[Senate Hearing 110-672]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-672



                               before the


                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                           FEBRUARY 12, 2008


                          Serial No. J-110-73


         Printed for the use of the Committee on the Judiciary

                     U.S. GOVERNMENT PRINTING OFFICE
46-050 PDF                 WASHINGTON DC:  2009
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel

                    Subcommittee on Crime and Drugs

                JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts     LINDSEY O. GRAHAM, South Carolina
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RICHARD J. DURBIN, Illinois          TOM COBURN, Oklahoma
                       Todd Hinnen, Chief Counsel
                  Walt Kuhn, Republican Chief Counsel

                            C O N T E N T S




Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................     1
    prepared statement...........................................   141
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     5
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   178
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   198
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4


Felman, James E., Co-Chair, Committee on Sentencing, Criminal 
  Justice Section, American Bar Association, Washington, D.C.....    16
Hinojosa, Ricardo H., Chair, U.S. Sentencing Commission, 
  Washington, D.C................................................    10
Shappert, Gretchen C.F., U.S. Attorney, Western District of North 
  Carolina, Department of Justice................................     7
Volkow, Nora D., M.D., Director, National Institute on Drug 
  Abuse, National Institutes of Health, Department of Health and 
  Human Services, Washington, D.C................................    14
Walton, Reggie B., District Judge for the District of Columbia, 
  and Member, Criminal Law Committee, Federal Judicial 
  Conference, Washington, D.C....................................    12

                         QUESTIONS AND ANSWERS

Responses of James E. Felman to questions submitted by Senators 
  Biden Leahy, Kennedy and Coburn................................    35
Responses of Ricardo H. Hinojosa to questions submitted by 
  Senators Biden, Leahy, Kennedy, Feingold and Coburn............    57
Responses of Gretchen Shappert to questions submitted by Senators 
  Biden, Leahy, Kennedy, Feingold and Coburn.....................    74
Responses of Nora D. Volkow, M.D. to questions submitted by 
  Senators Biden, Leahy, Kennedy and Coburn......................    97
Responses of Reggie B. Walton to questions submitted by Senators 
  Biden, Leahy, Kennedy, Feingold and Coburn.....................   103

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Caroline Fredrickson, Director 
  and Jesselyn McCurdy, Legislative Counsel, Washington, D.C., 
  statement and letter...........................................   122
Arboleda, Angela M., Director, Civil Rights and Criminal Justice 
  Policy, National Council of La Raza, Washington, D.C., 
  statement......................................................   132
Cassilly, Joseph I., State's Attorney, Harford County, Bel Air, 
  Maryland and President-Elect, National District Attorneys 
  Association, Alexandria, Virginia, statement and attachment....   143
Families Against Mandatory Minimums (FAMM), Julie Stewart, 
  President, Washington, D.C., letter............................   148
Felman, James E., Co-Chair, Committee on Sentencing, Criminal 
  Justice Section, American Bar Association, statement...........   150
General Board of Church and Society of The United Methodist 
  Church, Jim Winkler, General Secretary, Washington, D.C., 
  letter.........................................................   158
Hernandez, Carmen D., President, National Association of Criminal 
  Defense Lawyers, Washington, D.C., statement...................   159
Hinojosa, Ricardo H., Chair, U.S. Sentencing Commission, 
  Washington, D.C., statement....................................   164
Hynes, Charles J., District Attorney, Office of the District 
  Attorney, Kings County, Brooklyn, New York, letter.............   175
Kramer, A.J., Federal Defender for the District of Columbia, 
  Washington, D.C., statement....................................   182
Martin, John S., Jr., Attorney at Law, Martin & Obermaier, LLC, 
  New York, New York, letter and attachment......................   200
Mennonite Central Committee (MCC), Rachele Lyndaker Schlabach, 
  Director, Washington Office, Washington, D.C., letter..........   205
NAACP Legal Defense & Educational Fund, Inc., (LDF), Theodore M. 
  Shaw, Director-Counsel, Washington, D.C., letter...............   206
National Association of Criminal Defense Lawyers, Carmen D. 
  Hernandez, President, Washington, D.C., letter.................   212
Piper, Bill, Director, National Affairs, Drug Policy Alliance, 
  Washington, D.C., statement and letter.........................   213
Religious Action Center of Reform Judaism, Rabbi David 
  Saperstein, Director and Counsel, Washington, D.C., letter.....   220
The Sentencing Project, Marc Mauer, Executive Director, 
  Washington, D.C., letter.......................................   221
Shappert, Gretchen C.F., U.S. Attorney, Western District of North 
  Carolina, Department of Justice, statement.....................   223
Shelton, Hilary O., Director, NAACP Washington Bureau, 
  Washington, D.C., statement and letter.........................   234
Students for Sensible Drug Policy (SSDP), Kris Krane, Executive 
  Director, Washington, D.C., letter.............................   241
Taifa, Nkechi, Esq., Senior Policy Analyst, Open Society Policy 
  Center, and Convener, Justice Roundtable, Washington, D.C., 
  statement......................................................   243
Unitarian Universalist Association of Congregations, Robert C. 
  Keithan, Director, Washington, D.C., letter....................   256
Volkow, Nora D., M.D., Director, National Institute on Drug 
  Abuse, National Institutes of Health, Department of Health and 
  Human Services, Washington, D.C., statement....................   257
Walton, Reggie B., District Judge for the District of Columbia, 
  and Member, Criminal Law Committee, Federal Judicial 
  Conference, Washington, D.C., statement........................   264
Washington Times, February 12, 2008, article.....................   273



                       TUESDAY, FEBRUARY 12, 2008

                                       U.S. Senate,
                           Subcommittee on Crime and Drugs,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Joseph R. 
Biden, Jr., Chairman of the Subcommittee, presiding.
    Present: Senators Biden, Kennedy, Feingold, and Sessions.

                   FROM THE STATE OF DELAWARE

    Chairman Biden. Good afternoon. The hearing will come to 
order. We are going to start a few minutes earlier because two 
of my colleagues who will be here and who have great interest 
in the subject will come and make an opening statement and will 
have to leave and come back. So I will get my opening statement 
out of the way.
    I say to the witnesses all, welcome. Delighted to have you 
here. We appreciate your taking the time.
    What we will do is I will make an opening statement here, 
and then, I am told Senators Kennedy and Feingold each plan on 
coming, and if any of my Republican colleagues do, and they 
have to go back to another Committee meeting, then I will let 
them make an opening statement, and we will turn to all of you 
for your statements, if that is appropriate, if you do not 
    So let me begin by saying thanks on behalf of the 
Subcommittee for being here, all of you. We are going to 
examine an issue that has long been the subject of vigorous 
debate and study: the difference in the way in which Federal 
law treats drug offenses involving powder cocaine versus crack 
    As you all know, under the current law, the mere possession 
of 5 grams of crack, which is slightly less than the weight two 
sugar cubes, and these are about the size--you cannot see 
these, but these look about the size of little sugar cubes 
here--carries the same 5-year mandatory minimum sentence as 
distributing 500 grams of powder cocaine, the amount of sugar 
that I just held up. I will make it clear: This is all sugar up 
    Chairman Biden. And not sugar in the parlance of the street 
    Many have argued that this 100-to-1 disparity is arbitrary, 
unnecessary, and unjust, and I agree. And I might say at the 
outset in full disclosure, I am the guy that drafted this 
legislation years ago with a guy named Daniel Patrick Moynihan, 
who was the Senator from New York at the time. And crack was 
new. It was a new ``epidemic'' that we were facing. And we had 
at that time extensive medical testimony talking about the 
particularly addictive nature of crack versus powder cocaine. 
And the school of thought was that we had to do everything we 
could to dissuade the use of crack cocaine. And so I am part of 
the problem that I have been trying to solve since then, 
because I think the disparity is way out of line.
    The current disparity in cocaine sentencing I do not think 
can be justified on the facts we know today and the facts we 
operated on at the time we set this up.
    In 1986, crack was the newest drug on the street, and 
Congress was told that this smokeable form of cocaine was 
instantly addictive and that its effect on a child if smoked 
during pregnancy was far worse than that of other drugs and 
that it would ravage our inner cities.
    I remember one headline that summed it up well, and it read 
``New York City Being Swamped by `crack'; Authorities Say They 
Are Almost Powerless to Halt Cocaine.'' And they called it 
``the summer of crack'' in that headline.
    In Congress, more than a dozen bills were introduced to 
increase the penalties for crack. Because we knew so little 
about it, the proposals were all over the map, ranging from the 
Reagan administration's proposal of a 20-to-1 disparity to 
Senator Chiles's proposal--the late Senator Chiles, late 
Governor Chiles--of 100-to-1.
    Senators Byrd, Dole, and I led an effort to enact the Anti-
Drug Abuse Act of 1986 which established the current 100-to-1 
disparity. Our intentions were good, but much of our 
information turned out not to be as good as our intentions. 
Each of the myths upon which we based the sentencing disparity 
has in some ways been dispelled or altered. We know that crack 
and powder cocaine are pharmacologically identical, and they 
are simply two forms of the same drug. Crack and powder cocaine 
cause identical psychological and physiological effects once 
they reach the brain. Both forms of cocaine are potentially 
    The two drugs' effects on a fetus are identical. The 
``generation of crack babies'' many predicted, including me, 
has not come to pass. In fact, some research shows that the 
prenatal effects of alcohol exposure are ``significantly more 
devastating to the developing fetus than cocaine''--although I 
would point out that if you ingested the same amount of powder 
cocaine as crack cocaine as frequently, it would have a 
profound effect;
    Crack simply does not incite the type of violence that was 
feared. Gangs that deal in other types of drugs are every bit 
as violent as crack gangs. I would argue meth is even more 
dangerous in terms of the way the gangs operate.
    After 21 years of study and review, these facts have 
convinced me that the 100-to-1 disparity cannot be supported 
and that the penalties for crack and powder cocaine trafficking 
merit similar treatment under the law.
    The past 21 years has also revealed that the dramatically 
harsher crack penalties have disproportionately impacted on 
inner-city communities, the African-African community: 82 
percent of those convicted of crack offenses in 2006 were 
    With many of the starting premises not as starkly viewed as 
being correct, last June I introduced the Drug Sentencing 
Reform and Cocaine Kingpin Trafficking Act, which eliminates 
the disparity between crack and powder cocaine offenses. 
Totally eliminates it. It does so without raising penalties for 
powder because there is not a shred of evidence that shows 
powder penalties are inadequate.
    My bill also eliminates the 5-year mandatory minimum 
sentence for simple possession of crack, the only mandatory 
minimum for possession of a controlled substance.
    It focuses Federal resources where we need them most--on 
major drug kingpins, not users and low-level dealers. And it 
provides sentencing enhancements for all drug offenses that 
involve a dangerous weapon or violence.
    And it provides $30 million in grants to State and local 
governments to fund programs that improve the availability of 
drug treatment for offenders in prisons, jails, juvenile 
facilities, and those on supervised release.
    I want to commend Senators Hatch and Sessions for their 
leadership on this issue and their respective bills to reduce 
the disparity. I hope we can work together to permanently fix 
this injustice, and I am willing, as I am sure they are, to 
consider one another's proposal and see if we can work 
something out.
    There is a growing movement for bold action on this issue. 
Eight members of this Committee--four Republicans and four 
Democrats--are supporting one of the bills pending before this 
    In November, the bipartisan United States Sentencing 
Commission sent Congress an amendment to address what it 
called, and I quote, the ``urgent and compelling'' crack/powder 
disparity. Congress accepted the measure, which modestly 
reduced crack penalties pending comprehensive congressional 
    The report that accompanied the Sentencing Commission's 
amendment is the fourth such report--and I have a copy of it 
here--that the Commission has issued in 12 years calling for 
Congress to take actions to substantially reduce the crack/
power sentencing disparity.
    Editorial boards around the country have also urged 
Congress to act. The New York Times, San Francisco Chronicle, 
St. Petersburg Times, the Detroit Free Press, and Miami Herald 
all have endorsed my bill, and I am sure there are as many that 
have endorsed the bill of my colleagues who have an alternative 
    So I welcome debate and discussion on this issue because I 
am not convinced that any disparity in the sentencing of crack 
and powder defendants is justified given what we have come to 
    Now I would like to turn over the floor to my distinguished 
colleague from Alabama, Senator Sessions.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and I believe we 
are now on a path to do something right about this problem. I 
have for some time believed that the crack/powder disparity 
cannot be justified. I authored legislation in the year 2000 
with Senator Hatch, and we have just not been able to get the 
ball rolling. So I am glad you are having this hearing. It is 
time--I mean, it is past due. We need to confront this problem.
    Senator Biden, I was a Federal prosecutor when you passed 
the Sentencing Guidelines; you and Senator Thurmond and Senator 
Kennedy and others supported that. I believed then and believe 
today that it was a tremendous step forward because Federal 
judges literally could give people probation or 20 years in 
jail for the same offense, no matter how much cocaine or how 
little cocaine. And it created uniformity.
    But I believe, as Members of the Senate, if we are going to 
declare what sentences should be within narrow ranges, we ought 
to listen to what is happening out there. Let's see what our 
experience teaches us. Does it teach us that the level of 
sentencing that we have done is perfect, or should it be 
    So I would just say with this aspect of the Federal 
Sentencing Guidelines, it is out of sync. It is not justified. 
I do not believe that we can justify the severity of sentences 
that we are receiving for crack cocaine.
    Now, I do remember, just like you said, Mr. Chairman, I was 
a prosecutor in the mid-1980s. Crack started arising, and 
people predicted it would spread. And it shocked me how fast it 
spread to rural Alabama--not just an urban area like Mobile, 
where I was, but throughout the rural areas. People were using 
crack, and it changed the--gangs did form. There was a great 
deal of violence, and we utilized that to prosecute gangs.
    I noticed it was surprising to me how many of the people 
that were convicted had charges for murder and armed robbery 
and other kinds of charges that tended to be violent gangs.
    But I think we are at a point now where this 100-to-1 
disparity that does fall heavier on the African-American 
community simply because that is where crack is most often used 
has got to be fixed. I want to join you in this, and let's do 
it this year. Let's get it done.
    Chairman Biden. I hope we can. I would point out, back at 
the time we were writing this legislation, the Sentencing 
Commission, and I recall testimony from distinguished witnesses 
pointing out that in Florida, unless someone had 5 kilos of 
cocaine, they were not moved in the Federal system. There was a 
swamp in everything. But rather than go back and talk about 
what it was, I would like to get this expert testimony as to 
how they see it now.
    With your permission, Senator, before you walked in, I was 
asked--Senator Feingold as well as Senator Kennedy have a keen 
interest in this and are not going to be able to stay for the 
whole hearing. Would you mind if they made brief opening 
    Senator Sessions. No. That would be fine. I would yield.

