for this crucial hearing and as 
well an opportunity to understand one of the parables in the 
bible, ``Blessed are the merciful, for they shall receive 
mercy.''
    For many in the criminal justice system, it is believed 
that mercy is not the defining aspect of criminal justice. But 
I offer to you a pictorial perspective of Lady Justice and the 
scales of justice. That pictorial depiction suggests that in 
fact a balance in justice is important.
    So clearly a 100:1 ratio in the disparities between crack 
cocaine sentencing is not just. It is not merciful. It is not 
real. And I am delighted to be joined by Congressman Bartlett 
and Congressman Rangel, which shows a bipartisan support in 
opposition to what has been an unjust system.
    This legacy started with Len Bias's death in the 1980's, an 
outstanding athlete. I remember the enormous amount of sympathy 
poured out for this young, bright man who had the potential of 
making millions of dollars as a Boston Celtic. Congress then 
moved to address his life and his legacy through what has now 
become a very harsh example of what and how you treat young 
people who may have gone astray of the law.
    My legislation, hopefully, will put us back on track and 
really captures the theme that refutes much of the statements 
that have been made that suggest that we are trying to let 
criminals out. That is not what this legislation intends to do.
    It intends to fix a broken system, because what is really 
needed is that this system is bogged down by low-level cases 
and in fact the Justice Department, the U.S. Attorneys offices 
take pride in how many notches in their belt they can show, how 
many small-time convictions. But yet the big potatoes, the 
kingpins, the cartels are left to their own devices.
    Mr. Chairman, let me acknowledge a good friend of mine that 
is in the audience, Keith Branch from Houston, Texas, who has 
worked for years in juvenile probation and has seen first-hand 
the unbalanced scales of justice.
    And so today I hope to briefly articulate the simple 
premise of this legislation. And again, I thank you for 
convening the hearing dealing with the disparity in sentencing 
for possession of powder cocaine and the simple possession of 
crack cocaine.
    In December 2007, I introduced H.R. 4545, the Drug 
Sentencing Reform in Cocaine Kingpin Trafficking Act of 2007, 
so that we may finally eliminate the unjust and unequal Federal 
crack cocaine sentencing disparity in America. The time has 
come to finally right the wrongs created with the original drug 
sentencing legislation that I have mentioned that was passed in 
1986.
    I am glad that this is a companion bill to Senator Biden in 
the Senate, and the deliberations that generated this 
legislation really were premised on the question of balance and 
mercy.
    As a senior Member of the full Judiciary Committee and a 
Member of the Subcommittee on Crime, I have always viewed this 
as a crucial issue. For the last 21 years, we have allowed 
people who have committed similar crimes to serve drastically 
different sentences for what we now know are discredited and 
unsubstantiated differences.
    For the last 21 years, the way we have punished low-level 
crimes for crack cocaine and powder cocaine have been unjust 
and unequal and a waste of the Nation's criminal justice 
resources. Why? Because the kingpins are still running amok.
    In 1986, Congress linked mandatory minimum penalties to 
different drug quantities, which were intended to serve as 
proxies for identifying offenders who were serious traffickers, 
managers of retail drug trafficking, and major traffickers, 
manufacturers or the kingpins who headed drug organizations. It 
did not work.
    Since 1986, the severity of punishment between those 
sentenced for crack cocaine offenses and powder cocaine 
offenses has been extremely disproportionate, a 100:1 ratio to 
be exact. This has resulted in not only an unequal and unjust 
criminal justice system, but also a prison system which is 
overflowing and overburdened with individuals who were not in 
actuality major drug traffickers.
    I agree with Mr. Gohmert. This should not be a racial 
issue. And if those who were experiencing the disparity were 
100 percent Asian, 100 percent Caucasian, 100 percent Latinos, 
I would be just as outraged by this inequity.
    And I think the U.S. Sentencing Commission that recently 
issued a report unanimously and strongly urging the Congress 
to, one, act swiftly to increase the threshold quantities of 
crack cocaine to trigger the 5-and 10-year minimum sentences so 
that Federal resources are focused on major drug traffickers as 
intended in the original 1986 legislation and to repeal the 
mandatory minimum penalty sentence for simple possession, the 
only controlled substance for which there is a mandatory 
minimum for a first time offense of simple possession.
    They themselves recognize that this is not a racial issue, 
even though the burden of sentencing falls upon African 
Americans. It is a justice issue.
    Moreover, numerous reputable studies comparing the usage of 
powder and crack cocaine have shown that there is little 
difference between the two forms of the drug, which 
fundamentally undermines the current quantity-based sentencing 
disparity.
    Accordingly, this legislation is supported by the 
recommendations of the Sentencing Commission and also the U.S. 
Supreme Court decisions--two opinions in the 7-2 decisions in 
early December, restoring the broad authority of Federal 
district court judges to sentence outside the sentencing 
guidelines range and impose shorter and more reasonable prison 
sentences for persons convicted of offenses involving crack 
cocaine.
    However, it does impact on our U.S. Department of Justice 
or the U.S. attorneys, who I believe have publicly said that 
the law is still the law, and they will still prosecute in that 
format.
    In the most high-profile of the cases, Kimbrough v. United 
States, the court held that sentencing judges could sentence 
crack cocaine defendants below the guidelines range to reflect 
a view that crack sentences have been set disproportionately 
high in comparison to cocaine sentencing--again, recognizing 
the disparity.
    Additionally, the U.S. Sentencing Commission has been 
urging Congress to drop its 100:1 crack-to-cocaine ratio 
approach, and the court held that judges may take into account 
the evolving view that both drugs merit equal treatment when 
calculating prison time.
    It is time for Congress to act. The bill that I have 
offered will eliminate the disparities in cocaine sentencing 
and the current mandatory minimum for simple possession. In 
addition, this bill will increase emphasis on certain 
aggravating and mitigating factors, create an offender drug 
treatment incentive grant program and increase penalties for 
major drug traffickers--what we were originally focused on 
doing.
    As I indicated, this bill is already filed in the Senate. 
Most importantly, this particular legislation will enact the 
measures that the U.S. Sentencing Commission has requested from 
Congress. It is long overdue.
    This legislation will also fundamentally change the way we 
punish drug traffickers. This legislation dramatically 
increases the monetary punishment for those convicted of 
trafficking drugs and at the same time creates grants for 
states to create incentive based treatment programs for low-
level drug offenders. That is the way that we should go.
    Blatant and unjust inequality under the law must end. This 
bill will ensure that those individuals who have violated the 
law will be punished fairly relative to the punishment. We 
cannot allow this injustice to continue, and this bill does not 
let people out without guidelines.
    It is legislation that is balanced and supported by a 
number of organizations, including the Sentencing Project, the 
ACLU, the American Bar Association, the Drug Policy Alliance, 
and the Open Society Policy Center.
    I also want to ensure that this legislation does recognize 
the value of Second Chance.
    Let me conclude, Mr. Chairman, by simply saying that we 
have an enormous burden. There are thousands of individuals 
incarcerated under the unfairness of this system, and I believe 
that in keeping with the tenets expressed by the pictorial 
depiction of Lady Justice, we have failed, and we have not kept 
up with those principles.
    And therefore, this legislation allows us to do so, in 
addition to H.R. 261, which I hope we will have a hearing on, 
that expresses the desire to allow non-violent offenders to be 
released after serving a certain amount of time. It relates to 
the overcrowding of our jails with most of these crack cocaine 
defendants.
    So I ask my colleagues to consider this legislation. I look 
forward to changing the legacy of Len Bias in ensuring that 
there is fairness in our system and as well to ensure that we 
provide rehabilitative measures to those who have lost their 
way in the usage of crack and focus our efforts on ensuring 
that king traffickers are put in jail, but more importantly, 
that we address the drug question in America with mercy.
    With that, I yield back, and I ask that my entire statement 
may be submitted into the record.
    [The prepared statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary
    Thank you, Mr. Chairman, for your leadership in convening today's 
very important hearing on the disparity in sentencing for possession of 
powder cocaine and the simple possession of crack cocaine. I would also 
like to thank the ranking member, the Honorable Louie Gohmert, and 
welcome our panelists. I look forward to their testimony.
    In December 2007, I introduced H.R. 4545 ``The Drug Sentencing 
Reform and Cocaine Kingpin Trafficking Act of 2007'' so that we may 
finally eliminate the unjust and unequal federal crack/cocaine 
sentencing disparity in America. The time has come, to finally right 
the wrongs created with the original drug sentencing legislation in 
1986.
    As a senior Member of the Full Judiciary Committee and a member of 
the Subcommittee on Crime, I have always been an outspoken advocate for 
justice and equality in our criminal justice system. For the last 21 
years, we have allowed people who have committed similar crimes to 
serve drastically different sentences for what we now know are 
discredited and unsubstantiated differences. For the last 21 years, the 
way we have punished low-level crimes for crack cocaine and powder 
cocaine have been unjust and unequal.
    In 1986, Congress linked mandatory minimum penalties to different 
drug quantities, which were intended to serve as proxies for 
identifying offenders who were ``serious'' traffickers (managers of 
retail drug trafficking) and ``major'' traffickers (manufacturers or 
the kingpins who headed drug organizations).
    Since 1986, the severity of punishment between those sentenced for 
crack cocaine offenses and powder cocaine offenses has been extremely 
disproportionate, 100 to 1 ratio to be exact. This has resulted in not 
only an unequal and unjust criminal justice system, but also a prison 
system which is overflowing and overburdened with individuals who were 
not in actuality major drug traffickers.
    The U.S. Sentencing Commission recently issued a report that 
unanimously and strongly urged Congress to: (1) act swiftly to increase 
the threshold quantities of crack necessary to trigger the five- and 
ten-year mandatory minimum sentences so that federal resources are 
focused on major drug traffickers as intended in the original 1986 
legislation; and (2) repeal the mandatory minimum penalty sentence for 
simple possession of crack, the only controlled substance for which 
there is a mandatory minimum for a first time offense of simple 
possession. The Sentencing Commission also unanimously rejected any 
effort to increase penalties for powder since there is no evidence to 
justify any such upward adjustment.
    Moreover, numerous reputable studies comparing the usage of powder 
and crack cocaine have shown that there is little difference between 
the two forms of the drug, which fundamentally undermines the current 
quantity-based sentencing disparity.
    I introduced H.R. 4545 ``The Drug Sentencing Reform and Cocaine 
Kingpin Trafficking Act of 2007'' after the U.S. Supreme Court released 
two opinions in 7-2 decisions in early December 2007. These decisions 
restored the broad authority of federal district court judges to 
sentence outside the Sentencing Guidelines range and impose shorter and 
more reasonable prison sentences for persons convicted of offenses 
involving crack cocaine. In the most high-profile of the cases, 
Kimbrough v. United States, the Court held that sentencing judges could 
sentence crack cocaine defendants below the Guidelines range to reflect 
a view that crack sentences have been set disproportionately high in 
comparison to cocaine sentences.
    Additionally, the U.S. Sentencing Commission has been urging 
Congress to drop its 100-1 crack-to-cocaine ratio approach, and the 
Court held that judges may take into account the evolving view that 
both drugs merit equal treatment when calculating prison time.
    It is time for Congress to act. H.R. 4545 will eliminate the 
disparities in cocaine sentencing and the current mandatory minimum for 
simple possession. In addition, this bill will increase emphasis on 
certain aggravating and mitigating factors, create an offender drug 
treatment incentive grant program and increase penalties for major drug 
traffickers. This bill complements the bill recently introduced in the 
Senate by Senator Biden. Most importantly, this resolution will enact 
the measures that the U.S. Sentencing Commission has requested from 
Congress.
    This legislation will also fundamentally change the way we punish 
drug traffickers. This legislation dramatically increases the monetary 
punishment for those convicted of trafficking drugs at the same time 
creates grants for states to create incentive based treatment programs 
for low-level drug offenders.
    H.R. 4545 amends the Controlled Substances Act and the Controlled 
Substances Import and Export Act to increase the amount of a controlled 
substance or mixture containing a cocaine base (i.e., crack cocaine) 
required for the imposition of mandatory minimum prison terms for crack 
cocaine trafficking to eliminate the sentencing disparity between crack 
and powder cocaine.
    Section 4 of H.R. eliminates the 5-year mandatory minimum prison 
term for first time possession of crack cocaine.
    Section 5 provides increase emphasis on certain aggravating and 
mitigating factors as a means of sentence enhancement.
    Section 6 directs the Attorney General to make grants to improve 
drug treatment to offenders in prison, jails, and juvenile facilities. 
H.R. 4545 authorizes $10 million dollars to carry out drug improvement.
    Section 7 provides grants to demonstration programs to reduce drug 
use among substance abusers. H.R. 4545 authorizes $5 million dollars 
for each of FY08 and 09.
    Section 8 provides emergency authority for the United States 
Sentencing Commission to provide amendments to take effect on the same 
date as the amendments made by this Act.
    Section 9 provides for increased penalties for major drug 
traffickers.
    Lastly, H.R. 4545 has a prospective effective. The amendments made 
by this Act shall apply to any offense committed on or after 180 days 
of enactment of H.R. 4545.
    Blatant and unjust inequality under the law must end. This bill 
will ensure that those individuals who have violated the law will be 
punished fairly relative to the punishment. We cannot allow this 
injustice to continue, and I urge you to support this timely resolution 
which is supported by the Open Society Policy Center, the Sentencing 
Project, the ACLU, the American Bar Association, and the Drug Policy 
Alliance. I also want to thank Senator Biden for introducing the 
companion to this legislation in the Senate earlier this year.
    I would be remiss if I did not mention H.R. 261 that I introduced 
early last year. H.R. 261, is the ``Federal Prison Bureau Nonviolent 
Offender Relief Act of 2007''. This Bill provides for the early release 
of non-violent offenders who have attained the age of at least 45 years 
of age, have never been convicted of a violent crime, have never 
escaped or attempted to escape from incarceration, and have not engaged 
in any violation, involving violent conduct, of institutional 
disciplinary regulations.
    H.R. 261 seeks to ensure that in affording offenders a second 
chance to turn around their lives and contribute to society, ex-
offenders are not too old to take advantage of a second chance to 
redeem themselves. A secondary benefit of H.R. 261 is that it would 
relieve some of the strain on federal, state, and local government 
budgets by reducing considerably government expenditures on warehousing 
prisoners.
    The number of federal inmates has grown from just over 24,000 in 
1980 to 173,739 in 2004. The cost to incarcerate these individuals has 
risen from $330 million to $4.6 billion since 2004. At a time when 
tight budgets have forced many states to consider the early release of 
hundreds of inmates to conserve tax revenue and when our nation's 
Social Security system is in danger of being totally privatized, early 
release is a common-sense option to raise capital.
    There are more people in the prisons of America than there are 
residents in states of Alaska, North Dakota, and Wyoming combined. Over 
one million people have been warehoused for nonviolent, often petty 
crimes.
    The European Union, with a population of 370 million, has one-sixth 
the number of incarcerated persons as we do, and that includes violent 
and nonviolent offenders. This is one third the number of prisoners 
which America, a country with 70 million fewer people, incarcerates for 
nonviolent offenses.
    To be sure, both of these pieces of legislation will bring much 
needed reform to our criminal justice system. We must act with urgency 
and the time is now.
    Thank you, Mr. Chairman. I yield the remainder of my time.

