[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
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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
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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.