                       STATE OF WISCONSIN

    Senator Feingold. I thank both the Chairman and Senator 
Sessions very much. It is a little out of order, so I do 
appreciate it. And thank you for holding the hearing and for 
your strong leadership on this, Senator Biden.
    The disparity in sentencing between crack and powder 
cocaine offenses is a serious blemish on our system of justice. 
Over the past 20 years, it has become clear that neither public 
health nor law enforcement considerations justify the 
disparity. To the contrary, its effects are pernicious. It 
diverts resources to low-level offenders and exacerbates 
overcrowding in Federal prisons, and it has a dramatically 
disproportionate effect on African-Americans, which undermines 
confidence in the Federal justice system in many communities.
    I applaud the U.S. Sentencing Commission for taking an 
important step to address this problem by lowering the base 
offense level for crack cocaine offenses. I wrote to the 
Commission in December, along with Senator Webb and Senator 
Kerry, urging the Commission to make this adjustment 
retroactive, and I was pleased that it did so. As the 
Commission recognized, a sentence that is unfair for people who 
are sentenced today is equally unfair for people who were 
sentenced a year or a decade ago. That is why the Commission 
for the past 20 years has made every reduction in drug 
sentencing retroactive.
    Last week, testifying before the House Judiciary Committee, 
Attorney General Mukasey opined that applying the adjustment 
retroactively could threaten public safety by allowing the 
early release of violent crack cocaine offenders. But no 
offender will be entitled to automatic release. A judge will 
examine every case individually to determine whether a reduced 
sentence is appropriate. The Attorney General expressed concern 
that this would be too much of a burden on judges, but the 
Judicial Conference of the United States supported making this 
adjustment retroactive. We should listen to the expertise of 
the Sentencing Commission and the Judicial Conference, and we 
should not undo the progress that has been made.
    Instead, we should focus on furthering this progress. I am 
a cosponsor of Chairman Biden's bill, S. 1711, which would 
eliminate the disparity by increasing the amount of crack 
cocaine necessary to trigger the mandatory minimum sentence. It 
would also eliminate the 5-year mandatory minimum sentence for 
possession of crack cocaine, which is the only mandatory 
minimum that exists for simple drug possession. It would 
substitute more effective tools, such as grants for improving 
drug treatment for prisoners; increased monetary penalties for 
major drug traffickers; and revised guidelines, if the 
Sentencing Commission finds it appropriate, to reflect the use 
of a dangerous weapon or violence in drug offenses. I commend 
Senator Biden for the bill, and I am pleased to support it.
    For two decades, the evidence has accumulated that the 
current approach to crack cocaine offenses is wrong. On 
multiple occasions, the U.S. Sentencing Commission has urged 
Congress to address this problem. It is high time that we 
fulfill our responsibility as legislators to fix this law so 
that we can begin to wash away the stain it has left on our 
system of justice.
    Thank you very much, Mr. Chairman.
    Senator Sessions. Mr. Chairman, I just briefly would say I 
do value the Sentencing Commission's recommendations. I think 
we in Congress ought to listen to them because we define the 
sentences so narrowly that we need constant feedback on what 
good public policy is.
    Second, I do want to emphasize that we have had a 
significant reduction in drug use in America and we have broken 
up--and violent crime is down, and a large part of that is 
tough sentences. There is just no doubt about it. Not many 
people shoot people. Not many people sell cocaine. So focusing 
on those and having tough sentences is not bad.
    Finally, I would like to thank my former Attorney General 
colleagues. Senators Salazar, Pryor, and Cornyn have joined 
with me in introducing the legislation to reduce this 
disparity. They have all been prosecutors. They know the real 
world out there. And we have all concluded we need to do better 
and create a more legitimate sentencing range for these kind of 
    Thank you.
    Chairman Biden. Thank you.
    Now let me introduce our distinguished panel of witnesses. 
First, Gretchen Shappert will testify for the Department of 
Justice. Ms. Shappert is currently a United States Attorney for 
the Western District of North Carolina, a post she was 
appointed to in the year 2004.
    Next is the Honorable Ricardo Hinojosa. The judge was 
appointed to the Sentencing Commission by President Bush in 
2003 and has chaired it since 2004. He also serves as United 
States District Judge for the Southern District of Texas, and 
he was appointed to that post in 1983 by President Reagan.
    Testifying for the Federal Judicial Conference is the 
Honorable Reggie B. Walton, United States District Court Judge 
for the District of Columbia. After President Bush nominated 
Judge Walton in 2005, former Chief Justice Rehnquist appointed 
Judge Walton to the Judicial Conference's Criminal Law 
Committee. Prior to his appointment to the bench, Judge Walton 
served as President George H.W. Bush's Associate Director for 
the Office of National Drug Control Policy and as then-
President Bush's senior White House adviser on crime.
    And I am going to mispronounce the name. Dr. Nora Volkow 
serves as the Director of the National Institute of Drug Abuse 
of the Department of Health and Human Services and is a 
research psychiatrist and scientists. The doctor pioneered the 
use of brain imaging to investigate the toxic effects on drugs 
and their addictive properties.
    And James Felman is a Co-Chair of the Committee on 
Sentencing in the Criminal Justice Section of the American Bar 
Association and has handled several high-profile criminal 
appeals as an expert in Federal sentencing law.
    I welcome you all, and I would invite your testimony in the 
order you have been introduced.