    Mr. Scott. Thank you. Thank you.
    Our second panel begins with Judge Reggie Walton, who 
assumed his position as the United States district court judge 
for the District of Columbia in 2001. He was also appointed by 
President Bush in 2004 to serve as the chairperson of the 
National Prison Rape Elimination Commission, a commission 
created by the United States Congress and tasked with the 
mission of identifying methods to curb the incidence of prison 
rape. He is also a member of the Federal judiciary's criminal 
law committee and as of May 2007 began a 7-year appointment 
with the U.S. Foreign Intelligence Surveillance Act court.
    Our second witness will be Judge Ricardo Hinojosa, who has 
served on the U.S. Sentencing Commission since 2003. He was 
appointed to chair that commission in 2004. Before joining the 
judiciary, he served as an adjunct professor at the University 
of Texas Law School and was a partner in a local law firm.
    Our third witness will be introduced by the gentleman from 
North Carolina.
    Mr. Coble. Thank you, Mr. Chairman. I have been here, there 
and yonder, and thank you for your understanding.
    I am delighted to welcome my fellow North Carolinian, who 
is the United States attorney for the western district of North 
Carolina, Ms. Gretchen Shappert.
    Good to have you with us.
    Thank you, Mr. Chairman.
    Mr. Scott. Thank you. Ms. Shappert is U.S. attorney for the 
western district of North Carolina, served as assistant U.S. 
attorney in the office for 14 years, and before that was an 
assistant district attorney in Mecklenburg County, North 
Carolina, for 2 years.
    Our next witness is Joseph Cassilly, state's attorney for 
Harford County, Maryland, since 1982 and has been re-elected 
six times. He is active in the Maryland State Attorneys 
Association and president elect of the National District 
Attorneys Association and is on the board of directors of that 
organization.
    Our fifth witness is Michael Short, who is one of several 
young men, many of whom have been childhood friends growing up 
in suburban Maryland, who were involved in a crack cocaine 
conspiracy. He was sentenced to 20 years in prison for 
delivering a package containing 63 grams of crack to an 
undercover special agent. After serving 15 years in prison, 
President Bush commuted his sentence in December 2007. While 
incarcerated, he earned his associates degree in business 
management from Park College, graduating in 1995 with a 3.17 
GPA.
    Our last, but not least, will be Michael Nachmanoff, the 
public defender for the eastern district of Virginia. His 
office has 52 employees and represents more than 2,200 
defendants in Federal court every year in Alexandria, Richmond, 
Norfolk and Newport News. He has been with the office since it 
was established 6 years ago. He served as first assistant 
Federal public defender for 3 years and acting public defender 
for 2 years before formally assuming the job as the lead of 
that agency in February of 2007. He had the honor of auguring 
and winning the Kimbrough v. United States case in the U.S. 
Supreme Court, which Ms. Jackson Lee referenced.
    Each of our witnesses' written statements will be entered 
into the record in its entirety, and I ask that each witness 
summarize his or her testimony in 5 minutes or less. And to 
help stay within that time limit, we have lighting devices 
right here and on the desk. When you start with green, go to 
yellow with 1 minute left, and red when the time is up. And we 
would ask you to begin wrapping up.
    Judge Walton?

   TESTIMONY OF THE HONORABLE REGGIE B. WALTON, JUDGE, U.S. 
  DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, WASHINGTON, DC

    Judge Walton. Thank you, Mr. Chairman.
    Members of the Subcommittee, it is an honor to have the 
opportunity to appear before you to address what I believe is 
one of the most important criminal justice issues that this 
country is confronting today.
    As a former prosecutor in the United States attorney's 
office, who vigorously prosecuted cases, and as a judge who is 
not known as being lenient on criminals, I nonetheless believe 
that we have to address what I believe is a pervasive problem 
that is adversely impacting the credibility that many people 
have in our criminal justice system.
    I am proud to be a member of the Federal judiciary and 
proud to be a member of the Judicial Conference, which has 
taken a position in opposition to the 100:1 disparity that now 
exists in reference to crack cocaine.
    I seldom speak out in reference to injustices that exist 
within our system, because I basically believe in our system. I 
believe we have devised the best system that mankind has been 
able to devise, but that doesn't mean there are not 
imperfections, and I believe that the 100:1 disparity is one of 
those problems that needs to be addressed.
    I, too, as Senator Biden indicated when I testified several 
weeks before him, as a member of the first Bush administration 
drug office, took a position in favor of some level of 
disparity between crack and powder cocaine, because, based upon 
the information provided to us at that time, it was believed 
that they were different substances and that they did in fact 
have a different impact as far as addiction rates were 
concerned, the impact they had on the fetus, and the violence 
related to that activity.
    We now know, however, that as far as the chemical makeup of 
powder and crack, they basically are the same substance. We 
know that, in and of themselves, the two are not different as 
it relates to the addiction qualities. We know, however, that 
because crack is smoked, it may have a greater potential 
addiction level, but we know that as far as substances are 
concerned, that they basically are the same.
    And as far as the violence is concerned, yes, there is 
violence related to all drugs, but I don't think there is 
really significant evidence that would suggest that there is a 
significantly greater level of violence related to crack 
cocaine as compared to powder cocaine, PCP and other substances 
that are ravishing many of our communities.
    I think the time has come to address this problem, because 
I think that in many segments of American society, it is felt 
that the system is not fair. It is not good for a system of 
laws when you have people who come at the behest of the court 
system to serve as jurors, who refuse to serve because they 
believe the system is unfair.
    It is not, I think, good for our system to have people 
summoned to come and serve as jurors, who sit on juries and 
refuse to convict, because they believe the system is unfair 
because of this 100:1 disparity.
    I really believe that the time has come to address this 
problem. I am proud to be, as I say, a member of the judiciary, 
and one of the things I find encouraging about our country is 
that historically when we have made mistakes--and we do make 
mistakes; to be human is to make errors--but we have to be big 
enough to admit that we have made errors, and we have to be 
willing to step up to the plate and correct those problemss.
    I have no problem putting people in prison. That is my job. 
And I think when people do crime, they should be punished. But 
I think the punishment has to be fair, and I believe the 
punishment has to be perceived to be fair. The unfortunate 
reality is that there are many people, and many of those people 
exist in African American communities who believe the system is 
not fair.
    I know that these laws were not enacted with racial 
motivation, but people nonetheless believe that there is a 
racial implication underlying what is taking place because of 
the disparity, and I don't, again, think that is good for our 
system of justice.
    So in concluding, I would ask that this Subcommittee and 
the Congress as a whole seriously think about addressing this 
problem, because I think when it is addressed, it will bring 
confidence back into the system of justice that exists in 
America.
    Thank you.
    [The prepared statement of Judge Walton follows:]
          Prepared Statement of the Honorable Roscoe B. Walton




    Mr. Scott. Thank you very much, Judge Walton.
    Judge Hinojosa?

 TESTIMONY OF THE HONORABLE RICARDO H. HINOJOSA, CHAIR, UNITED 
          STATES SENTENCING COMMISSION, WASHINGTON, DC

    Judge Hinojosa. Chairman Scott, Ranking Member and Texas 
Aggie fan Gohmert, Members of the Subcommittee, I appreciate 
the opportunity to appear before you today.
    The United States Sentencing Commission, a bipartisan body, 
has been considering cocaine sentencing issues for a number of 
years and has worked closely with Congress to address the 
sentencing disparity that exists between the penalties for 
powder and crack cocaine offenders.
    Although the commission took action this past year to 
address some of the disparity existing in the sentencing 
guideline penalties for crack cocaine offenses, the commission 
is of the opinion that any comprehensive solution to the 
problem of Federal cocaine sentencing policy requires revision 
of the current statutory penalties and therefore must be 
legislated by Congress.
    The commission encourages Congress to take legislative 
action on this important issue, and it views today's hearing as 
an important step in that process. As you are aware, in May 
2007 the commission issued its fourth report to Congress on 
Federal cocaine sentencing policy. My written statement for 
today's hearing contains highlights from our 2007 report, as 
well as updated preliminary data from fiscal year 2007.
    In the interest of time, I will briefly cover some of the 
information that is contained in the written statement.
    In preliminary fiscal year 2007 data, we see a continuation 
of trends we have seen with respect to crack cocaine and powder 
cocaine offenses. The commission obtained information on 6,175 
powder cocaine cases, which represent approximately 25 percent 
of all drug cases, and 5,239 crack cocaine cases, which 
represent approximately 21 percent of all drug trafficking 
cases.
    Federal crack cocaine offenders have consistently received 
substantially longer sentences than powder cocaine offenders. 
The average sentence length for crack cocaine offenders was 
approximately 129 months, whereas for powder cocaine offenders 
it was 86 months.
    The difference in sentence lengths has increased over time. 
In 1992 crack cocaine sentences were 25.3 percent longer, while 
in 2007 they were 50 percent longer than powder cocaine 
sentences. African Americans continue to represent the 
substantial majority of crack cocaine offenders. Our data show 
that in 2007 82.2 percent of Federal crack cocaine offenders 
were African American, while in 1992 it was 91.4 percent.
    Powder cocaine offenders are predominantly Hispanic. 
According to our 2007 data, Hispanics were 55.9 percent of 
powder cocaine offenders, compared to 39.8 percent in 1992; 
27.5 percent were African American, compared to 27.2 percent in 
1992; and White offenders comprised 15.4 percent of powder 
cocaine offenders, compared to 32.3 percent in 1992.
    In its 2007 report, the commission determined the 
offender's function in the offense by a review of the narrative 
of the offense conduct section of the pre-sentence report from 
a 25 percent random sample of crack and powder cocaine cases 
from fiscal year 2005.
    For purposes of our report, offender function was assigned 
based on the most serious trafficking function performed by the 
offender in the offense, providing a measure of culpability 
based on the offender's level of participation in the offense.
    According to this analysis, 55.5 percent of crack cocaine 
offenders were categorized as street-level dealers. The largest 
portion of powder cocaine offenders--33.1 percent--were 
categorized as couriers or mules. According to the commission's 
analysis, only a minority of powder cocaine offenses and crack 
cocaine offenses involved the most egregious, aggravating 
conduct, such as weapons involvement, violence or aggravating 
role in the offense, although it occurs more frequently in 
crack cocaine offenses than powder cocaine offenses.
    Information contained in the 2007 report for fiscal year 
2006 indicates that an adjustment under the Federal sentencing 
guidelines for aggravating role was applied in 6.6 percent of 
powder cocaine offenses, and an adjustment for aggravating role 
was applied in 4.3 percent of crack cocaine offenses.
    The May 2007 report from fiscal year 2006 data indicates 
that 8.2 percent of powder cocaine offenders received a 
guideline weapon enhancement, and 4.9 percent were convicted 
under Title 18, U.S. Code Section 924(c). By comparison, 15.9 
percent of crack cocaine offenders received a guideline weapon 
enhancement, and 10.9 percent were convicted under 18 U.S.C. 
Section 924(c).
    The commission believes there is no justification for the 
current statutory penalty scheme for powder and crack cocaine 
offenses. It is important to note that comment received in 
writing by the commission and at public hearings have shown 
that Federal cocaine sentencing policies that provide 
heightened penalties for crack cocaine offenses continue to 
come under almost universal criticism from representatives of 
the judiciary, criminal justice practitioners, academic and 
community interest groups.
    The commission remains committed to its recommendation in 
2002 that any statutory ratio be no more than 20:1. 
Specifically, consistent with its May 2007 report, the 
commission strongly and unanimously recommends that Congress 
increase the 5-year and 10-year statutory mandatory minimum 
threshold quantities for crack cocaine offenses, repeal the 
mandatory minimum penalty provision for simple possession of 
crack cocaine, reject addressing the 100:1 drug quantity ratio 
by decreasing the 5-year and 10-year statutory mandatory 
minimum threshold quantities for powder cocaine offenses.
    The commission further recommends that any legislation 
implementing these recommendations include emergency amendment 
authority for the commission to incorporate the statutory 
changes into the Federal sentencing guidelines.
    Sentencing guidelines continue to provide Congress a more 
finely calibrated mechanism to account for variations in 
offender culpability and offense seriousness, and the 
commission remains committed to working with Congress to 
address the statutorily mandated disparity that currently 
exists in Federal cocaine sentencing policy.
    Mr. Chairman, on behalf of all of the bipartisan members 
who have served through the years on the Sentencing Commission, 
we urge you to take action, and hopefully soon, on this 
important issue.
    Thank you so much, and I appreciate the extra time that was 
given to me for my 5 minutes. And we as a bipartisan commission 
have acted in a bipartisan fashion, and we hope the same 
happens in Congress.
    [The prepared statement of Judge Hinojosa follows:]
        Prepared Statement of the Honorable Ricardo H. Hinojosa



    Mr. Scott. Thank you very much. We will see what we can do. 
I thank you and the work of the Sentencing Commission. Thank 
you very much.
    Ms. Shappert?

 TESTIMONY OF GRETCHEN SHAPPERT, U.S. ATTORNEY FOR THE WESTERN 
    DISTRICT OF NORTH CAROLINA, U.S. DEPARTMENT OF JUSTICE, 
                         WASHINGTON, DC

    Ms. Shappert. Thank you, Mr. Chairman. Thank you for 
inviting the Department of Justice to appear before you today 
and discuss cocaine sentencing policy.
    My name is Gretchen Shappert, and I am the United States 
attorney for the western district of North Carolina. I have 
been in public service most of my adult life, first as an 
assistant public defender and as a prosecutor. And I earlier 
this month completed 4.5 weeks of trail in my own district, two 
of those cases involving crack cocaine. Indeed, much of my 
career in public service has been defined by the ravages of 
crack cocaine.
    Mr. Chairman, I spent last Friday afternoon in the assembly 
room of an African American church in south Statesville, North 
Carolina. Now, I know that most of the Committee probably has 
never heard of Statesville, but it means the world to me. It is 
an important community in the western district of North 
Carolina, and it has absolutely been ravaged by crack cocaine.
    I was there last Friday to meet with members of that 
community to discuss their efforts for drug treatment in that 
community, and when I walked into the room and sat down, one of 
the ministers slid across the table the article from Friday's 
Washington post, discussing the fact that a huge number of 
individuals are eligible for release early on their Federal 
sentences by virtue of crack cocaine retroactivity.
    His question to me, Mr. Chairman, was, ``And what are you 
going to do to help us?'' And to be honest with you, I did not 
have a very good answer.
    The Department of Justice recognizes that the penalty 
structure and quantity differentials for powder and crack 
cocaine created by Congress as part of the Anti-Drug Abuse Act 
of 1986 are seen by many as empirically unsupportable and 
unfair because of their disproportionate impact.
    As this Subcommittee knows, since the mid-1990's there has 
been a great deal of discussion and debate on the issue. There 
have been many proposals, but little consensus as to how this 
should be dealt with. We in the Department of Justice remain 
committed to that effort today and are here in a spirit of 
cooperation to continue working toward a viable solution. We 
continue to insist upon working together to get it right, not 
just for offenders, but also for the law-abiding people and 
victims we serve.
    When considering reforms to cocaine sentencing, we must 
never forget that honest, law-abiding citizens are directly 
impacted by what drug dealers do. Unlike the men and women who 
choose to sell drugs, those who live in these neighborhoods are 
terrorized by those who sell the drugs and must look to the 
criminal justice system to protect them.
    Toward that end, any reform to cocaine sentencing must 
satisfy two conditions. First, any reforms should come from the 
Congress, not the United States Sentencing Commission; and 
second, any reforms, except in very limited circumstances, 
should apply only prospectively, not retroactively.
    Bringing the expertise of the Congress to this issue will 
give the American people the best opportunity for a well 
considered and fair result that takes into account not just the 
differential between crack and powder offenders, but the 
implications of crack and powder cocaine trafficking on the 
communities and the citizens we serve.
    In considering these options, we continue to believe that a 
variety of factors fully justify higher penalties for crack 
offenses. It has been said, and certainly it has been my 
experience, that whereas powder cocaine destroys an individual, 
crack cocaine destroys a community.
    I was in Charlotte as an assistant public defender when the 
crack epidemic hit in the late 1980's, and it entirely changed 
the landscape of law enforcement. We saw an epidemic of 
violence, open-air drug markets, urban terrorism unlike 
anything we had experienced in the past. Sounds of gunfire in 
certain neighborhoods were not uncommon at night. Families were 
afraid to leave their homes after dark. And a number of 
individuals, Mr. Chairman, slept in their bathtubs to avoid 
stray gunfire.
    In some states for the communities to which I referred to 
earlier, our crack dealers are now deliberately giving away 
crack cocaine to juveniles in an effort to get them hooked on 
crack cocaine to create a workforce of individuals distributing 
crack cocaine, who are unlikely to be prosecuted in Federal 
court.
    Quite simply, crack cocaine and powder cocaine are 
different. They are different with their impact on communities. 
With crack cocaine we see open air drug markets. We see 
violence. We see gun-related crimes, intimidation, fear, 
aggravated criminal histories and recidivism, as well as higher 
and more serious rates of addiction.
    According to the United States Sentencing Commission 
report, powder cocaine offenders had access to, possession of 
or used weapons in 15.7 percent of the cases in 2005. The 
number of crack offenders was double, who possessed firearms.
    I would note in the findings of the commission that were 
referenced in the Washington Post article that appeared on 
Friday--information, incidentally, that the Department of 
Justice learned about from the Washington Post and did not have 
earlier--the point was made that only a small percentage of 
these offenders are associated with violence.
    But it is very important to see how violence is defined. 
That is defined violence only to include actual violence or the 
impending fear of violence. The Department of Justice submits 
that the heightened criminal records, that the heightened use 
and possession of weapons by these offenders is a better 
indication of prospective violence as we move forward.
    The second key point of any discussion of changes in the 
cocaine and crack penalties is that cocaine should be 
prospective, and not retroactive. I see that my time has run 
out, but I would simply point out that the impact of 
retroactivity is going to be profound on our communities.
    In my district, the western district of North Carolina, 
approximately 536 offenders will be eligible to possibly have 
their sentences cut. That represents 66 percent of the caseload 
for 1 year in my district. And the process of adjudication of 
these cases will be very difficult for prosecutors simply 
because witnesses are no longer available, prosecutors have 
moved on, agents have retired, evidence has been destroyed. The 
prospect of having to effectively present this information to 
the court is severely limited by the passage of time.
    I will be happy to answer questions. Thank you.
    [The prepared statement of Ms. Shappert follows:]
              Prepared Statement of Gretchen C.F. Shappert



    Mr. Scott. Thank you.
    Mr. Cassilly?

 TESTIMONY OF JOSEPH I. CASSILLY, STATE'S ATTORNEY FOR HARFORD 
 COUNTY AND PRESIDENT-ELECT OF THE NATIONAL DISTRICT ATTORNEYS 
                    ASSOCIATION, BEL AIR, MD

    Mr. Cassilly. Thank you, Mr. Chairman and Members of the 
Committee.
    I am testifying on behalf of the National District 
Attorneys Association, representing state and local 
prosecutors. We have adopted a resolution regarding the 
sentencing disparity between crack and powder cocaine. It 
recognizes that adjustment is warranted, but just as the 
current disparity cannot be justified, the proposed 1:1 
realignment also lacks empirical or clinical evidence.
    There is not, in reality, a 100:1 difference in the 
sentences given to crack versus powder offenders. A DOJ report 
finds that for equal amounts of crack and powder cocaine, that 
penalties range from 6.3 times greater to approximately equal 
to powder sentences.
    The cooperation of Federal and state prosecutors and law 
enforcement that has developed over the years is due in large 
part to the interplay of Federal and state laws. Maryland laws, 
for example, differentiate sentences between crack and powder 
cocaine offenders on a 9:1 ratio for a major dealer.
    Local prosecutors bring large quantity dealers for Federal 
prosecution primarily because of the discretion of Federal 
prosecutors in dealing with these cases. The result is that the 
majority of these cases are resolved by a guilty plea to a 
sentence below the statutory amount.
    The effect of guilty pleas is that serious violent 
criminals are immediately removed from our communities. 
Civilian witnesses do not appear for trial or sentencing 
hearings and are not as subject to threats and intimidation, 
which would happen if we were forced to proceed with these 
cases in court.
    Many criminals who could be affected by retroactive 
application of a new sentencing scheme have already received 
the benefits of lower sentences and would get a second, unjust 
reduction at new sentencing hearings. It is critical that 
Federal sentences remain stricter than state laws, if this 
coordinated interaction is to continue.
    There is a difference between crack versus powder cocaine 
on the user. A study entitled ``Crack Cocaine and Cocaine 
Hydrochloride: Are the Differences Myth or Reality?'' states, 
``The effects of cocaine are similar, regardless of whether it 
is in the form of cocaine hydrochloride or crack cocaine. 
However, evidence exists showing a greater abuse liability, 
greater propensity for dependence, and more severe consequences 
when cocaine is smoked, compared with intranasal use. The 
crucial variables appear to be the immediacy, duration and 
magnitude of cocaine's effects, as well as the frequency and 
amount of cocaine used, rather than the form of cocaine.''
    The Drug Enforcement Administration predicts that a crack 
user is likely to consume between 13 to 66 grams per month, for 
a cost per user between $1,300 and $6,600. A typical powder 
user consumes about two grams per month, for a cost of about 
$200.
    There is a difference in the associated crimes and the 
effect on the community caused by crack, as opposed to powder 
cocaine. The inability to legitimately generate the money 
needed by a crack addict leads to crimes that can produce ready 
cash, such as robbery, drug dealing and prostitution. Studies 
show crack cocaine use is more associated with this systemic 
violence than powder cocaine use.
    One study found that the most prevalent form of violence 
related to crack cocaine was aggravated assault. Another study 
identified crack as the drug most closely linked to trends in 
homicide cases. And a third study showed that weapons were 
involved in crack convictions more than twice as often as 
powder convictions.
    In one study 86.7 percent of women surveyed were not 
involved in prostitution in the year before starting crack use. 
Women who were prostitutes dramatically increased their 
involvement after starting the use of crack, with rates nearly 
four times higher.
    One complaint about the sentencing disparity is that it 
discriminates against Black crack dealers versus white powder 
dealers. Unfortunately, what most discriminates is the 
violence, degradation and community collapse that is associated 
with crack use and crack dealers.
    A stop snitching video in Baltimore was made by Black 
dealers to threaten Black citizens with retaliation and death 
for standing up to the dealers. A family of five was killed by 
a firebomb, which was thrown into their home at the direction 
of crack dealers, because the mother reported crack dealing on 
the street in front of their home.
    If there is a need to reduce the disparity between crack 
and powder cocaine, then perhaps the solution is to increase 
sentences for powder cocaine. We ask the Congress to make any 
decisions with regard to scientific and empirical study 
evidence and not simply on the desire to move from one extreme 
to the other.
    Thank you.
    [The prepared statement of Mr. Cassilly follows:]
                Prepared Statement of Joseph I. Cassilly



    Mr. Scott. Thank you.
    Mr. Short?