    Ms. Shappert. Thank you, Chairman and Senator Sessions and 
members of the Subcommittee. I appreciate the opportunity to 
appear before you on behalf of the Department of Justice to 
discuss Federal cocaine sentencing policies. My name is 
Gretchen Shappert. I am the United States Attorney for the 
Western District of North Carolina. I have been in public 
service most of my professional life, both as a prosecutor and 
as an assistant public defender. And last week, I completed 
4\1/2\ consecutive weeks of trial in my district, two of the 
cases involving individuals who were distributing crack 
cocaine. Indeed, much of my career in public service has been 
defined by the ravages of crack cocaine.
    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 disparate impact. As this Subcommittee 
knows, since the mid-1990s, there has been a great deal of 
discussion and debate on the issue. I am here today on behalf 
of the Department of Justice to affirm our willingness to 
engage in discussions with this Subcommittee regarding the 
current statutory differential between crack and powder 
    Any discussion of the crack and powder cocaine differential 
must also address the serious public safety concerns and court 
administrability issues raised by the impending retroactive 
application of the Sentencing Guideline Amendments to crack 
cocaine offenders. Because Congress only has until March 3rd to 
address the United States Sentencing Commission's decision, 
Attorney General Mukasey last week asked Congress to quickly 
enact legislation to prevent the retroactive application of the 
Sentencing Commission Amendments. Specifically, he asked 
Congress to ensure that serious and violent offenders remain 
incarcerated for the full terms of their sentences. In calling 
for action, he emphasized that ``we are not asking this 
Committee to prolong the sentences of those offenders who pose 
the least threat to their communities, such a first-time 
offenders and non-violent offenders. Instead,'' he said, ``our 
objective is to address the Sentencing Commission's decision in 
a way that protects public safety and addresses the adverse 
judicial and administrative consequences that will result.''
    Mr. Chairman, because you asked that the Department of 
Justice address the sentencing disparity issue first, I will 
begin with that, and then turn to our deep concerns about 
retroactive application of the guidelines.
    It has been said, and I certainly believe based upon my 
experience, that whereas cocaine powder destroys an individual, 
crack cocaine destroys a community. The emergence of crack 
cocaine as the major drug of choice in several Charlotte 
communities in the late 1980s dramatically transformed the 
landscape. We saw an insurgence of drug-related violence, open-
air drug markets, and urban terrorism unlike anything we had 
experienced in the past. The sound of gunfire after dark was 
not uncommon. Families were afraid to go out of their homes at 
night for fear of violence, and individuals slept in their 
bathtubs to avoid stray gunfire.
    I have also seen the dramatic results when Federal 
prosecutors, allied with local law enforcement and community 
leaders, make a commitment to take back neighborhoods from the 
gun-toting drug dealers who have laid claim to their 
communities. The successes of our Project Safe Neighborhoods 
initiatives, combined with Weed and Seed, have had a tremendous 
transforming effect on communities.
    In Shelby, North Carolina, for example, Federal prosecutors 
initiated prosecutions of violent crack-dealing street gangs 
and helped to slash the crime rate in that community, enabling 
community leaders to begin to deal with community problems, to 
build a community garden, to initiate truancy programs and 
sporting programs for young people. Traditional barriers are 
breaking down, and Shelby is a thriving and diverse Southern 
city, and this would not have happened but for a systematic 
response to the cocaine problem.
    In the jury trial I just completed last Wednesday night, 
the jury heard stories about gun-toting drug dealers kidnapping 
one of their co-conspirators and holding him for ransom. These 
are the sort of things that we have seen and associated with 
crack dealing.
    I know from my conversations with prosecutors across the 
country that our experience in North Carolina is not unique, 
and my purpose in being here is to underscore the importance of 
continuing strong initiatives to fight drug violence.
    Toward this end, we believe that any reform in cocaine 
sentencing must satisfy two important conditions: first, any 
reforms should come from the Congress, not the Sentencing 
Commission; second, any reforms, except in very limited 
circumstances, should apply only prospectively.
    Bringing the expertise of the Congress to this will give 
the American people the best chance for a well-considered and 
fair result that takes into account not just the differential 
between crack and powder on offenders, but the implications of 
crack and powder cocaine trafficking on the communities and 
citizens whom we serve.
    What we are talking about is whether the current balance 
between the competing interests in drug sentencing is 
appropriate. We are trying to ascertain what change will ensure 
that prosecutors will have the tools to effectively combat drug 
dealers like those who have terrorized cities in North Carolina 
while addressing the concerns about the present structure's 
disproportionate impact upon African-American offenders. This 
is a decision for which the Congress and this Subcommittee are 
made. Indeed, the United States Sentencing Commission itself 
recognized this fact when it delayed retroactive implementation 
of the reduced crack cocaine guideline until March 3rd, thereby 
giving this Congress a short window to review and consider the 
broader implications of policy choices.
    In considering options, we continue to believe that a 
variety of factors fully justify higher penalties for crack 
offenses. In the cases I have prosecuted, I have seen the 
greater violence associated with crack cocaine distribution, 
and the Sentencing Commission has shown a higher rate of 
recidivism, a higher rate of management enhancements, and a 
higher rate of related violence associated with crack 
    But beyond the violence and beyond the increased 
recidivism, beyond the leadership enhancements, crack cocaine 
is, quite simply, different in its impact upon communities from 
powder cocaine. Crack and powder are not equal in their 
effects, and the law must recognize that differential. To treat 
crack and powder cocaine as the same would be to disregard the 
disproportionate impact these two drugs have on communities, 
would disregard how crack is distributed, particularly street-
level drug dealers who have terrorized local neighborhoods. It 
would disregard the greater level of violence associated with 
crack. It would disregard the more rapid high and potential 
addiction associated with crack cocaine and would disregard the 
corrosive effects that crack cocaine has had on families, 
communities, and human dignity.
    We in the Department of Justice believe that there is a 
consensus that crack cocaine and powder are different in their 
consequences, and the law must reflect that difference. At the 
same time, we recognize that there is not a consensus as to how 
the law should codify that difference and what the penalties 
should be. We intend to work with Congress to develop that 
    As I indicated, the second condition of any reforms to 
cocaine sentencing should also apply only prospectively, except 
in very limited circumstances. Without finality, the criminal 
law is deprived of its most significant deterrent effect. Even 
when the Supreme Court found constitutional infirmities 
affecting fundamental rights of criminal defendants, it rarely 
has applied those rules retroactively. For example, the Supreme 
Court has not made its decision in Booker retroactive.
    The shortcomings of retroactive application of any new 
rules are illustrated starkly in the Sentencing Commission's 
recent decision to extend eligibility for its reduced crack 
penalty provisions to more than 20,000 crack offenders already 
in Federal prisons. The consequences of relitigating potential 
sentence reductions for 20,000-plus offenders is like a tsunami 
hitting the Federal court system.
    Proponents of retroactivity argue that we should not be 
concerned about the most serious and violent offenders being 
released early because a Federal judge will still have to 
decide whether to release such offenders. But that misses an 
important point. The litigation and effort to make such 
decisions in so many cases forces prosecutors, U.S. marshals, 
probation officers, and judges to dedicate limited resources to 
keep in prison defendants whose judgments have already been 
made final under the rules that we all understood, and the 
impact will be disproportionate. The greater impact will occur 
in those districts that have borne the greatest problems in the 
past. Fully 50 percent of the cases involving retroactivity 
will impact the Fourth, Fifth, and Eleventh Circuits. In my own 
district, 536 defendants are eligible for resentencing. That 
represents approximately two-thirds of our caseload for an 
entire year. And the litigation is likely to be far more 
complicated and drawn out than many proponents of retroactivity 
    I am informed that Federal defenders in some areas have 
already issued guidance to Federal defense counsel urging them 
to argue for complete full-blown sentencing hearings. 
Prosecutors are at a serious disadvantage if this occurs. 
Agents have retired, witnesses are no longer available, files 
have been archived, and the original prosecutors have moved on. 
Defending the community against violent offenders is very 
difficult if you no longer have the evidence.
    We believe that a minimum of 1,600 offenders will be 
eligible for immediate release. Many of those prisoners 
eligible for release will not have the benefit of the prison 
re-entry programs we associate with effectively moving people 
back into their communities. And recidivism is a fundamental 
concern. We know from the Sentencing Commission's findings in 
2004 that the Criminal History Category III reflects a 34-
percent likelihood of recidivating; a Criminal History Category 
VI reflects a 55-percent likelihood of recidivating, and that a 
large number of the individuals in this population eligible for 
resentencing are looking at a likelihood of recidivism.
    Mr. Chairman, the Department of Justice is open to 
addressing the differential between crack and powder cocaine as 
part of an effort to resolve the crack retroactivity issue. 
Thank you for inviting me to participate in this important 
public hearing. I will be happy to respond to questions.
    [The prepared statement of Ms. Shappert appears as a 
submission for the record.]
    Chairman Biden. Thank you very much.

                  COMMISSION, WASHINGTON, D.C.

    Judge Hinojosa. Chairman Biden, Ranking Member Sessions, 
Senator Kennedy, I appreciate the opportunity to appear before 
you today.
    The United States Sentencing Commission 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 cocaine 
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 revisions of the current statutory 
penalties and, therefore, must be legislated by Congress. The 
Commission continues to encourage Congress to take legislative 
action on this important issue, and it views today's hearing as 
an important step in that process and thanks you for holding 
this hearing.
    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 submitted in writing.
    In preliminary fiscal year 2007 data, we see a continuation 
of trends we have seen with respect to crack cocaine and powder 
cocaine offenses through the years. The Commission obtained 
information on 6,175 powder cocaine cases, which represent 
approximately 25 percent of all drug-trafficking 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-Americans, while in 1992 it was 91.4 percent.
    Powder cocaine offenders are now 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 Presentence Report from a 
25-percent random sample of crack and powder cocaine cases for 
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, 54.4 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 involve 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 from fiscal year 2006 data 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 has shown that 
Federal cocaine sentencing policy, as it provides heightened 
penalties for crack cocaine offenses, continues to come under 
almost universal criticism from representatives of the 
judiciary, criminal justice practitioners, academics, and 
community interest groups.
    The Commission remains committed to its recommendation in 
2002 that any statutory ratio should be no more than 20-to-1. 
Specifically, consistent with its May 2007 report, the 
Commission strongly and unanimously--the bipartisan United 
States Sentencing 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; and reject 
addressing the 100-to-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 disparities that currently 
exist in Federal cocaine sentencing policy.
    Again, I thank you for the opportunity to testify before 
you today, and I look forward to answering any of your 
questions, and the Commission strongly thanks you for having 
held this hearing, Senator Biden.
    [The prepared statement of Judge Hinojosa appears as a 
submission for the record.]
    Chairman Biden. Thank you, Judge.
    Judge Walton?