     TESTIMONY OF MICHAEL SHORT, FORMER OFFENDER, MARYLAND

    Mr. Short. Thank you for having me. I want to thank 
Chairman Scot and Ranking Member Gohmert and Members of the 
Subcommittee for giving me this opportunity to testify today.
    My name is Michael Short, and I am here because in 1992 I 
was convicted of selling 63 grams of crack cocaine, and on 
November 13th of 1992, I was sentenced to 235 months in prison. 
And I served 15 years and 8 months of that sentence.
    In prison I worked very hard. I earned my associates degree 
in business management by way of Pell grants, and when a Pell 
grant was no longer available, I continued to educate myself by 
the resources from my family and my friends, and I obtained a 
nutritionist specialist degree, core conditioning exercise 
certification, certified personal trainers license, biometric 
training, and I also completed computer courses and brick 
masonry. Right now I am currently employed as a certified 
personal trainer.
    And in 2001 I asked the President of the United States to 
grant me executive clemency. I asked him to recognize that I 
was sorry for my actions that I had done, and all I could do to 
improve my life, and that more time in prison would serve no 
further purpose. I am deeply gratified to tell you that 
President Bush granted my petition on December 12, 2007.
    To be clear, I know that what I did was wrong. I sold 
illegal drugs, and I deserved to be punished. But what I did 
and who I was did not justify the sentence I received. And 
while today I am telling my story, it is also the story of many 
men that I know in prison, non-violent offenders serving 10, 20 
or 30 years for crack cocaine offenses.
    I did not need 20 years to convince me of the error in my 
ways, to punish men or to set me on a right path. My sentence 
was altogether too long. It was too long because of the way the 
law treats crack cocaine. Twenty years is the kind of sentence 
that drug kingpins should get--big-time drug dealers. But I was 
not a drug kingpin. I was sentenced like one, because the drug 
I was convicted for was crack cocaine.
    The law treats one gram of crack cocaine the same as 100 
grams of powder cocaine. If I had been sentenced for the same 
amount of powder cocaine, I would have left prison roughly 7 
years ago, after serving 9 years, which is still a very long 
time in prison.
    I have heard some of the comments some people in positions 
of power have made about crack cocaine prisoners--that we are 
violent gang members and that this is why our sentences have to 
be so much longer. I am not that person, and most of the people 
that I leave behind in prison aren't either.
    I grew up in a warm, close, supportive family. I had all I 
needed, and though I made a terrible mistake, there was no 
violence in my crime. I was not a gang member. I was sentenced 
for such a long time because of a stereotype.
    People like me convicted of crack cocaine offenses are 
serving longer prison sentences than we would serve, were we 
sentenced for powder cocaine. They keep hearing how wrong this 
is and cannot understand why, if so many people, including the 
Supreme Court, the Sentencing Commission and even some 
presidential candidates feel this way, does nothing change?
    They made us all feel that the system itself is stacked 
against us and that no one cared enough to right a wrong. My 
sentence was too long, and yet no one in the criminal justice 
system seemed to be able to do anything to shorten it. I also 
see a racial disparity there reflected. It is reflected in the 
system.
    While I believe that it was not intended to punish people 
who look like me more harshly, I can tell you that in prison 
there is a sense of terrible unfairness and imbalance in who 
goes away for the longest sentences. It makes a person 
distrustful. There was a lot of talk amongst prisoners about 
how our system is anything but colorblind.
    I think that your job is to be sure that punishment is 
adequate, but not excessive. As someone who has spent so much 
time in prison, I can tell you we are aware of every hour, 
every day and every month. It is tough. Certainly, it hurts us. 
There is a point beyond which this lesson could be learned and 
punishments that could be extracted are well past their loss. 
And beyond that point, it makes no sense to warehouse those 
humans.
    But even worse, I think that what it does to people who 
love us on the outside. Not a day passed that my mother did not 
worry about me getting harmed in prison. And she felt the 
injustice of this sentence very much. She was in prison just as 
surely as I was. I lost my mother during those years; in all I 
lost ten family members while I was away.
    I will never replace those people, and they will never know 
me as I have become. But I will tell you that I want to do all 
that I can to convince you to save other families from what 
mine had to endure. As you consider correcting this injustice 
of crack cocaine sentencing, I want you to know that if you do, 
it will be a tremendous gesture unto all the people who are 
serving unduly long sentences.
    That said, I can see no reason to do anything other than 
make crack sentences the same as those for powder cocaine, and 
best for all, get rid of mandatory minimum sentences once and 
for all. It is a terrible system that ignores the individuals 
and sentences based only on the weight of some drugs.
    Mandatory minimums forbid a judge from taking the whole 
person into account. Remorse, acceptance of responsibility, the 
influence of coercion or poverty, addiction--all of it gets 
swept aside in favor of one measure, the weight of drugs. It 
makes the small fry as liable to serve extremely hard sentences 
as those who actually deserve them.
    I received the gift of freedom when President Bush commuted 
my sentence. I cannot begin to tell you what it meant. You have 
that same power. You have a tough job of fixing this disparity. 
It is just the right thing to do. If you correct this one 
injustice, you will help correct a terrible injustice and at 
the same time restore some of the lost faith in the criminal 
justice system.
    Thank you.
    [The prepared statement of Mr. Short follows:]
                  Prepared Statement of Michael Short
    I want to thank Chairman Scott, Ranking Member Gohmert and members 
of the Subcommittee for giving me this opportunity to testify. My name 
is Michael Short. I am here because in 1992 I was sentenced for selling 
crack cocaine. Before then I had never spent a day in prison. I came 
from a good home and a good family. I had no criminal history. I was 
not a violent offender. But, on November 13, 1992, I was sentenced to 
serve nearly twenty years in federal prison. I was 21 years old.
    In prison I worked hard and achieved a lot. I earned my Associates 
degree in Business Management from Park College in 1995. I also earned 
my Nutrition Specialist degree, Core Conditioning Exercise 
certification, and am certified in CPR-AED. I became a certified 
personal trainer, completing the coursework through the National 
Federation of Professional Trainers, and last week I started my new job 
at a health club in Prince Georges County. I did everything I could to 
improve myself and use my time well.
    In 2001 I asked the President of the United States to grant me 
executive clemency. I asked him to recognize that I was sorry for my 
actions, that I had done all I could to improve my life and that more 
time in prison would serve no further purpose. I am deeply gratified to 
tell you that President Bush granted my petition on December 12, 2007.
    To be clear, I know what I did was wrong. I sold illegal drugs and 
I deserved to be punished. But what I did and who I was did not justify 
the sentence I received. And while today I am telling my story, it is 
also the story of the many men that I know in prison--nonviolent 
offenders serving ten years, twenty years or longer for crack cocaine 
offenses.
    I did not need twenty years to convince me of the error of my ways, 
to punish me or to set me on the right path. My sentence was altogether 
too long. It was too long because of the way the law treats crack 
cocaine.
    Twenty years is the kind of sentence that drug kingpins should 
get--big time dealers. But I was no drug kingpin. I was sentenced like 
one because the drug I was convicted for was crack cocaine. The law 
treats one gram of crack cocaine the same as 100 grams of powder 
cocaine. If I had been sentenced for the same amount of powder cocaine, 
I would have left prison roughly seven years ago after serving nine 
years, which is still a very long time in prison.
    I have heard some of the comments some people in positions of power 
have made about crack cocaine prisoners--that we are violent gang 
members and that is why our sentences have to be so much longer. I am 
not that person and most of the people I leave behind in prison aren't 
either. I grew up in a warm, close, supportive family. I had all I 
needed and, though I made a terrible mistake, there was no violence in 
my crime. I was not a gang member. I was sentenced for such a long time 
because of a stereotype.
    People like me, convicted of crack cocaine offenses, are serving 
years longer in prison than they would serve were they sentenced for 
powder cocaine. They keep hearing how wrong this is and cannot 
understand why, if so many people including the Supreme Court, the 
Sentencing Commission and even some presidential candidates feel this 
way, does nothing change. It made us all feel that the system itself 
was stacked against us or that no one cared enough to right a wrong. My 
sentence was too long and yet no one in the criminal justice system 
seemed to be able to do anything to shorten it.
    I also see the racial disparity that is reflected in this system. 
While I believe that it was not intended to punish people who look like 
me more harshly, I can tell you that in prison there is a sense of a 
terrible unfairness and imbalance in who goes away for the longest 
sentences. It makes a person distrustful. There was a lot of talk among 
prisoners about how our system is anything but colorblind.
    I think your job is to be sure that punishment is adequate but not 
excessive. As someone who has spent so much time in prison, I can tell 
you we are aware of every hour, every day and every month. It is tough. 
Certainly it hurts us; there is a point beyond which the lessons that 
could be learned and the punishment that could be extracted are well 
past--they are lost. And beyond that point it makes no sense to 
warehouse those humans.
    But even worse, I think, is what it does to the people who love us 
on the outside. Not a day passed that my mother did not worry about me 
getting harmed in prison. And she felt the injustice of this sentence 
very much. She was in prison just as surely as I was. I lost my mother 
during those years; in all I lost ten family members while I was away. 
I will never replace those people and they will never know me as I have 
become. But I will tell you that I want to do all I can to convince you 
to save other families from what mine had to endure.
    As you consider correcting the injustice of crack cocaine 
sentencing, I want you to know that if you do, it will be a tremendous 
gesture to all the people who are serving unduly long sentences. That 
said, I can see no reason to do anything other than make crack 
sentences the same as those for powder cocaine and best of all, get rid 
of mandatory minimum sentencing once and for all. It is a terrible 
system that ignores the individual and sentences based only on the 
weight of some drugs. Mandatory minimums forbid a judge from taking the 
whole person into account. Remorse, acceptance of responsibility, the 
influence of coercion or poverty, addiction, all of it gets swept aside 
in favor of one measure: the weight of drugs. It makes the small fry as 
liable to serve extremely harsh sentences as those who actually deserve 
them.
    I received the gift of freedom when President Bush commuted my 
sentence. I cannot begin to tell you what that meant. You have that 
same power. You have a tough job, but fixing this disparity is just the 
right thing to do. If you correct this one injustice you will help 
correct a terrible injustice and at the same time restore some of the 
lost faith in the criminal justice system.
    Thank you.

    Mr. Scott. Thank you very much, Mr. Short.
    Mr. Nachmanoff?