    Judge Walton. Good afternoon. Thank you, Senator Biden, 
Senator Kennedy, and Senator Sessions. It is a pleasure and an 
honor to have the opportunity to appear here personally, but 
also on behalf of the Judicial Conference.
    I have thought about what I could say--I am not going to 
read my testimony; you have that--I will emphasize in the 
summary of my written testimony the perspective that I bring to 
this issue. As you know, I worked in the first Bush 
administration in the drug office and was involved in a lot of 
these issues at that time. As I thought about what I would say 
to you here today, I thought about, well, why did I go to law 
school? I went to law school--
    Chairman Biden. I ask myself that question a lot.
    Judge Walton. Well, I went to law school because I saw 
injustices that were taking place as I grew up. And, 
unfortunately, a lot of those injustices were based upon race. 
And I felt that if I became a part of the system, maybe I could 
do something to ensure that whenever somebody walked into a 
court of law in this country, they would be treated fairly and 
that they also would be treated equally.
    As I thought about the sentencing situation as it relates 
to crack and powder, I thought about the many times when I have 
sat in judgment and had to impose sentences. And most often 
they were young African-American males whom I was sentencing. 
And I knew that if I was sentencing them for something other 
than crack cocaine, the sentence that I had to extract would be 
significantly less. And it hurt me to have to impose those 
sentences, and that is not because I am a light sentencer. I do 
not think anybody you would talk to would tell you that I am 
lenient when it comes to crime. But I do believe in fundamental 
fairness, and the Sentencing Commission--and I applaud them for 
what they have done--reached the conclusion that it is 
fundamentally unfair to maintain the present system that we 
    I do not disagree that crack has had an impact on 
communities, but there are a lot of drugs that have an impact 
on communities. I know in this city, for example, PCP is having 
a significant impact on communities, and I also know that, yes, 
drugs can destroy communities and individual lives. But, also, 
moving so many of our young African-American males out of black 
communities is also having a very detrimental impact.
    One of the other things I do in addition to my regular job 
is I am Chairman of the National Prison Rape Elimination 
Commission, and I travel all throughout the country and go into 
prisons. And what I see in our prisons is sad. You see all of 
these young black males who are locked up, their lives 
destroyed; their communities, as a result of them not being 
there, destroyed. And that is not to say that we should not 
punish people. I believe in strong punishment. I believe that 
when people do wrong, punishment should be extracted. But that 
punishment has to be fair. And I know from my own personal 
experience, I have had jurors, potential jurors, who have told 
me that they would refuse to sit as a juror in a case involving 
crack cocaine because they know of the unfairness, and they 
will not be a part of an unfair system.
    And I know there are many people in the community who will 
not come forward, who will not cooperate, who will not 
participate in the process, because they see it as 
fundamentally unfair. I do not think that is good for our 
American system of justice for a sizable number of people to 
feel that our system is unfair and, therefore, do not want to 
be a part of it.
    I know in many of our African-American communities, yes, 
they are being harmed by drugs, but they are also being harmed 
by the perspective that the system of laws we have as it 
relates to crack cocaine is not fair. And as a result of their 
perspective about that unfairness, they have a jaded 
perspective about the entire criminal justice system, and that 
is something I believe it is time to address.
    As far as the retroactivity issue is concerned, I too have 
concerns about people being released who might pose a danger to 
the community. But one of the things that I think we have to 
appreciate is the value of judges who have the opportunity to 
look at cases and make an individual decision as to whether 
this particular person should or should not be released.
    If you enact legislation, what is that legislation going to 
say if we repeal the courageous decision taken by the 
Sentencing Commission? Is it going to say that any level of 
violence at any time in a person's history is going to preclude 
him or her from the benefit of what has been determined to be a 
fundamentally unfair law? Because if that is what is going to 
happen, are we going to say, well, if they were violent at the 
time they committed the offense, but they have been locked up 
for 15 years, and during those 15 years they have completed 
educational programs, they have completed a drug program, they 
have been exemplary inmates but, nonetheless, because they have 
this prior history where maybe they carried a gun at the time 
they committed the offense or maybe they did engage in some 
violence 15 years ago, we are going to categorically say that 
across the board they cannot be released?
    On any given day in America, we have probably about 3 
million of our fellow citizens locked up. And I do not have a 
problem, as I say, locking people up, but I think as a society 
we have to address that issue. We are expending far too much 
money to incarcerate people, and we incarcerate some people for 
far too long than they have to be incarcerated and who could 
otherwise be returned to the community and become contributing 
members of our society. I have seen individuals who have turned 
their lives around. And while, as I say, punishment is 
important, I think that punishment has to be fair. And I 
applaud you and your fellow Senators who have decided to take 
this issue on, and I sure hope that at some time during the 
course of this year the Senate will see fit to rectify this 
problem, which is, I think, causing many of our fellow 
Americans to not believe in our judicial process.
    Thank you very much.
    [The prepared statement of Judge Walton appears as a 
submission for the record.]
    Chairman Biden. Thank you very much for your testimony, 
Judge. And no one has ever accused you--
    Chairman Biden. Please refrain from demonstrations, pro or 
otherwise. But I assure you, no one has ever accused you of 
being lenient, but they have viewed you as being fair, and I 
appreciate your straightforward testimony.


    Dr. Volkow. Yes, good afternoon. I want to thank you, 
Chairman and members of the Subcommittee, for giving me the 
opportunity and the privilege to come and discuss with you what 
we have learned from science vis-a-vis the effects of cocaine 
in the brain, and with particular emphasis on cocaine 
hydrochloride (powder) and cocaine freebase (crack). I also 
want to speak to you not just as the Director of the National 
Institute on Drug Abuse but as a scientist, which is a 
discipline whose aim is to provide with knowledge that is 
objective and not subjected to the perception of what is right 
or wrong.
    What we have learned is that cocaine use in this country is 
down from the epidemic of the 1980s; however, it is still 
unacceptably high. Six million individuals 12 years or older 
have used cocaine in the last year, and 1.6 million individuals 
have used cocaine freebase (crack).
    Why is cocaine abused? Cocaine is abused because it 
increases the concentration of the chemical dopamine in 
pleasure centers in the brain, and when dopamine goes up, that 
produces a high sense of euphoria. Cocaine does this by 
blocking the molecules that normally clean dopamine from our 
brains. So when these molecules are blocked, dopamine 
accumulates, and that is associated with a very intense high. 
And that is the way that cocaine produces its highly 
pleasurable effects, and that is also why it produces 
    The effects of cocaine, regardless of whether it is smoked 
freebase (crack) or whether it is taken by the hydrochloride 
form, which you can snort or inject, are going to deliver the 
same identical molecule in the brain. And for the equivalent 
concentration, the level of blockade of those molecules that 
dopamine is identical.
    The difference relies in terms of why some situations lead 
to more intense effects than others the route of 
administration. The faster you block those molecules that 
dopamine, the dopamine transporters, the more intense the high. 
And the variable that determines how fast cocaine gets into the 
brain and blocks dopamine transporters is not cocaine freebase 
or cocaine hydrochloride, but the route of administration. 
There are certain routes of administration that will deliver 
that cocaine very, very rapidly into the brain. What are those 
routes of? Injection, intravenous injection, smoking. How do 
you, why do you--when you inject intravenously, you have to use 
cocaine hydrochloride. You cannot inject freebase because it is 
not going to be soluble. If you want to smoke it, you cannot 
smoke hydrochloride because it is going to and you will have no 
cocaine left, and that is why you have cocaine freebase.
    So the two routes of administration that produce the most 
intense effects are injection and smoking. And, also, those are 
the routes of administration that are associated with the 
highest degree of addictiveness. Indeed, early studies estimate 
approximately 5 to 6 percent of individuals will become 
addicted to cocaine within 2 years. Most of them go there by 
injection or by smoking. There are more smokers than injectors, 
and, those in treatment, we end up seeing more people that 
smoke cocaine than those that inject. But most of those 
individuals, which is important to recognize, started by 
snorting cocaine hydrochloride. So it is a trajectory of events 
that leads an individual to go from snorting into injection or 
into smoking.
    There are differences also vis-a-vis the consequences of 
these routes of administration vis-a-vis their medical 
complications. Cocaine can have very serious adverse effects 
because it vasoconstricts blood vessels, and so blood does not 
get into organs, and there are certain organs that do not 
tolerate as well--heart and brain. That is why you can end up 
with a myocardial infarct, even if you are in your 20s, or with 
a stroke from the use of cocaine.
    Cocaine also changes the electrical properties of cells, 
and that can lead to an arrhythmia or to seizures that actually 
can prove to be lethal. Both of those medical complications are 
much more frequent when you inject or when you smoke than when 
you snort.
    There is a third complication, which is that the use of 
cocaine is associated with a higher risk of infectious 
diseases, such as HIV/AIDS. This is more common when you inject 
because you can actually get contaminated material. But you can 
also by smoking, snorting, or injecting increase the likelihood 
of HIV because cocaine use, intoxication, facilitates risky 
sexual behaviors.
    The good news, though, is that cocaine can be prevented and 
treated, and science has shown that treatment, whether it is 
voluntary or mandated by the courts, is effective. Indeed, 
science, for example, monitoring the effects of treatment in 
the criminal justice system has shown that it is highly 
effective, not just in decreasing the rate of drug use but also 
in decreasing the rate of incarceration.
    So, in summary, I say that when people take cocaine 
freebase or they inject cocaine or they snort cocaine, the 
identical molecule will end up in the brain. The difference is 
going to be determined the route of administration.
    Also, I wanted to just make a last statement, that as we 
try to offer our knowledge and expertise together to solve this 
problem of cocaine in this country, we should not forget the 
importance of prevention and treatment if we are to succeed.
    Thank you very much, and I will be happy to answer any 
    [The prepared statement of Dr. Volkow appears as a 
submission for the record.]
    Chairman Biden. Thank you very much, Doctor.
    Mr. Felman?


    Mr. Felman. Chairman Biden, Ranking Member Sessions, good 
afternoon. My name is James Felman, and since 1988 I have been 
engaged in the private practice of Federal criminal defense law 
with a small firm in Tampa, Florida, and I am here today, and 
honored to be so, on behalf of the American Bar Association. We 
appreciate the opportunity to appear before the Subcommittee 
    The crack/powder disparity is simply wrong, and the time to 
fix it is now. For more than a decade, the ABA has been part of 
a growing consensus that the disparity in sentences for crack 
and powder cocaine offenses is plainly unjust. This is a 
bipartisan issue. Indeed, the United States Sentencing 
Commission's call for change has been consistent, even though 
it has been constituted with different members appointed by 
different Presidents and confirmed by Senates controlled by 
different parties.
    We applaud this Subcommittee and its leadership for 
conducting this hearing as an important step in ending once and 
for all this enduring and glaring inequity.
    Beginning in 1995, the ABA endorsed the proposal submitted 
to the Congress by the Sentencing Commission that would have 
equalized crack and powder penalties and targeted specific 
aggravating factors. The ABA has never wavered from the 
position it took in 1995, and neither has the Sentencing 
    In 1997, and again in 2002, the Sentencing Commission 
recommended reducing the 100-to-1 ratio and repealing the 
mandatory minimum for simple possession of crack. 
Unfortunately, the Sentencing Commission's recommendations have 
not yet been addressed.
    The Sentencing Commission recently reduced crack penalties 
by two offense levels. This was an important measure and went 
as far as the Commission felt that it could go given its 
inability to alter congressionally established mandatory 
minimums. It is critical to understand, however, that this 
minus-two amendment is only the beginning of what must be done 
to address the crack/powder disparity.
    The 100-to-1 ratio enacted by the Congress in 1986 was 
premised on many assumptions, but subsequent research and 
extensive analysis by the Sentencing Commission and others has 
revealed were not supported by sound evidence and, in 
retrospect, were exaggerated or simply false.
    But although the myths which led to the 100-to-1 ratio have 
proven false, the disparate impact of this sentencing policy, 
particularly on the African-American community, is no myth. It 
is both real and it is growing.
    As the Sentencing Commission has noted, revising the crack 
cocaine threshold would do more to reduce the sentencing gap 
between African-Americans and Caucasians than any other single 
policy change and would dramatically improve the fairness of 
the Federal sentencing system. Enactment of S. 1711 would take 
that much needed step.
    It is important that I emphasize that the ABA not only 
opposes the crack/powder differential, but also strongly 
opposes the mandatory minimum sentences that are imposed for 
all cocaine offenses.
    Justice Kennedy, addressing the ABA in 2003, stated, ``I 
can neither accept the necessity nor the wisdom of Federal 
mandatory minimum sentences...[i]n too many cases, mandatory 
minimum sentences are unwise or unjust.''
    The ABA agrees wholeheartedly with Justice Kennedy and, 
thus, strongly supports the repeal of the existing mandatory 
minimums, particularly the draconian 5-year minimum mandatory 
for mere possession of crack--the only drug, as mentioned, that 
triggers the mandatory minimum for a first offense of simple 
    The average length of Federal sentences has tripled since 
the adoption of mandatory minimums. The United States now 
imprisons its citizens more of its citizens than any other 
nation on the planet, at a rate roughly 5 to 8 times higher 
than the countries of Western Europe, and 12 times higher than 
Japan. Roughly one-quarter of all persons imprisoned in the 
entire world are imprisoned here in the United States. And we 
know that incarceration does not always rehabilitate and 
sometimes has the opposite effect. For that reason, we also 
strongly support the appropriation of funds for developing 
effective alternatives to incarceration, such as drug courts, 
supervised treatment programs, and diversionary programs. Drug 
offenders are peculiarly situated to benefit from such 
programs, as their crimes are often ones of addiction.
    We are encouraged to see the appropriation of such funds 
for State programs in S. 1711 and hope that this appropriation 
can be expanded to reach Federal programs as well.
    In conclusion, the ABA firmly supports passage of S. 1711 
as proposed by Senator Biden and cosponsored by Senator 
Feingold on the Subcommittee, among others. We also commend the 
leadership of Senators Hatch, Kennedy, Feinstein, Specter, and 
Sessions for their introduction of alternative bills to address 
the crack/powder disparity. We hope that decisive and rapid 
action will be possible.
    On behalf of the American Bar Association, thank you for 
considering our views on an issue of such consequence for 
achieving justice in Federal sentencing.
    [The prepared statement of Mr. Felman appears as a 
submission for the record.]
    Chairman Biden. Thank you very much. We will do 10-minute 
rounds, since there is only three of us. If Senator Kennedy 
comes back and has to leave, I will yield him my time.
    I have a lot of questions, as you might guess. Doctor, let 
me begin with you. It is the route to the brain, not the nature 
of whether it is freebase or powder cocaine, that impacts on 
how rapidly the dopamine is interfered with. Is that correct? 
It is the route, whether--so snorting or injecting, it has the 
effect on the brain more rapidly than snorting it. Is that 
    Dr. Volkow. That is correct. And the faster it gets, the 
more intense its effects. The molecule is identical.
    Chairman Biden. All right. Now, does that beg the question 
or answer the question as to whether or not if one were to--is 
there a higher rate of addiction--and the clinical definition 
of ``addiction,'' X number of times a week, et cetera. Is there 
a higher rate of addiction for those who snort cocaine versus 
freebase or inject cocaine? Or is it one way or another? Is it 
the same effect?
    Dr. Volkow. There is a higher rate of addiction when you 
inject or when you smoke than when you snort.
    Chairman Biden. That was the premise upon which we started 
this whole thing off. And, again, I have to take blame for what 
ended up being what was in law at the time back in 1986, as the 
author of this legislation. That was the testimony.
    Now, let me ask any of the other witness, is the fact that 
if one were--and the other study I remember seeing years ago, 
back when I used to chair this Committee in the 1990s, was that 
there is a correlation between HIV--a higher correlation 
between HIV and crack use than HIV and powder use because of 
the nature of how rapidly the high occurs and how quickly it 
diminishes so that people would repeat it, they would binge on 
crack cocaine. I remember going into Philadelphia bringing a 
group of policemen down in the south side of Philly, in South 
Philly, and there was a particular place where you could see 
people walking in a side door, a woman standing up, and then 
her head would be lowered, and she was performing a sexual act, 
and then 10 minutes later another--you know, she would get 
enough to get a hit for her. She would get literally paid in 
crack cocaine. That was how she was being paid by the drug 
dealer. And there was a lot of discussion about how the 
promiscuous sexual behavior was associated with the frequency 
and the need for this hit, as the addiction occurred, that it 
did not occur as rapidly with people using powder cocaine.
    Is there any truth to any of that?
    Dr. Volkow. Well, again, powder cocaine can be administered 
by a route that is less addictive--snorting--or by a route that 
is as addictive as--
    Chairman Biden. I know, but isn't the vast majority of the 
consumption of powder cocaine through the nostril and not 
through the veins? It is a relatively small percentage.
    Dr. Volkow. Correct. The people, the individual taking the 
cocaine, that is correct.
    Chairman Biden. Right.
    Dr. Volkow. And with respect to your question about the 
risk for HIV, the highest risk actually for probably almost any 
drug is injection of cocaine more than smoking of cocaine, more 
than injection of heroin, because exactly what you were saying. 
You need to administer the drug very frequently, every 40, 30 
minutes. And so you are injecting constantly, and that leads 
many people that become addicted what is called graduation to 
prefer smoking over injection because of the high risk of HIV.
    Chairman Biden. Right. And is the high risk to HIV in that 
circumstance because of the needle or is it because of the 
promiscuous behavior that it promotes?
    Dr. Volkow. Two factors: the needle, the contamination 
through the needle is one; and the second one, intoxication 
with cocaine leads to very risky sexual behaviors, whether it 
is injected, smoked, or even snorted.
    Chairman Biden. OK. The next question, and the last one I 
have for you, Doctor, is--I have been a very strong supporter 
of drug rehabilitation programs and investing more money into 
drug rehab. You made reference that programs actually work. But 
let me ask you, is there any difference between--of those 
people who are subjected to--either in the prison or 
voluntarily move into drug rehabilitation programs associated 
with cocaine by whatever means it is administered, is there a 
breakdown among them based upon whether they get into rehab as 
a consequence of having been addicted to cocaine through 
freebasing or cocaine through snorting? I mean, or is there no 
distinction? The people who end up in treatment, is it harder 
or easier to treat one than the other?
    Dr. Volkow. To my knowledge, there is no evidence of 
easiness of treating one individual because they were using 
hydrochloride versus freebase. There are many other factors 
that will determine the prognosis, not whether they are 
freebasing or using the hydrochloride.
    Chairman Biden. Now, the allegation is made and continues 
to be made that there is a greater amount of violence 
associated with freebasing of cocaine. I assume that relates to 
anything from the way in which it is sold to the way in which 
it is used and the impact on the brain and what it causes in 
reactions of people. Another thing we hear a lot about--and 
there is some evidence--is that speed or methamphetamine, there 
is an excessive amount of violence associated with 
methamphetamine, consumption of methamphetamine. Is there a 
distinction between--I am going to talk about the violence, the 
violence side of the behavior.
    I used to say to people, when I was doing this on a regular 
basis in those years--I held thousands of hours of hearings--
that if I had to live in an apartment house where everybody was 
freebasing or in an apartment house where everybody was 
injecting heroin, I want to live where they inject heroin 
because I do not want to--the violence associated with 
injection of heroin and being on a high from heroin is 
significantly different than that associated with cocaine-
induced paranoia or with regard to speed.
    Is it true that there is a greater degree of violence 
associated with cocaine? And if so, is there a distinction 
between violence that is induced as a consequence of powder 
versus crack?
    Dr. Volkow. Well, first you asked me is there a distinction 
between cocaine and methamphetamine, and I would say that 
methamphetamine is even a more potent drug than cocaine in 
terms of its ability to increase dopamine and also its duration 
of effects. And as a result of that, circumstances being equal, 
you can predict the one who could have potentially more adverse 
effects than the other.
    However, we need to consider that the consequences that we 
see socially are not just the product itself, the chemical form 
of the drug, but the nature of the environment that gives 
accessibility to that drug. So when you speak to me and ask is 
there more evidence, for example, of violence in environments 
where you have high levels of crack versus a rural environment 
where a person may be by themselves taking methamphetamine, I 
would say, well, in that case, what is tipping the balance is 
your surrounding and not the drug itself.
    But coming back to the chemical actions of the drug, if you 
inject, cocaine actually is going to have more aggressive--will 
facilitate aggressive behavior more than heroin. So, Senator, 