 TESTIMONY OF MICHAEL NACHMANOFF, FEDERAL PUBLIC DEFENDER FOR 
        THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA, VA

    Mr. Nachmanoff. Mr. Chairman and Members of the 
Subcommittee, thank you for holding this hearing and providing 
me with the opportunity to speak on behalf of Federal and 
community defenders from around the country regarding the 
reform of the Federal cocaine sentencing laws.
    As Federal public defenders, we have represented thousands 
of individuals just like Mr. Short, who have been charged with 
crack cocaine offenses in the Federal courts. And we have seen 
firsthand the gross injustice caused by the dramatic, 
unjustified disparity in the punishment between crack cocaine 
and powder cocaine.
    We have seen the devastating impact that imposing draconian 
punishments in crack cases has had on our clients, their 
families and their communities. When low-level crack dealers 
are punished more harshly than wholesale suppliers of powder 
cocaine, a necessary ingredient to make crack, it undermines 
people's confidence in the criminal justice system.
    When the punishments imposed in crack cases are routinely 
harsher than the punishments received by traffickers of heroine 
and PCP, it further erodes confidence in the system and 
undermines respect for it. And when those individuals who face 
unduly excessive sentences are overwhelmingly African American 
and the majority of those who distribute powder cocaine are 
predominantly not African American, it creates an intolerable 
situation that cries out for reform.
    The crack-powder disparity is wrong, and it must be fixed. 
The Sentencing Commission's recent amendments to the crack 
cocaine guideline and its decision to make them retroactive 
represent a small, but significant step in addressing that 
problem.
    The Supreme Court's recent recognition that judges must be 
permitted to take into consideration this unwarranted disparity 
in determining fair and appropriate sentences is another 
positive step, but it is the fundamental structure of Federal 
cocaine sentencing that is the underlying problem, and only 
Congress can solve it comprehensively.
    In an effort to address these problems, Federal and 
community defenders support the following reforms. The crack-
powder disparity should be eliminated by equalizing the 
penalties for crack and powder.
    The mandatory minimum for simple possession should be 
repealed. Not only is it grossly unfair and unique among drug 
laws to single out the mere possession of crack for a 5-year 
mandatory sentence, but it prevents individualized sentencing, 
as all mandatory minimums do, which we believe is essential to 
any just sentencing system. In this regard we also support 
providing judges with alternatives to incarceration for drug 
offenses, including the option of imposing probation.
    And finally, we urge the funding of pilot programs for 
Federal substance abuse courts, which would provide a needed 
alternative to the costly and wasteful incarceration of 
individuals, who often have no opportunity for meaningful drug 
treatment in the prison system.
    Now, the structure of Federal sentencing for cocaine is 
grossly unfair, and I think it is important for the Committee 
to consider some facts that have not come out at this hearing 
and relate directly to some of the things that have been 
offered by the witnesses who have already testified.
    With respect to the kinds of cases that are brought at the 
Federal level, the witness for the National District Attorneys 
Association has suggested that the state and Federal 
authorities cooperate well and ensure that referrals are made 
of large traffickers so that the Federal Government can address 
those cases, which, of course, was the original congressional 
intent when the Anti-Drug Abuse Act of 1986 was passed.
    That is not the case. In the Eastern District of Virginia 
and throughout the country, what we see day in and day out is 
small-time, low-level drug dealers, who are brought into 
Federal court and prosecuted and are subject to the draconian 
penalties that the Federal sentencing laws authorize.
    In the State of Maryland, there were 46 crack prosecutions 
in 2006. The median weight for those cases was 90 grams of 
crack cocaine. According to statistics, the median weight for a 
high-level trafficker is 2,962 grams--almost three kilos of 
crack cocaine. An average of 90 grams is 5 percent of what a 
high-level trafficker deals in. If the U.S. attorney's office 
in Maryland is bringing only high-level cases, then they are 
certainly a different kind of case than what the statistics 
show a high-level case should be.
    A street-level dealer deals in 50 grams. That is the median 
weight for a street-level dealer. Over 35 percent of cases 
nationwide in 2006 involved less than 25 grams of crack 
cocaine--less than half the amount of the median weight for a 
street-level dealer. And, of course, those amounts are far in 
excess of the five-gram trigger for a 5-year mandatory 
sentence.
    When Congress passed these laws in 1986, they just got it 
completely wrong. If the idea was to target mid-level 
traffickers and high-level traffickers at a 5-year mandatory 
minimum and 10-year mandatory minimum, they got the quantities 
wrong. You could not have a lower amount of crack cocaine being 
distributed.
    Recently in the Eastern District of Virginia, we 
represented an individual who was prosecuted in Federal court 
for distribution of .11 grams of crack cocaine--.11 grams. If 
it had been any less, there wouldn't have been any crack 
cocaine there at all. And this case was taken from the state, 
and it was federalized. And that individual received a 
punishment of 120 months for that .11 grams of crack cocaine.
    With regard to the retroactivity, the witness for the 
Department of Justice has suggested that this is going to be an 
enormous burden on the court system. That is simply not the 
case. For the past 2 months, Federal defenders, probation 
officers, judges have been working around the country to find 
efficient and fair ways of addressing retroactivity, and they 
have been remarkably successful.
    In our district, which is the largest district in the 
country in terms of the eligible cases, we have a grand total 
of 16 individuals that we filed motions on behalf of and who we 
hope, if the judges sign the orders, will be released on March 
3rd--16 individuals.
    While I can appreciate the Department of Justice is 
concerned with the re-entry of these individuals into their 
communities, it is extremely important for the Committee to 
understand that these are individuals who would be coming back 
to their communities anyway. These are people who are very 
often at the very end of their sentence.
    In the Eastern District of Virginia, these 16 individuals 
that we represent had often 2, 3, 6 months left to serve. Many 
of them were in halfway houses. So these people were on their 
way back to their communities.
    Eight of the 16 had no criminal history or criminal history 
category of one or two. These are not dangerous people. These 
are not violent people. These are not gang members.
    The Department of Justice also emphasized the fact that 
they somehow believe the statistics don't accurately reflect 
the danger of this population. The fact of the matter is that 
94.5 percent of all crack cocaine offenses do not involve 
violence. They involve no deaths. They involve no bodily 
injury. In almost 90 percent of the cases, not only is there no 
actual violence--there is not even the threat of violence. 
Ninety percent of these cases are not violent offenses.
    The Department of Justice has suggested that because there 
is a certain percentage of weapons involvement, that that 
translates to violence and danger. Well, the fact of the matter 
is a weapons enhancement can be based on the possession of a 
gun by a co-conspirator in his closet. In other words, there is 
no reason to believe that these individuals, who may have even 
gotten a gun bump, an additional time on their sentence, would 
be dangerous or would be violent or even possess the gun in the 
first place themselves.
    I see that I am out of time, and I thank the Committee.
    [The prepared statement of Mr. Nachmanoff follows:]
                Prepared Statement of Michael Nachmanoff