you chose well. You are much better off with heroin than 
cocaine vis-a-vis with aggression.
    Chairman Biden. Now, let me be clear: I said living in an 
apartment with others who use it, an apartment complex.
    Dr. Volkow. Yes, and in clinical models where you can take 
rats, for example, and put them together and give them cocaine 
or give them heroin, the level of aggression and attack to each 
other is much greater with cocaine than heroin. There is no 
reason that--we do not have an animal model for freebasing 
cocaine, so we inject them. And the higher the doses, if you 
inject them, the more active your animals are going to be.
    So there you have an element of doses and the environment 
in which you are giving the drugs to the animal. But there is 
no--I mean, that is why I am sort of saying when you inject or 
when you smoke, the same drug is going to end up in your body. 
There is no difference at all. The circumstances may be very 
different, and I think that is where the issues become more 
complicated and it is not just an answer about the potency of 
hydrochloride versus freebase. Because if you are asking me 
directly, they are identical molecule. The circumstances may be 
very different, and then that is what determines the outcomes.
    Chairman Biden. Thank you. I have a lot of questions, but I 
am going to yield--and I have questions for the rest of the 
panel, but I am going to yield to my colleague. My time is up.
    Senator Sessions. Well, this is an important subject, 
Chairman Biden, and thank you for opening this discussion.
    Judge Walton, you know, as the lawyer in me, I tend to not 
utilize the word ``fairness'' too much, but I think at a 
fundamental level, there is a sense that I have, as a former 
Federal prosecutor who sent a lot of people to jail for a long 
time under mandatory sentencing, that I think we do have a 
fairness question for a whole host of reasons. And I think we 
have a public policy question, and your experience on both 
sides of the bench and having been in the drug czar's office I 
think entitles you to speak to that, and I thank you for 
sharing that thought.
    Mr. Commissioner, thank you for the Sentencing Commission's 
work. You have worked on this for quite a number of years. You 
have sent messages to the Congress. You have made your 
recommendations to Congress. And we just have not listened. I 
mean, I have offered the legislation for 6 years, and I remain 
somewhat baffled we have not fixed it before now. I thought 
earlier last year--we had a press conference with former 
Attorneys General that said this is the time to work on this, 
it was a step in the right direction that may lead us to action 
instead of talk.
    And, Ms. Shappert, I am pleased that you are someone who 
has actually prosecuted these cases, and you have seen the kind 
of defendants that get the biggest sentences. Would you 
describe that for us a little bit, what it is like, that you 
have a neighborhood in your district that has been taken over 
by a crack gang, and what an undercover effective Federal 
prosecution can do, and how the strong sentences are effective 
tools for the prosecutor to actually decimate a gang instead of 
catching just one or two?
    Ms. Shappert. I would be happy to. I worked a neighborhood 
a couple years ago called Grier Heights. It is a community in 
Charlotte that was overrun with drug dealers, and what made 
this so disturbing is you had a lot of single parents in this 
neighborhood, you had a lot of elderly people, and they were 
absolutely terrorized by open air drug markets and crack 
cocaine dealers.
    We went in there with the Charlotte-Mecklenburg Police 
Department and ATF with a mind toward cleaning up this 
community, and what we did is we were able to identify certain 
traffickers, prosecute them, and use what you are familiar with 
as rolling indictments. We would do one indictment, get one 
group of drug dealers, take out the next group, and keep 
    In my district, we have historically used a root-to-branch 
approach, which is to say we do not want to just take the head 
off the monster, we want to take out the entire operation. So 
we not only prosecuted individuals who were open-air dealers. 
We went after their sources in New York. We went after their 
sources in West Palm Beach. We went after the violent 
offenders, the street distributors, the cookers, the whole 
operation. We indicted a total of over 70 individuals, and the 
average sentence was over 200 months.
    When I started prosecuting in this neighborhood, I would go 
in there to do interviews, and when I would go into this 
neighborhood, people would come out of their apartments to 
shake my hand. They were so grateful to have their neighborhood 
back. When we went to trial, a number of the neighborhood 
members sat and watched the trials with us because they were so 
acutely interested. And when we finished our prosecutions, the 
city of Charlotte put a police satellite station in that 
community so that we could reinforce our efforts to keep that 
neighborhood clean.
    It is important to emphasize that our entire motive was to 
take back this neighborhood for the people who actually live 
there. And when we talk about crack cocaine sentences, we can 
never lose sight of the community that we are trying to protect 
and defend.
    The trial I just finished last week up in Statesville, 
North Carolina, involved this community of Lenore--
    Senator Sessions. And you tried this yourself?
    Ms. Shappert. I tried three cases, Senator.
    Senator Sessions. A United States Attorney actually got 
into the courtroom?
    Ms. Shappert. I tried three cases in 4\1/2\ weeks, picked 
three juries, and went back to back to back on three historical 
    Senator Sessions. I am impressed.
    Ms. Shappert. I am still a trial lawyer, and I practice law 
where the rubber meets the road.
    So in that neighborhood, we found that there were streets 
that were so clogged with street traffic of drug dealers that 
people could not get through. We went in there again to clean 
up that neighborhood, to turn it over back to the community. 
Our motive is to ensure the safety of these communities.
    Senator Sessions. Right.
    Ms. Shappert. And that is what we did.
    Senator Sessions. I just want to say that those who may too 
lightly think that we can just slash sentences across the board 
and that tough sentences do not do any good, murders fell 
substantially in the neighborhood where we had a major gang 
prosecution. Many of those that were convicted of crack 
offenses had previous murder charges against them. Some had 
gotten away with it, and some had been--so these were violent 
criminals that were removed from the community for long periods 
of time. I do not think that this is a--so I just want to make 
this point. As we go wrestle with what the appropriate sentence 
is, we cannot lose sight of the fact that neighborhoods can be 
destroyed, that children cannot go out to play, that the good 
and decent citizens there care deeply and are glad to see 
people be put away. And many come up to me and thank me for 
that from those neighborhoods.
    With regard to crack, in your experience, Ms. Shappert, are 
you aware of much cocaine powder, hydrochloride, being injected 
by needle? Or is it normally through the nasal passages?
    Ms. Shappert. Well, I will tell you that when I became an 
assistant public defender in 1983, there was a lot of cocaine 
injection. And I can remember as an assistant public defender 
asking clients who said they were stealing just because they 
liked to steal to roll up their sleeves so I could inspect the 
needle marks on their arms. But when crack cocaine hit 
Charlotte in 1986-88, the whole circumstance changed. We almost 
never see cocaine injected anymore. We see it smoked.
    Senator Sessions. Now, we just had one of the most tragic 
events in our community of Mobile in which an individual--I 
suppose most people read about it--threw his four beautiful 
children off the bridge to their death. And the Sunday Mobile 
paper--I believe it was Sunday's paper--did some background 
work on him, and he was a crack addict. And the family agreed 
that it was his addiction to crack that put him over to that 
most incredibly horrible crime.
    Dr. Volkow, do you see that there is a danger from this 
kind of crack addiction for violence that we cannot deny?
    Dr. Volkow. Absolutely, and as mentioned before, high doses 
of cocaine can produce paranoid thinking and can result in 
psychosis. And what you are describing right now is a very 
unfortunate case of that example where people take high doses 
of the drug, with repeated administration they become 
increasingly more sensitive to this paranoid effect, and it can 
result in full-blown psychosis with violence.
    Senator Sessions. My best judgment is that crack cocaine, 
the fact that you can easily smoke it and it gives that intense 
high, you do not have to use a needle to inject, creates a 
greater risk than powder. But I cannot deny that both create a 
    Judge, would you just briefly tell us how many years the 
Commission has expressed concern about that?
    Judge Hinojosa. It started in 1995, and on the issue of 
violence, Senator, when we wrote the 2007 report, we updated it 
by going to the 2005 sample of about 25 percent of the powder 
and crack cases, and we found that by using the definition of 
violence as we used it, meaning injury, death, and threats of 
injury or death involved in the occurrence or the commission of 
the offense, that with regards to powder it was in 6.2 percent 
of the cases and with regards to crack it was in 10.4 percent 
of the cases. So it is a relatively small number of both, 
although obviously slightly more in crack.
    Senator Sessions. Could you share this--I understand that 
the violence level, in the mid- to late 1980s, when I was 
prosecuting more than one of these gangs, more than one, 
apparently the numbers show that violence connected with crack 
cocaine is less than it was sometime years ago. Do you have any 
idea why that trend may be so?
    Judge Hinojosa. I do not have a specific answer, but we see 
it, and I would suggest--I do not disagree with you that it may 
have something to do with regards to prosecutions in certain 
areas. This is based strictly on Federal prosecutions, on the 
people who have actually been sentenced. That is what the 
Commission data shows. But you are correct; you know, 
prosecution probably makes a difference.
    Senator Sessions. I would say there are a couple of 
reasons. One is that you apprehend the violent gang guys, and 
they go to jail for 20 years, and they are not out there to do 
it again. That helps keep violence down. The gun prosecutions, 
the 924(c), carrying a firearm in the commission of a drug 
offense, carries a mandatory 5 without parole. Do you think, 
Madam U.S. Attorney, that that has caused fewer drug dealers to 
carry guns as they go about their business than used to be so?
    Ms. Shappert. We know from the stories of people we debrief 
after they have been apprehended that they have learned to keep 
their ``piece,'' as they call their gun, separate from their 
drugs for that very reason, because it has discouraged carrying 
guns to drug-trafficking offenses.
    I also think that the increased prosecution of drug 
offenses by the Department of Justice has targeted the same 
people who were involved in drug-related violence and has been 
highly effective in reducing the use of guns in drug crimes.
    Senator Sessions. Well, I would just conclude this point 
and say that it is time for us to think about this. I believe I 
made my suggestion, and my colleagues have, as to what we think 
a 20-to-1 ratio--as the Sentencing Commission suggested be the 
minimum what they would like to see, that is where I basically 
am. We do not need to send any signal that we have gone soft on 
drugs, that we are going soft on drug gangs and criminals. But 
at the same time, our policy needs to be rational. We do not 
need to have the taxpayers pay to keep somebody in jail when it 
is not worth their money to keep them there. So it is time for 
Congress, I think, to give attention to it and let's reach a 
conclusion and fix it.
    Thank you, Mr. Chairman.
    Chairman Biden. Thank you very much.
    Doctor, I have one last question for you. I remember years 
ago, meaning 10 years ago, maybe 15, that crack cocaine was 
viewed as a great equalizer. There was an interesting 
phenomenon. In the 1980s--and do not hold me to the exact 
number. I do not have this in my staff material. This is from 
memory. In the 1970s and 1980s, there was somewhere between 2 
and 3 times as many men consuming controlled substances as 