    Ms. Shappert. Mr. Chairman, in light of the criticism of 
the Department of Justice, I would respectfully ask an 
opportunity to respond.
    Mr. Scott. You will have that opportunity when we get to 
questions. And I will recognize myself for 5 minutes. And if 
you would like to answer, you can respond to the criticism.
    Ms. Shappert. Thank you.
    With regard to the contentions of the Federal defender, let 
me tell you that the impact on the court system is profound. It 
is interrupting our ability to prosecute other cases that need 
to be prosecuted. It is requiring us to re-open cases that have 
been closed for years.
    And as I indicated, we are not on a level playing field in 
our duty to present to the courts a clear picture of an 
individual being considered for re-sentencing when we no longer 
have the witnesses, we no longer have the evidence, and we no 
longer have the facts.
    It is estimated that probably approximately 5,000 of this 
20,000 or 19,500 universe of individuals will be eligible for 
re-entry in the first 2 years. That will have a profound impact 
on the communities that are most fragile. A huge number of the 
individuals who have been prosecuted for crack cocaine offenses 
will be returning to the very communities we are working to 
help bring back.
    Many of these individuals will not have completed re-entry 
programs. They will not have completed anger management 
classes. They will not have completed the halfway house 
programs that are associated with effective re-entry.
    And I again reiterate that the definition of violence that 
limits the universe to only 5 percent of crack offenders as 
being violent seriously mischaracterizes the situation. When we 
know that a third of the individuals in this group of people 
who are eligible for retroactivity either possessed a weapon or 
used a weapon----
    Mr. Scott. When would they be getting out without 
retroactivity? And how much time would they have served 
already?
    Ms. Shappert. Well, it depends, honestly, sir, on the 
sentence that was imposed upon them. They will get out 
eventually.
    Mr. Scott. Judge Walton, how much difference did the 
Sentencing Commission action make on individual cases that are 
coming before you? Do you see a profound effect in the 
sentencing of the individuals who come before you?
    Judge Walton. Not significantly. Most of the people would 
have been eligible fairly soon in any event. I think it was 
estimated by the Commission that you would be talking about 
somewhere between, on average, 24 to 27 months in reduction.
    Mr. Scott. Out of what kind of sentence?
    Judge Walton. For the sentences like, in many situations, 
Mr. Short received. And I think his situation----
    Mr. Scott. These people would have served 10 years. Instead 
of getting out in 12 years, they might get out in 11 years?
    Judge Walton. Many of them--that would be the case. And Mr. 
Short's situation is not unique. And I think it is just a waste 
of the taxpayers' money to keep somebody like Mr. Short locked 
up for as long as he was locked up. I will be the first to tell 
him that he should have been punished significantly. And he 
should have been punished. I understand that. But to keep 
somebody locked up for as long as we kept him locked up, who 
could have come back into the community and been a positive 
contributor to society, I think is a loss to the community 
where he comes from.
    [Applause.]
    Mr. Scott. If someone is going to take advantage of a 
retroactive application of the Sentencing Commission's actions, 
is that automatic? Or does it have to come before a court for 
re-sentencing?
    Judge Walton. It is not automatic, and I can tell you that 
I, and I believe my colleagues, feel the same way. If we have 
evidence indicating that someone poses a risk to the community, 
we will not grant them that reduction. I have three cases on my 
desk right now. When I get back, I am going to look at them. 
But the United States attorney has agreed that reductions are 
appropriate.
    And that is happening throughout country, where prosecutors 
are weighing in, and they are saying, ``We think the sentence 
that the person has already served is adequate,'' and 
therefore, they are not opposing the reduction.
    Mr. Scott. Now the Sentencing Commission essentially 
ascertained that the sentences that have been given in the past 
have been essentially racially discriminatory and irrational. 
Now, Ms. Shappert, why should people continue to serve such a 
sentence, particularly when, if the retroactivity is going to 
be applied, it has to be applied on an individual basis, with a 
judge making the decision that in this individual case, it is 
an appropriate thing to do?
    Ms. Shappert. For two reasons. For one that Judge Walton 
alluded to, that if there is evidence, the court will be able 
to make an accurate determination. But as I indicated earlier, 
that evidence may no longer exist, because if the file has been 
closed, if the evidence has been destroyed because the case was 
over, the prosecutor will not have the ability to give a clear 
picture to the judge.
    The second reason is if you look at the universe just of 
individuals who are going to be immediately eligible for 
release, of that group, approximately 34 to 55 percent are 
likely to recidivate within 2 years. Because of the----
    Mr. Scott. Now, wait a minute. They are going to be getting 
out shortly anyway.
    Ms. Shappert. They are going to be getting out, and they 
are more likely to be recidivists. They will not have had the 
re-entry programs that would otherwise be available, and they 
are going to create a risk to the community.
    Mr. Scott. Judge Walton, if someone is getting out eligible 
for re-entry, would you consider whether or not they had taken 
advantage of transitional resources?
    Judge Walton. Absolutely. And one of the things that we are 
going to try and do is if we have halfway house capability 
available, as a part of the release order, they will be ordered 
to serve a certain period of time in a halfway house before 
they are actually released into the community.
    Mr. Scott. My time has expired.
    The gentleman from North Carolina?
    Mr. Coble. Thank you, Mr. Chairman.
    Good to have all of you witnesses with us today.
    Ms. Shappert, what is the department's position with 
regards to first-time non-violent offenders, who will be 
eligible for release next Monday--A. And does the department 
know how many of the roughly 1,600 offenders fall into this 
category?
    Ms. Shappert. To answer the first part of your question, we 
are interested in a dialogue between the Congress. That is why 
I am here to deal with that issue. We respectfully submit that 
the legislation that would go into effect on March 3rd needs to 
be tolled, to be stopped, so that we can sort through this 
process, because it is imperative that there be a discussion of 
how crack offenses should be considered.
    As the attorney general recently stated in reviewing 
retroactivity, the department is receptive to scrutinizing 
first-time offenders, individuals with no criminal history, for 
retroactive treatment in a way that would be different than for 
those with aggravated criminal histories, lengthy sentences and 
guns and management enhancement roles.
    So we submit that there needs to be a dialogue and a 
decision by the Congress to refine the process.
    With regard to how many of those who will be immediately 
eligible are first offenders, I will have to get back with you 
to get you that statistic.
    Mr. Coble. I would like that. I would appreciate that.
    Ms. Shappert. Yes, sir.
    Mr. Coble. Judge Walton, you testified that the Judicial 
Conference opposes the current 100:1 ratio. Would 20:1 ratio be 
appropriate?
    Judge Walton. Mr. Coble, we have not taken a position as to 
what the disparity, if there is a disparity, should be. We feel 
that that is a legislative decision that Congress has to make, 
and the conference has not taken a position on that.
    Mr. Coble. Thank you, sir.
    It is my understanding, Judge, that those offenders with a 
category six criminal history have a 50 percent likelihood to 
re-offend, and perhaps to be re-incarcerated. Is this 
likelihood to re-offend taken into account when sentencing a 
defendant--A. And B, will this also be taken into account when 
re-sentencing offenders under the commission's ruling?
    Judge Walton. Absolutely. What we are going to be getting 
from our probation department, if we don't still have a 
probation report, which will reflect if there was violence 
associated with the offense for which they were before the 
court--we will have that information, plus we will be getting 
from the Bureau of Prisons the institutional adjustment of the 
individual. And if there is indication that the person has been 
engaged in infractions, that will be taken into account in 
deciding whether the reduction should be appropriate.
    Mr. Coble. Thank you, sir.
    Mr. Cassilly, describe, if you will, examples that 
constitute category one versus category six.
    Mr. Cassilly. What?
    Mr. Coble. Or Ms. Shappert, if you waive.
    Mr. Cassilly. I think Ms. Shappert would be better at this.
    Mr. Coble. Okay.
    Ms. Shappert. Category one criminal history would be 
somebody who had no criminal history points or one point. 
Criminal history category six would be 13 points or more. It is 
a compilation of the different offenses that an individual has 
been convicted of.
    Category six offenders are typically the most aggravated 
category of offenders. They are typically the people who have 
numerous crimes on their record, such as robbery, other drug 
crimes, crimes of violence. That would typically be category 
six.
    Mr. Coble. Let me give you another bite of the apple, Mr. 
Cassilly. You mentioned in your testimony the connection 
between crack use and prostitution. What would be the age range 
of women engaging in prostitution to support their drug 
addiction?
    Mr. Cassilly. Basically, we are running into crack users 
that are in their early teens--I mean 14 and 15--and we are 
running into problems with women that young getting involved in 
prostitution.
    Mr. Coble. Is the use of crack cocaine linked to other 
crimes generally and violent crimes specifically?
    Mr. Cassilly. The studies have shown that it is linked to 
other crimes. Part of the issue is the nature of the use of 
crack. Crack users tend to want to re-administer because of the 
intensity of the high and the fact that they are crashing, so 
that they tend to first of all not want to go too far from 
their crack dealer, which is the effect on the community.
    The powder cocaine users tend to buy and take home or take 
into another community, whereas crack users tend to stay within 
the community where the crack is available, use in that 
community, steal or rob or prostitute within that community 
where their dealer is located so that they can go back, re-
acquire. As soon as they have got the money, they are back to 
the dealer, and they are buying again.
    And that is why you see that impact where the crack dealers 
are located. That is the effect. That is the blight on the 
community, because the crimes that are committed in order to 
obtain the crack are committed in those communities. They don't 
leave those communities to go offend somewhere else and then 
take the time to come back. And that is what we see--that the 
prostitution is committed close to where the dealer is located.
    Mr. Coble. Thank you, all of you.
    And thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman.
    And again, I appreciate not only your testimony, but your 
patience throughout this process. I know it hasn't been easy, 
dealing with the delays and what not.
    But coming into this hearing and hearing some of the goings 
on around this hearing and even hearing what sounds like angry 
statements about this bill, I get the impression there were 
people that came in here thinking, ``Gee, you know, this was a 
racist law passed in 1986. Those mean White racists that passed 
this should be tarred and feathered.''
    And when you go back, there is no way you are going to 
convince me that people like Charlie Rangel, Major Owens, 
Mickey Leland, Harold Ford, Sr. didn't care deeply about the 
African American communities and individuals that would be 
affected. They believed. I believe all of those did.
    Seventeen of the 21 African American House members believed 
with all their heart that getting tough and pushing this 
through, as they co-sponsored this through--and as President 
Reagan said, people like Charlie Rangel were the champion of 
getting this through--they believed that being tougher on crack 
cocaine was going to help save African Americans. I know that 
is what they believed. They wouldn't have done this otherwise.
    But the problem is it has been done for 20 years. It 
certainly doesn't appear to have saved African Americans or 
communities that have been so adversely affected before and 
after. And so, Ms. Shappert, you were talking about this, but I 
am still wondering what is going to help keep African Americans 
off of crack cocaine? The tougher sentences didn't work.
    Ms. Shappert. Well, first of all, we don't ever prosecute 
based on race. We prosecute based on conduct.
    Mr. Gohmert. And I would never say that you--I wasn't 
alleging that.
    Ms. Shappert. And I don't take offense to that, but I just 
want to make that clear for the record.
    Mr. Gohmert. Right.
    Ms. Shappert. And vigilance is the price we pay for 
freedom. I will tell you in that in communities where we have 
weed and seed sites, for example, where we have gone in and 
partnered with the leadership in the community, where we bring 
in prosecutors and prosecute aggressively and then seed in 
community services, we have dramatically cut the rate of 
violent crime.
    When you bring down the crack usage, when you bring down 
the crack distribution, you bring down the violent crime. And I 
am here to speak on behalf of those communities that are 
victims of this kind of crime. That is why we need to be 
vigilant.
    The discussion needs to be what changes can we make in the 
law to assure that we are meeting our responsibilities to 
protect those communities, as well as to treat offenders 
fairly?
    Mr. Gohmert. Well, if this bill is basically brought, 
addressed the distribution of crack and being tough on them, 
then I am not sure. Are you saying that this has helped cut 
down on crack cocaine?
    Ms. Shappert. I am saying that the Department of Justice 
recognizes that the 1986 law has been called into question, 
based on subsequent findings, subsequent results. We are here 
to discuss that ratio. We believe that there is a difference 
between crack and powder in the consequences for communities 
and that this discussion must be made in the context of 
retroactivity and the changes the Sentencing Commission has 
proposed that should be retroactive.
    We think this needs to be an omnibus package. We think this 
dialogue needs to be extended, and we think that that 
discussion----
    Mr. Gohmert. I tell you omnibus packages, especially to do 
with criminal law, would scare me, but just in my 3 years here 
and a former judge, I look at omnibus packages, and to me they 
usually mean there is stuff in here we could never get passed 
any other way, so we will call it an omnibus and stuff the bad 
stuff in there.
    Ms. Shappert. How about wholistic? A wholistic approach, 
recognizing----
    Mr. Gohmert. Well, that sounds so much better.
    Ms. Shappert. Thank you. [Laughter.]
    Seriously, we recognize that we have a rare opportunity to 
deal with this now. We are asking the Congress to toll the 
decision of the Sentencing Commission, which will go into 
effect March 3rd, to give us time for discussion and to----
    Mr. Gohmert. My time is about to expire, and I did want to 
ask Judge Walton.
    And thank you.
    But, Judge Walton, you were talking about sentencing. And I 
don't know when you went on the Federal bench. I forgot.
    Judge Walton. 2001.
    Mr. Gohmert. Yes. But you may remember back in 1983 when 
the Sentencing Commission came into being, Federal judges were 
outraged--"You took away my discretion!'' And now I talk to too 
many Federal judges going, ``And it is not a bad thing, because 
I don't have any discretion. I don't have to think.''
    One of the toughest things I did as a judge was having to 
make the right decision in a sentencing case. Tough to use your 
discretion as appropriate. But I wanted that discretion as a 
judge, to have the range and then let me make the call. And I 
didn't know if, sitting next to the Chairman here, how you felt 
about the Sentencing Commission. You have got a free shot at 
him, if you want it. [Laughter.]
    Judge Walton. He is my good friend.
    Mr. Scott. I want some of your 5 minutes, if you don't 
mind.
    Judge Walton. As a judge, I like to think. And I like a 
certain level of discretion. I was not one of those judges who 
believed that the Sentencing Commission was all bad. I believe 
that some restraint on discretion is appropriate. I think we 
have probably reached the appropriate balance at this point, 
because I do have a sentencing guideline, so I can consider 
those in assessing a range that is appropriate.
    But in appropriate cases, I can go above, if I think it is 
appropriate, and I can go below, if I think it is appropriate, 
provided I am not constrained by mandatory minimums.
    Mr. Gohmert. My time has run out. The Chairman advised me 
we have got another round of questions, so I will get to give 
them.
    Chairman, I am going to host some of my time in a moment.
    Mr. Scott. Or maybe the Chairman will. [Laughter.]
    Well, let me just say for the record, nobody is accusing 
anybody back in 1986 of racially discriminatory motives. But as 
Judge Walton has pointed out, we know more now than we did 
then, and there is clearly a racially discriminatory impact on 
the continuation of the law such that the Sentencing Commission 
has pretty much concluded that the present laws are not only 
irrational, but in effect racially discriminatory.
    Now, Judge Walton, if the idea is to get people to stop 
using crack, have you seen any evidence that people are using 
powder rather than crack because of the draconian sentences on 
crack that do not apply to powder? Do people make the decision, 
``Well, I am not going to use crack; I am going to use powder, 
because the sentences are less?"
    Judge Walton. I can't say that I have seen that. I think it 
is a matter of economics. And crack cocaine is cheaper, and 
therefore, it is more readily available because of it.
    Mr. Scott. But people haven't modified their behavior based 
on the fact that you can get 5 years mandatory minimum for five 
grams of crack and 500 grams of powder are necessary to trigger 
the same mandatory minimum. You haven't seen people make what 
would be a logical choice--use powder rather than crack. You 
haven't seen that, have you?
    Judge Walton. I have not.
    Mr. Scott. You have kind of been a little slippery on what 
the five grams of crack--you get 5 years mandatory minimum for 
simple possession of crack. Is that right?
    Judge Walton. That is correct.
    Mr. Scott. How much powder would you have to have to 
trigger 5 years mandatory minimum for simple possession only, 
not distribution?
    Judge Hinojosa. There is none, because there is no 
mandatory minimum for simple possession of powder, Congressman.
    Mr. Scott. So if it is just possession, there is no 
mandatory minimum at all.
    Judge Hinojosa. No mandatory minimum.
    Mr. Scott. However, for crack it is five grams. Now, I 
heard somebody allude to how much people consume in a weekend 
or week. How much? What does a user for crack--was it a day's 
worth, a month's worth?
    Mr. Cassilly. Those were DEA figures based on a month's 
use.
    Mr. Scott. So a month would be--what did you say?
    Mr. Cassilly. They estimated, depending on the level of 
addiction, between 13 and 66 grams per month.
    Mr. Scott. And for powder?
    Mr. Cassilly. For powder they estimated two grams per month 
for an average user.
    Mr. Scott. So you would have to have 250 months' worth of 
powder to distribute for 5 years mandatory minimum, but less 
than a month's worth of crack.
    Mr. Cassilly. I agree. I think that the figure for the 
mandatory minimum under the Federal sentences is way off. In 
just my own state, it would be 10 times that amount for crack 
for a mandatory sentence to kick in.
    Mr. Scott. Okay.
    Judge Hinojosa, much has been said about the difference in 
crack and powder--some with violence and firearms and robbery 
and everything else. Can the Sentencing Commission make 
appropriate individualized enhancements based on conduct, 
rather than generalities, so that if somebody is dealing in 