women. And then the argument was made, whether it is true or 
not, that when crack was introduced in the late 1980s, it 
became a great equalizer; that women who would not snort 
cocaine for the first time for fear of distorting their 
nostrils or would not put a needle in their arm, felt a lot 
more comfortable smoking; and that that generated a closing of 
the disparity from 20 or 3-to-1 men versus women to much closer 
to 1-to-1. Is there any truth to that?
    Dr. Volkow. To my knowledge, there is no evidence to that 
particular statement, indeed, and that is why I make the point, 
that most cases of addiction with freebase start with cocaine 
snorting. And that is the other issue that we need to keep in 
mind because the sense that we become uncomfortable by having 
only cocaine hydrochloride and that will take the problem of 
freebase is actually not justified. Why? Because once a person 
becomes addicted, they will seek a different route of 
administration. If there is no freebase, they will inject. And 
history has already given us that lesson.
    The other thing today, in my curiosity, I entered into 
Wikipedia to see what you all could get very easily out of the 
Web on crack cocaine, and lo and behold, you have there the 
recipe for producing cocaine freebase from cocaine 
hydrochloride. So let's not kid ourselves. If someone wants to 
take cocaine freebase, they can cook it themselves just 
following the guidelines.
    So there is no evidence in that respect, therefore, coming 
back to your question, that it was the equalizer in the use of 
drugs for cocaine or for other drugs. That is not the case. 
Unfortunately, we have been seeing equalization on the rates of 
drug use, both for legal and illegal, in women and for all 
types of drugs. And in some, like prescription medication, 
females are starting to outnumber males. So it was not due to 
    Chairman Biden. Thank you.
    May I ask you, Ms. Shappert, what is the Department's 
position on the minimum mandatory portion of--forget 
equalizing, but the minimum mandatory requirement that exists 
for use of crack cocaine?
    Ms. Shappert. I cannot give the Department's position on 
minimum-mandatory. I can tell you the Department is interested 
in a dialog and a discussion with this Committee and the 
Congress about changing the ratio of cocaine and cocaine powder 
and addressing the sentencing disparity in light of the 
concerns that have been raised by many different members of the 
community. And we link that to the equally significant issue to 
us of public safety, particularly with the application of 
retroactivity and the 20,000 individuals who are going to be 
eligible for resentencing.
    Chairman Biden. Now, both judges--correct me if am wrong--
said, I thought, a similar thing. But I may be mistaken. When 
you indicated that you are willing to look, the Department is 
willing to look at retroactivity as it relates to the 
individual case, the violence, the degree to which violence is 
associated with the sentence that was received, how do you--
what is the matrix you would use? I think Judge Walton said if 
someone had been violent 15 years earlier, had another violent 
offense--maybe I am mistaken. It may have been you, Judge. I do 
not know who said it. But that someone may have been convicted 
of consuming crack cocaine, but the violent offense that he or 
she has on her record was unrelated to that particular offense.
    Are you saying that the violence has to be related to the 
offense or the violence related to the individual who is 
incarcerated as opposed to the specific offense relating to 
    Ms. Shappert. I am referring to what the Attorney General 
said last week, which is that in terms of reviewing and 
addressing this problem of the 20,000 individuals who are 
eligible for resentencing, the concern of the Department of 
Justice is with violent offenders and recidivists. We are far 
less concerned with first offenders and small possession cases. 
And in reviewing that question and addressing it with the 
Congress, the dialog needs to be focused exclusively--rather, 
not exclusively, but significantly on the public safety 
question. So all of those matters need to be worked out in the 
context of protecting the community, recognizing that these 
were legitimate sentences, that we all understood that they 
were legitimate sentences, and retroactivity will have profound 
consequences for a lot of the communities that are the most 
    Chairman Biden. Judge, would you respond to that, Judge 
    Judge Walton. Well, again, I think the problem becomes what 
do you say in your legislation to ensure that you are truly 
keeping locked up those who are going to actually pose a danger 
to the community if they are released. And I think that is very 
difficult to effectuate through legislation. As the situation 
now exists, if Congress does not take action, it will be 
imperative on the judges, pursuant to the direction of the 
Sentencing Commission, to make an assessment as to whether 
someone poses a potential danger to society. And you obviously 
will take into account the information provided at the time 
they were sentenced by way of a presentence report, which will 
be made available to the judge if he or she does not currently 
have one. We will be receiving from the Federal Bureau of 
Prisons information about the individual's institutional 
adjustment, and if they have infractions of a violent nature, 
then judges would factor that in. I know if I had that before 
me, I would not be inclined to grant the reduction.
    So I think looking at it from an individualized perspective 
ends up making the process fairer as compared to categorically 
saying that a certain standard set forth by legislation is 
going to control what happens to all offenders.
    Chairman Biden. Judge, does the Commission have a sense 
of--or the Conference as to what kind of workload this would 
impose to have to review 20,000? You do not handle 20,000 
criminal cases a year.
    Judge Walton. Well, that is spread throughout the entire 
country, and we are only talking about, as was indicated, 
around 1,600 the first year. We obviously thought about that, 
and we obviously are concerned because we do have tremendous 
caseloads. On the other hand, our conclusion was that we were 
willing to roll up our sleeves and tackle this problem.
    Chairman Biden. I just want to make sure--I am not taking 
issue with you. Especially in the Rehnquist Court and now the 
Roberts Court, there is a great, legitimate concern about the 
caseload of the Federal district court judges. That is what we 
are talking about here, correct?
    Judge Walton. That is correct.
    Chairman Biden. And so the question is that, if memory 
serves me--and, again, I have been paying more attention to the 
other Committee I chair, quite frankly, than the detail of this 
one for a while now. But if I am not mistaken, the total number 
of prosecutions a year in the Federal court are less than 
25,000. There are more prosecutions in the city of Philadelphia 
in 1 year than there are in the entire Federal criminal justice 
system--at least there were several years ago.
    And so my question becomes the practical. I am trying to 
figure out, along with my colleagues, a practical way to--I 
happen to think there should be no disparity, but a practical 
way to figure out how to deal with the disparity, which 
everyone seems to be coming around there has to be some change 
from 100-to-1, and, second, the impact on retroactivity. My 
legislation that you have endorsed, Mr. Felman, does not 
include retroactivity, for example. And so that is why I ask--I 
just want to make it clear for the record why I am asking. I 
would hate like heck for us to get to the position where we 
have reached a consensus and then find out that the bench says, 
Whoa, whoa, whoa, we cannot handle this, we cannot do a review 
of 1,600 cases next year in terms of the sentencing disparity 
determining whether or not the retroactivity applies.
    And so if we go this route, we are going to need to work 
with you to make sure that we are in a position, if that is the 
case, if that is the route that is chosen, that the Judicial 
Conference feels confident that they can do this without 
affecting the Speedy Trial Act, without affecting a whole range 
of other caseload work that you Federal judges have right now. 
That is the reason I raised the question.
    Judge Walton. Well, the Judicial Conference has not taken a 
position on whether, if there is a legislative fix, that should 
be made retroactive. The only position we have taken is in 
reference to the two-level decrease.
    Chairman Biden. It would be the same effect. I mean, in 
other words, if we do nothing at all, if we remain silent and 
cannot give you consensus, then what happens is you are faced 
with this retroactivity, and the question is could you handle 
it now. Based on the Sentencing Commission recommendation, 
could you handle the caseload? Yes, Ms. Shappert?
    Ms. Shappert. To be honest with you, I am not sure we all 
can. If you noticed, 50 percent of those cases are going to 
fall in three circuits--the Fourth, the Fifth, and the 
Eleventh. I look at my district. We are going to have at least 
536, and that number is misleading. The Commission tells us 536 
will be eligible, but the number is misleading for several 
    First of all, where individuals have had Rule 35's and had 
their sentences reduced, defendants who we thought would not be 
eligible for the retroactivity will be, so that increases the 
    The other factor we are finding in my district is that 
marijuana offenders, ecstasy offenders, fraud defendants, are 
also filing petitions thinking that they are eligible for this, 
too. So we are having to sort through hundreds of cases to--
    Chairman Biden. Do you have in the Federal system many 
marijuana offenders?
    Ms. Shappert. Yes, in fact, we do. Not as many as we do for 
crack cocaine. I recently got a life sentence for a marijuana 
offender, so, yes, we do prosecute marijuana--
    Chairman Biden. I assume that was like a shipload.
    Ms. Shappert. No. It was like several tractor-trailer loads 
    Chairman Biden. Good, OK. Well, I--
    Ms. Shappert. The point being is that we are dealing with a 
lot of cases that had nothing to do with crack cocaine, and the 
files have been archived. This 20,000 people represents 10 
percent of the Federal prison population. And it is fine to say 
that we will have sentencing hearings for each and every one of 
these individuals to consider two levels, but there are several 
factors. Files have been archived. Witnesses are gone. Agents 
have retired. We do not have the same resources as prosecutors. 
And if other circuits do what the Ninth Circuit has done and 
seek to give a full-blown sentencing hearing, we are not 
talking about simply a two-level reduction. We are talking 
about potentially much more significant reductions in 
sentences. Prosecutors have to review a file that is 5 or 7 or 
10 years old in addition to our regular caseloads.
    Judge Walton. I hear what the Justice Department is saying, 
and I was formerly a member of the Justice Department for 
years. I do not hear judges crying out and saying we are going 
to be overwhelmed, therefore, we should not try and fix this 
fundamentally unfair process. I do not hear probation 
department officers saying that. My probation officers said 
they feel that they can address the issue.
    So I just do not hear that coming from the judiciary that 
we do not have the resources; we are not willing to invest the 
time to address this problem.
    Judge Hinojosa. Senator, I was told that this would not be 
a hearing about retroactivity, but I do want to say--
    Chairman Biden. Well, it is really not. I just--but it does 
come up in the context of what we are hopefully going to 
negotiate with the Justice Department.
    Judge Hinojosa. I do want to say something on behalf of the 
Commission. I do not think anybody should be left with the 
impression that the Commission just jumped into something 
without having thought about this, and this bipartisan 
Commission took the time to conduct studies, to have public 
hearings, to receive public comment. In fact, we received over 
30,000 public comments, either in the form of letters from the 
ABA and other individuals and organizations. We had public 
hearings. The Department of Justice was present, as well as was 
the Judicial Conference. We have heard from the Judicial 
Conference. And we looked at the factors we normally look at 
when we make a decision under the statutes, which we are 
supposed to do every time we reduce penalties, and that is how 
we did it.