crack and used a firearm, they would get more, or if they were 
violent, they would get more, whereas someone who--and the same 
with powder, if you are violent, if you have got a firearm and 
all of that--can you make enhancements to individualize and 
appropriately tailor the punishment based on individual 
conduct?
    Judge Hinojosa. We could, but the guidelines presently 
provide an enhancement for anybody who possesses or has 
relevant conduct with regards to a dangerous weapon, for 
aggravating role. This whole issue of criminal history--of 
course, it is taken into account. The higher the criminal 
history, the higher the sentence.
    In some cases you are at criminal history six because you 
are a career offender, which therefore means that in all 
likelihood you are not going to qualify for any retroactive 
application here. And all of these factors do get taken into 
account. They have given people higher sentences and will 
continue to do so under the guidelines system.
    We also have a statute that allows for the government to 
bring the charge under Title 18, Section 924(c), to make sure 
that somebody gets an additional sentence in addition to the 
drug sentence.
    The whole issue about danger to the communities--we cannot 
ignore the fact that all drugs are a danger to some community. 
The fact that crack, in the opinion of some, limits itself to 
the particular crack community where someone had dealt in crack 
or had passed crack to someone else is no different than the 
powder or the heroin that ends up hurting some other community, 
because in that community where it ends up, you are going to 
have the same situation with regards to people going into 
prostitution, people causing harm within the community with 
regards to stealing.
    We cannot separate the fact that there is some community 
that is affected by the use of some drug and the trafficking in 
some drug. And the fact that it affects a certain community 
doesn't mean that we should lose sight of the fact that is 
there really this 100:1 ratio that should apply just because it 
is not that particular community, as opposed to a community 
some other place from where the drug went through.
    And I do hope that at some time I can answer Congressman 
Gohmert's question.
    Mr. Scott. Go ahead.
    Judge Hinojosa. Can I?
    Mr. Scott. Yes.
    Judge Hinojosa. You know, Congressman, I am a Longhorn, but 
I have actually been on the bench 25 years. I did 5 years of 
sentencing with no guidelines. That was a very difficult thing 
to do. I have done about 20 years with guidelines. That is a 
very difficult thing to do. It has not lessened the burden. 
What it has done--it has made this a fairer, more due process 
oriented system.
    I used to sentence people and consider the fact that they 
had a gun, the fact that I thought they had played a role in 
the particular offense, the type of drug and with regards to 
the amounts involved, whether they had used violence, whether 
they had prior histories. I didn't have to tell them that I was 
doing that.
    Under the guidelines system, I still have the discretion to 
apply those enhancements, but I have an open dialogue between 
the government and the defense knowing that I am considering 
that. And then I have the discretion. And it is more work. I 
will say that, because any system that is more transparent 
requires more work.
    It was certainly much easier, except for it was still hard 
to make the decision, but it was much easier for me to get on 
the bench and say, ``Okay. Your sentence is 5 years or 
probation or whatever'' without having to go through this open, 
fair discussion that the Sentencing Reform Act of 1984 brought 
into being.
    But it has made it no easier from the standpoint of having 
to make the tough decisions, but I still have the discretion to 
make the fact finding with regards to the enhancements, but it 
is a much fairer system, because I have allowed the prosecutor 
and the defense to address the issues that are important to 
them and then I make the decisions without just coming on the 
bench, as I did for 5 years, having the difficult decision to 
make without as much an open discussion.
    Thank you.
    Mr. Scott. Thank you.
    Judge Gohmert?
    Mr. Gohmert. Thank you.
    And I appreciate you alluding again to your being a 
Longhorn. I didn't know if you were looking for sympathy for a 
disability or what. [Laughter.]
    Judge Hinojosa. I will take anything today. But I will say 
that sentencing is hard, and you know that. It is hard under 
any system. And I say this not because I am the chair of the 
Sentencing Commission, but because I am in a border court, and 
I sentence a lot of people. And I find this a fair system.
    Mr. Gohmert. Well, and then I will take the next question 
back to you. The possibility has been mentioned in trying to 
equalize sentences. What about raising the level of sentence 
for powder cocaine to that the same as crack, instead of going 
the other way? What are your thoughts about that?
    Judge Hinojosa. In all the hearings that we have held 
through the years at the commission, we have had no support 
from anyone who says that the powder penalties right now are 
too low. It has been difficult for us to hear from people that 
powder penalties are too low. I know that in the spirit of 
compromise that might be appealing to some, but we ask you 
please don't do that just for the sake of compromise, because 
increasing someone's penalties for the sake of reducing some 
really doesn't solve the problem.
    The crack ratio needs to be looked at individually and 
separately, and we have heard no interest in increasing the 
penalties for powder by lowering the amount that you get to the 
mandatory minimums.
    Mr. Gohmert. Mr. Cassilly, you had alluded to that earlier 
that maybe that would be the way to go. Could you elaborate on 
that a little bit? What did you base that on?
    Mr. Cassilly. Well, Congressman, I really think that first 
of all in terms of Federal sentencing, I agree that the whole 
Federal emphasis really should be more on distribution and 
possession with intent to distribute and get away from people 
that are in simple possession.
    I serve on our Drug Court Commission in the State of 
Maryland. I really think that the emphasis for people in 
possession--you are users; you are addicts--should be first and 
foremost for treatment and that the Federal emphasis should be 
more on going after the drug sellers and dealers.
    And to the extent that the Federal net is catching people 
that are in possession, then we need to look at that and move 
them into the state courts, where there are probably more 
treatment resources, and focus the Federal system on the 
dealers.
    But then if we are going to focus on drug dealers and 
people who possess with the intent to distribute drugs, then I 
really think that there should be more of an emphasis, too, on 
the powder dealers and bringing them up to where they are 
treated the same way as crack dealers.
    Mr. Gohmert. And Mr. Short, I appreciate your being here. 
You are a great example of someone who can overcome, and what 
is heartbreaking is to see how many do end up going to prison, 
whether it is crack or powder, and then they come up and they 
get right back into it.
    And I have had people that wanted to get out of it, but 
they ended up being drawn back to it. And I am told it is such 
an incredible feeling that once you have had it, you just yearn 
to have it. How long have you been clean now?
    Mr. Short. I wasn't a drug user.
    Mr. Gohmert. Oh, you weren't. You were just distributing.
    Mr. Short. Yes.
    Mr. Gohmert. I see. Well, then that would make it easier to 
kick the habit, if you didn't have it. [Laughter.]
    But here again, I take it from your appearance here, from 
the things you say, your sincerity, that you did learn a 
valuable lesson and you are not distributing. You see the 
damage that has been done, and apparently the President 
understood that sincerity as well.
    So do any of you have a suggestion as to what point an 
amount becomes an issue of distribution, rather than an issue 
of possession?
    Judge Hinojosa. I don't think the amount matters as to when 
something is distribution. The question is what ratio should 
you use between crack and powder, because any amount that you 
distribute is distribution, as opposed to personal use.
    But the issue becomes when it is five grams, if it is 
distribution, should it equal 500 grams of powder to get you 
the same penalty? But any amount that is distribution is going 
to be distribution.
    Mr. Nachmanoff. Ranking Member, if I might just address 
that briefly, Judge Hinojosa, of course, is correct. Any amount 
of distribution, whether it is the .11 grams that was the 
example from our district or whether it is kilos, is 
distribution. It is the act of giving to someone else.
    The bills that are proposed that equalize the punishments 
and allow for individualized punishment by judges can address 
those issues. Obviously, someone who is distributing .11 grams 
generally is going to be viewed as less dangerous and less 
harmful and needing less punishment generally than someone who 
is distributing large amounts, whether it is crack or whether 
it is powder.
    But what this really points to is the fundamental problem 
with the current law, which is the rigid over emphasis on 
quantity as a measure of culpability. And while quantity may be 
relevant to a judge or a court to determine how someone should 
be punished, the idea that it should be the only issue that 
governs the sentence and it should create mandatory minimums is 
what has been, I think, shown to be a failure here.
    It is the ability, to borrow Ms. Shappert's word, to have 
the holistic opportunity to sentence based on the entire 
conduct--whether there is violence, whether there is a gun, 
whether the person was doing this as an accommodation, for 
pecuniary gain--that allows a judge under individualized 
sentencing, as Congress demanded, when it passed the Sentencing 
Reform Act and passed 3553A, which requires judges to consider 
all of these factors and then to impose an appropriate penalty. 
And by eliminating mandatory minimums and equalizing 
punishment, because these substances are pharmacologically 
identical, will allow judges to be in a position to make those 
individualized determinations in a fair and appropriate way.
    Mr. Scott. And I think it is also the way that is 
inappropriate because of the way they calculate the weight. It 
is the weight in the entire operation, not talking about the 
individual's role in that operation. So you can get someone 
with a tangential role in a big operation, and they are saddled 
with the full weight of that operation.
    Mr. Nachmanoff. That is absolutely true. That is an issue 
of reasonable foreseeability. And we see that defendants are 
saddled with transactions that they took no part in, but 
because they were part of an organization.
    Mr. Scott. And because the weight is the only measure.
    Let me go to the gentlelady from Texas, and if people have 
other comments, we will allow you that in a few minutes.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Scott. She has an appointment she has to run to.
    Ms. Jackson Lee. I am sorry to have come in after the 
testimony of many of you. However, I am comfortable with my 
assessment, basically, of the perspectives that you have. And I 
will be quick and pointed.
    And, Mr. Short, let me thank you for being a real example 
of rehabilitation and the idea of the disparity in prosecution 
particularly, because you were a distributor, but I assume of a 
small amount of crack. Is that correct?
    And had you been doing it for a period of time?
    Mr. Short. Yes. I was only just running the drugs for like 
roughly 2 years.
    Ms. Jackson Lee. Two years.
    Do you believe that rehabilitation--some intervention--in 
your life would have been constructive?
    Mr. Short. Yes, I do.
    Ms. Jackson Lee. Let me ask--it is very hesitant to cross-
examine the two distinguished jurists, but if I can ask quick 
questions with quick answers.
    Judge Walton, you just simply want the Federal Government 
to be fair. Do you think the series of bills that we have 
articulated today, a number of them by Members of Congress, 
would begin to address the question of equalizing the 
disparity?
    Judge Walton. Any of them would address it at least to some 
degree, yes.
    Ms. Jackson Lee. And do you believe, for example, H.R. 4545 
is consistent with the Judicial Conference policy? Does it have 
some elements in it, particularly where it says that we focus 
on the kingpins, the traffickers with large amounts?
    Judge Walton. Absolutely.
    Ms. Jackson Lee. And so if we look to, if you will, 
balance--not balance, but if we look to correct the disparity--
100:1--we would be making an important step forward.
    Judge Walton. I believe so. I believe that it would go a 
long way in rebuilding a sense of fairness that people have 
about the process, which I think is very important.
    Ms. Jackson Lee. Let me say that I respect both of you as 
jurists and really supported the decisions of the Supreme Court 
that allow you discretion, but, Judge Hinojosa, even though you 
come as the chairman of the U.S. Sentencing Commission, you 
know and you heard discussions suggesting that the Supreme 
Court decisions didn't cover that. The law still was the 100:1.
    With that in mind, the Sentencing Commission has asked the 
Congress to act. How imperative is it to equalize the system. 
To sort of go back to my comments earlier of due process and 
mercy, how important it is for the Congress to act, for the 
President to sign a reform bill?
    Judge Hinojosa. With regards to the comments about the U.S. 
attorneys, I haven't heard them, but maybe the Justice 
Department can address this.
    It is important, because for many, many years people have 
viewed this as a ratio that is not appropriate. And our 
hearings through the years have presented information to the 
commission that this is not an appropriate ratio. The 
commission is not here to endorse any particular ratio. In 
fact, our position has been no more than 20:1.
    But we are here to urge action with regards to the 
mandatory minimum ratio and emergency amendment authority to 
the commission to therefore quickly put this into effect with 
regards to the guidelines themselves. But it is important to 
address the issue, and we appreciate the fact that this hearing 
is being held, because I think it will be a step in the process 
and certainly be very helpful.
    Ms. Jackson Lee. One of your instructions was for Congress 
to participate in the process of reform. Is that not correct?
    Judge Hinojosa. I would hate to say that the commission is 
instructing Congress to do anything in particular. We would 
urge Congress to engage in the process of reform. Yes, ma'am.
    Ms. Jackson Lee. I think it is appropriate for me to 
characterize it as an instruction, and again, I will not 
attribute it to you.
    Ms. Shappert, I understand your perspective is that 
dangerous persons will go out into the highways and byways of 
American society. But I would just simply argue or make the 
point that if we had intervened a long time ago, we might have 
had a pathway of rehabilitation as opposed to a pathway of 
incarceration.
    What you do with small-time distributors and/or users is 
incarcerate them in a harsh system. They become more hardened. 
They become more criminalized, and the only thing that they can 
do, when they come out after 25 years, 30 years, is to go back 
into the system of crime.
    And so I am not necessarily asking a question. I respect 
your perspective, but I think this is evidence that it has 
failed. The jails are fuller than they have ever been. Families 
are destroyed, because they don't have their loved ones, who 
could be breadwinners. Children are without fathers or mothers, 
and this is absolutely a crisis.
    I hope that we can pass the Second Chance bill that will 
answer some of your questions about the release of these 
individuals, but I think it is imperative, as U.S. attorneys 
and others in the criminal justice system, you see the error of 
your ways and you respect what we are trying to do--prosecute 
the big guys and let the little guys get rehabilitated.
    With that, I yield back my time.
    Ms. Shappert. Respectfully, I will not acknowledge the 
error of my ways, when I don't believe we have erred. We have 
attempted to enforce the law that the Congress gave us. We are 
here to change the law in a spirit of comity with the Congress, 
but in addition to considering those who are in prison, we need 
to look at the victims in the communities, who have no voice, 
and I am here to represent them.
    Ms. Jackson Lee. And that I appreciate, and we are looking 
at the victims. And as I indicated, the scales of justice 
requires us to look at the victims who are not in jail and 
those who are in jail, and I think if we help those who have 
been incarcerated unfairly, we can decrease the number of 
victims who you are trying to represent.
    Ms. Shappert. And there can be no mercy without justice.
    Ms. Jackson Lee. Pardon me?
    Ms. Shappert. There can be no mercy without justice.
    Ms. Jackson Lee. There can be no more what?
    Ms. Shappert. There can be no mercy, respectfully, without 
justice.
    Ms. Jackson Lee. But mercy is balanced, and you are not 
balanced, and that is clear. And the lawyers who are 
representing the state must also be balanced.
    Ms. Shappert. Yes, ma'am.
    Ms. Jackson Lee. And we can work together, I hope, to get 
where you would like to go to ensure that there is justice and 
protection of society at the same time Mr. Short and those who 
I see suffering and languishing in jail because of this 
absolute inequity can have justice and mercy as well.
    And I thank you, Mr. Chairman. [Laughter.]
    Mr. Scott. Mr. Gohmert, do you have another question?
    Mr. Gohmert. Yes, I did want to ask Judge Hinojosa. There 
are some reports that a number of inmates affected by 
retroactive application of the commission's ruling may be 
higher than originally thought. Has there been any update to 
the projections since October of 2007?
    Judge Hinojosa. Congressman Gohmert, we made it quite clear 
that our projection is based on the fact that the model that 
has been in the statutes as we see it would be followed, which 
would be the two-level reduction only and limited to that, and 
only in cases where it would make a difference.
    There has been a change in that, because since we came up 
with the number that had been sentenced and we put out that 
information at a particular date, there have been more people 
that have been sentenced up to November 1st of 2007, before it 
came into effect.
    And there is an added number to that as potentials, but 
again I emphasize, just like Judge Walton has, eventually this 
is a decision that is made by judges on an individual basis.
    I get confused when I hear that witnesses are gone. These 
are people who have already been convicted. And judges have the 
pre-sentencing report, as well as information since the person 
has been in custody, as well as all the other information that 
was available at the time that the court made the decision, 
whether it is the transcript or whatever the sentencing matter, 
but the pre-sentencing report is there. It isn't like you are 
going to have another conviction, where you need witnesses with 
regards to the commissions of offenses.
    Mr. Gohmert. Thank you.
    Judge Hinojosa. Thank you, sir.
    Mr. Gohmert. And gentlemen, with regard to the allegation 
toward Ms. Shappert, let me just remind everybody that was 
applauding there, you have got Justice officials, who were 
supposed to be advocates on one side in this adversary system. 
You have got good defense lawyers we have here before us. And 
the judges are the ones that are supposed to have the 
discretion and utilize mercy and justice as a balance.
    And the Justice Department--I guess if you did anything 
unfair, it would be you followed the law as given to you in 
1986 by people who meant well and created a bad law.
    So thank you.
    Mr. Scott. Thank you.
    There being no further questions, we may have additional 
questions for you, and we would ask you to respond to those 
questions so that their answers can be made part of the record.
    Without objection, we have several letters that we would 
like to get entered into the record, along with four 
testimonies from Human Rights Watch, the ACLU, the Legal 
Defense Fund, and Families Against Mandatory Minimums. The 
hearing will remain open for 1 week for submission of 
additional materials.
    And without objection, this Committee stands adjourned.
    [Whereupon, at 5:23 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record




      Prepared Statement of Chuck Canterbury, National President, 
                 Grand Lodge, Fraternal Order of Police
    Good afternoon, Mr. Chairman, Ranking Member Gohmert, and 
distinguished Members of the Subcommittee on Crime. My name is Chuck 
Canterbury, National President of the Fraternal Order of Police, the 
largest law enforcement labor organization in the United States, 
representing more than 325,000 rank-and-file police officers in every 
region of the country.
    The Fraternal Order of Police has been at the forefront of this 
debate for many years. In previous Congresses, the FOP has supported 
legislation addressing the so-called sentencing ``disparity'' between 
crack cocaine and powdered cocaine by raising the penalties for powder. 
This has been our position for more than a decade, and we stand by it.
    Our immediate concern, however, is the passage and enactment of 
H.R. 4842, introduced by Representative Lamar Smith of Texas, the 
Ranking Member on the full Committee. This bill would prevent the 
recent changes to the sentencing guidelines adopted by the U.S. 
Sentencing Commission from being applied retroactively.
    In the past two years, I have testified twice before the U.S. 
Sentencing Commission. In 2006, I urged them not adopt changes to the 
sentencing guidelines that would lower the penalties for crack cocaine 
offenses by two levels. The Commission had done so on two previous 
occasions, but fortunately those amendments were rejected by Congress 
on each occasion. Regrettably, this time Congress failed to act and the 
amendment lowering the penalties for crack cocaine offenses that was 
adopted went into effect on 1 November 2007.
    Later that same month, I was the only witness from a law 
enforcement organization to appear before the U.S. Sentencing 
Commission to address their plan to apply these new, lowered guidelines 
retroactively and facilitate the release of thousands of crack dealers. 
Obviously, we strongly opposed this action.
    Yet again, the views of the rank-and-file officer--the men and 
women who put their lives on the line to confront, capture, and 
convicted these dealers was disregarded and the Commission decided to 
apply the new guidelines retroactively.
    The Commission's own data indicates that at least 19,500 crack 
dealers will be eligible for early release. It should also be noted 
that these sentencing reductions would be in addition to any other 
reductions the offender received, such as a reduction for cooperation 
with the United States or ``good time'' credit in prison. It is 
important that Congress recognize that these are not ``low-level 
dealers'' or first time offenders. At least 80% of them had previously 
been convicted of a crime, a majority of them have multiple prior 
convictions and 35% of them also possessed a firearm in connection with 
their drug dealing operation. Further, more than 15% of these offenders 
are in the highest criminal history category (VI). Clearly, these 
inmates are far more likely to reoffend.
    These are not empty statistics--but hard facts. While the new 
guidelines have certainly weakened the overall fight against crack-
related crime, retroactive application of the guidelines will have an 
immediate and deleterious effect on public safety and the crime rates 
in our communities. Using the Commission's own data, it is projected 
that at least 2,500 additional crack dealers will be released into the 
community either immediately or within the first year of retroactive 
application. Another 5,000 could be released into the community within 
twenty-four months of the effective date of the retroactive 
application. Further, while the average reduction in sentence is 
approximately 27 months, some offenders--primarily those who are the 
most likely to be high-level dealers with significant criminal 
histories--could see their sentences reduced in excess of 49 months. At 
a time when law enforcement is seeing an increase in crime rates that 
have fallen for more than a decade, it seemed at variance with common 
sense and good public policy to release en masse crack dealers and drug 
offenders into our neighborhoods. Yet, the Commission has voted to do 
so.
    Let me give you some concrete examples as to how the retroactive 
application of these new guidelines may affect real communities and the 
people that live there. Consider the case of Leonard Brown. Mr. Brown, 
before his arrest, conviction, and sentencing, was the main drug 
supplier for Sandersville, Georgia, a rural community with 
approximately 10,000 residents. Mr. Brown, prior to being selected by a 
jury of his peers to serve a sentence that this Commission now deems to 
be too lengthy, has an impressively long criminal history, which 
includes crimes of violence and drug dealing. Yet, despite this 
impressive body of work, the best efforts of local and State law 
enforcement authorities were not sufficient to remove Mr. Brown from 
the community. The State judicial system had become a revolving door 
that resulted in placing violent drug dealers back in their community 
after an all too brief period of incarceration. Obviously, this 
frustrated local and State law enforcement officers as well as the 
residents of Sandersville--whose safety was at risk--while Mr. Brown's 
business was in operation.
    The Federal prosecution and sentencing of Mr. Brown, however, had a 
ripple effect in Sandersville. Admittedly, the actual amounts of crack 
cocaine possessed by Mr. Brown at the time of his arrest for the 
offenses for which he is currently incarcerated were not particularly 
high, but for a community the size of Sandersville, Mr. Brown served as 
a kingpin of sorts, supplying a substantial amount of drugs from his 
trailer. As befits a person of his standing, he employed minors to do 
the actual leg work, exposing them to all the risks, while he reaped 
the rewards. It was not until he was prosecuted by Federal authorities, 
however, that he was held to account for his crimes. His conviction, 
the significant sentence he received and the fact that he would not be 
eligible for parole sent a clear message that there were serious 
consequences for drug dealers if they were prosecuted by Federal 
authorities. It also sent a message to the residents of Sandersville--
that the criminal justice system was not completely broken and that a 
long-time drug dealer like Mr. Brown could and would go to jail and 
stay there.
    If the changes to the sentencing guidelines were made retroactive, 
Mr. Brown's sentence will be reduced by approximately three years, 
making him eligible for immediate release. This also sends a clear 
message--that we are not serious about getting and keeping drug dealers 
out of communities. The residents of Sandersville, Georgia, should be 
outraged because they know it will not take long for Mr. Brown to 
return to business.
    Let me give you another example--a drug dealer from Chattanooga, 
Tennessee by the name of Sylvester Pryor. Like Mr. Brown, his criminal 
history includes possession of crack for resale, possession of deadly 
weapons, and two assaults on a law enforcement officer. He was arrested 
on Federal charges with the aid of a confidential informant and 
sentenced to nine years and six months in prison. If the latest 
revisions to the U.S. sentencing guidelines are made retroactive, Mr. 
Pryor may be eligible for immediate release.
    Jesse Lee Evans was the leader of a drug ring operating in 
Pennington, Alabama. Over the course of a year and a half, he sold 
crack out of his house in Choctaw County until undercover officers 
executed several controlled drug buys enabling his arrest. Mr. Evans 
was classified as Criminal History Category IV and was sentenced to 
more than 21 years, but would be eligible for release immediately if 
the changes to the sentencing guidelines are made retroactive.
    These are but a few examples of how the retroactive application of 
the new rules will have an immediate and certainly very negative effect 
on communities and their residents. Federal prosecutions were brought 
to bear on these two criminals because the State and local systems were 
unable to keep them locked up. With the new guidelines, and certainly 
with applying them retroactively, we risk bringing the revolving door 
into the Federal system.
    I think it is important to remember the incalculable devastation 
wrought on our nation during the crack epidemic--millions of lives were 
damaged and families wrecked by this drug and many of our cities have 
never fully recovered. Just ask the people in Sandersville or 
Pennington how many lives were ruined by Leonard Brown or Jesse Lee 
Evans and their drug businesses. Or ask the officers that were attacked 
by Sylvester Pryor in Chattanooga. As a nation, we worked hard over the 
past fifteen years to reduce our nation's crime rates to historic lows 
and this success was due in large part to the efforts of State and 
local law enforcement and a genuine commitment by the Federal 
government to incarcerate for longer periods of time these offenders 
who dealt in crack cocaine. While other drugs of the moment may have 
eclipsed crack in popularity and availability, the market for crack 
remains massive--with nearly one million Americans who continue their 
addiction to this terrible drug. In our view, retroactive reduction of 
the sentences of the criminals responsible for creating and feeding 
these addictions is a grievous error which will inflict great harm on 
many innocent Americans. For this reason, we urge the Congress to adopt 
H.R. 4842 and to reject the retroactive application of the new 
sentencing guidelines.
    I want to thank you and the Subcommittee in advance for your 
consideration of the view of the more than 325,000 members of the 
Fraternal Order of Police, and I hope that you recognize the sincerity 
of our position.
    I would now be pleased to answer any questions you might have.

                                 
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