    It was important to us that the Judicial Conference 
recommended and indicated that they could handle it and that 
they would be--they were supportive of this, as well as the 
other individuals that we heard from. And the Commission, 
having done that, then felt this was the right thing to do. We 
have done it in the past with regards to other drug reductions. 
It has been handled by the courts. And that is how the 
Commission made its decision. This was well thought out and we 
did look at all the possibilities. We also then proceeded to 
indicate that this is not a full rehearing as far as the 
sentencing, that this was not a full resentencing. We did this 
under our guidelines. We have the statutory authority to do 
that. We stated that. We indicated that there should be public 
safety consideration on the part of the courts. This is not 
automatic. Obviously, a Federal district judge will have to 
make this decision. It can be denied. And, therefore, that will 
happen in these cases. Each one of these will be looked at with 
regards to people with violence in their past. As Judge Walton 
indicated, these are individuals who have received higher 
sentences because their criminal history categories are higher. 
In some cases, they became career offenders.
    And so all of this has been thought out. Their sentences 
reflect that, and the Commission thought about this, 
unanimously voted on this. And I do not want anybody to be left 
with the impression that the Commission is not concerned about 
public safety and that we have not done what is necessary with 
regards to trying to protect--
    Chairman Biden. Judge, understand I am trying to make your 
point. I am not suggesting that it was irresponsible. But I do 
think for the public at large and the press that is here 
listening to this hearing, which has created a great deal of 
interest for the reason it has been debated for so long, and 
there is such a disparity that they understand in open public 
testimony what each of you think. We have a member of the 
Sentencing Commission and two Federal judges. We have a 
defender, we have a scientist, and we have a prosecutor. And I 
just want to make sure that everyone understands your position 
from each of your expertise.
    Ms. Shappert, you want to say something?
    Ms. Shappert. Yes. I deeply respect the work of the 
Sentencing Commission and, in fact, I testified on behalf of 
the Department in front of the Sentencing Commission. One thing 
that I do not think was considered by all persons--and I am 
sure the Honorable Hinojosa did consider it. But one thing that 
is important to remember is the Federal public defenders did 
not acknowledge or did not underscore that many of them would 
be seeking full-blown resentencing hearings. And I am informed 
that many felt that Federal public defenders are promoting 
full-blown resentencing hearings looking to the law of the 
Ninth Circuit. The Ninth Circuit has already had a decision 
coming out where they are making Booker retroactive for these 
resentencing hearings.
    Chairman Biden. Well, we could legislate that, could we 
    Ms. Shappert. Yes, you could.
    Chairman Biden. We could make that painfully clear.
    Ms. Shappert. Yes, could that?
    Chairman Biden. Would that go a long way in resolving the 
Department's concern? In other words, if it were not a full-
blown hearing, if it were along the lines of the Sentencing 
Commission recommendations, how much difficulty--if that were 
codified, how much difficulty would the Department have with 
that approach?
    Ms. Shappert. Well, it would certainly dramatically ease 
our workload and make things, we believe, more consistent 
across the country. It still would require that all of these 
defendants be eligible for resentencing hearings. We are still 
concerned about the violence associated with the backgrounds of 
some of these individuals. We still believe that there needs to 
be a retroactivity fix and that the Senate is the place where 
that needs to happen.
    Chairman Biden. Mr. Felman, from your perspective as a 
defense lawyer, how would you view this?
    Mr. Felman. I think it is important that we not make these 
decisions based on myths. I have been hearing a lot about these 
are some of the most violent people. These are, by definition, 
not crimes of violence. These are non-violent offenses. What we 
have just heard is that 90 percent of crack offenders had no 
hint of violence about them at all. There was no threat of 
violence, there was no actual violence--90 percent. So we are 
talking about 10 percent of the 19,000. And the 19,000 gets 
thrown around a lot. That is the number of resentencings that 
need to be done over the next decades, the next 20 or 30 years. 
There are 70,000 sentences a year in the Federal system, and we 
are talking about 1,600 that need to be done now.
    And let's assume that all 1,600 are released, and I have 
read the Attorney General's comment suggesting that we should 
all be in fear of those 1,600 people who are, by definition, 
convicted of a non-violent crime. And the statistic that is 
missing from that discussion is the number of people who are 
going to get out of prison this year, anyway. It is 650,000. 
And for the Attorney General of this Nation to put our people 
in fear over the release of 1,600 people knowing that otherwise 
650,000 were going to be released is truly disappointing. And 
even these people will not be released if a judge looks at them 
and says these people could be violent, that 10 percent. They 
may not be released. Even if we let all these people out, we 
will still have locked up more people this year than ever 
    And so I am in a district with the number two amount of 
crack cases; the second most district is the Middle District of 
Florida. And we are in the Eleventh Circuit, and it is my 
understanding that the Eleventh Circuit and the Fourth Circuit 
have both ruled that you are not entitled to a full 
resentencing. The only circuit that has ruled that you are is 
the Ninth Circuit. And so in my district, I do not hear anybody 
complaining. The probation officers and the prosecutors and the 
Federal defenders have been comparing lists. They have been 
working diligently. There is not a tsunami. They are prepared 
to professionally discharge their duty and to process these 
cases and to get it done.
    Thank you.
    Chairman Biden. Thank you for your input.
    Senator Sessions. Well, 650,000 released is not from 
Federal prisons, right?
    Mr. Felman. That is correct. That is nationwide, State and 
    Senator Sessions. Right. Well, these represent--the Federal 
prosecutions of crack dealers represent the worst, normally, 
and that is why they have gotten heavier sentences. And I do 
think--I do not know how many people will die as a result of a 
mass release of 25 percent of the Federal penitentiary, but 
some will, because a lot of these people will go back to this 
and get involved in violence and kill somebody, much less 
dealing drugs and maybe addicting more people in the future.
    So I just want--I heard your point of view, but I think we 
need to be realistic here. Let's ask the Department of Justice 
about the 5-year mandatory sentence for mere possession of 5 
grams of crack. Are you willing to talk about altering that 
    Ms. Shappert. The Department of Justice is willing to 
discuss the disparity, and that is across the board.
    Senator Sessions. Well, I think that is an excessive 
sentence myself, and I know Congressman Rangel and others were 
for these tough sentences, and I supported them and Senator 
Biden did, and now we have gotten--the world has changed some, 
and it is time for us to look back at it and see if we can get 
the thing in the right range there.
    I would just conclude, Mr. Chairman, by saying that we have 
had a good discussion. This is a good panel. There is no free 
lunch here. If you weaken too much the sentencing, we are going 
to have more crime and a more difficult time prosecuting, 
because it is the fear of the large sentence that almost 
guarantees large numbers of people who are apprehended will 
provide the evidence necessary to convict the higher-ups. Isn't 
that right, Ms. Shappert?
    Ms. Shappert. Absolutely, Senator.
    Senator Sessions. Judge, you have seen that yourself, and 
so many of the people do not get the full sentence because in 
some cases I have seen almost everybody would agree to plead 
guilty and confess and tell on the rest of the gang, and they 
all get a little less sentencing you would think they would 
have gotten otherwise.
    Judge Walton. If I could weigh in on the discussion that 
was taking place when you were asking your questions, 
understand I am not here personally and not on behalf of the 
Conference suggesting that we should not vigorously prosecute 
people who are involved drug-trafficking activity. Clearly, 
individuals who are higher-ups and managers of drug 
organizations should be punished if they are convicted and 
punished appropriately. Clearly, individuals who are involved 
in drugs and violence should be punished appropriately.
    But what happens, as you know as a former prosecutor at the 
ground level--I just finished a case recently--some of the top 
individuals who had all of the information that would help the 
Government make a case provided cooperation. As a result of 
that cooperation, they will get significantly reduced 
sentences. The individuals, because of our current structure 
that exists regarding crack cocaine, who end up getting the 
greater sentences are individuals who are the low-level 
offenders who do not have any information to provide so they 
cannot cooperate with the Government because they have nothing 
to provide by way of assistance. So because of our sentencing 
structure, they get significant sentences even though they are 
not warranted as compared to the individuals who are higher up 
on the totem pole. And that is one of the big concerns I have 
about the practical impact of what our sentencing structure 
    Senator Sessions. That can happen and does happen. I think 
most prosecutors try to not allow that to happen. But I share 
your concern.
    I think we are on the road to doing something right. I 
thank all of you for your participation. I am ready to get 
busy. Thank you.
    Chairman Biden. Well, what I would like to do--and I do not 
want to make additional work for you or keep you much longer, 
but I have a number of additional questions maybe I can submit 
to you in writing, and they do not require long answers. But I 
would like to go back to--it seems to me if we are going to--it 
is not sufficient that we merely reduce the disparity, and, 
again, our legislation equalizes it. But it seems to me part of 
this, when we figure into this this overall debate with regard 
to crack cocaine versus powder cocaine, is the mandatory 
minimum sentence for first-time offenders, as well as this 
notion of retroactivity, which we are going to have to face. I 
acknowledge this was not the purpose of the hearing, the 
retroactivity, but it was raised as part of what is 
essentially--and I appreciate it. I thank the Department for 
essentially publicly acknowledging they are prepared to 
negotiate an overall settlement of this, whatever everyone 
acknowledges is not merely a disparity but an unfair disparity.
    And so there are three pieces to it: one is whether it is 
1-to-1 or 100-to-1 or something in between; two is the minimum 
mandatory sentences for first offender drug users; and the 
third is how to deal with, if we accomplish any of that, 
retroactivity. And it is interesting, that chart has just been 
placed up, the violence involved in powder versus crack 
cocaine. The larger message of that chart, as I understand it, 
Doctor, is basically that, on average, 90 percent of the time 
involving cocaine there is no violence associated with it. That 
is the sort of larger, overarching piece about this, going to 
this issue of are we going to release 25 percent of the Federal 
prison population back onto the street who are violent 
criminals who we are going to be putting back on the street.
    And so I hope we will do this--not privately like secret, 
but not in the hearing context, I hope we can--and I am sure 
that Senators Sessions and Hatch are prepared with me to sit 
down with the Department to see if we can come to some greater 
sense of what a common ground might be. It may not be. My 
intention is to pursue no disparity. But, also, I am a realist. 
I have been here for a long time. And I would rather get 
something good done than nothing done at all. So that is the 
context in which I raise each of these.
    One of the questions that I had--and there may be no answer 
to it, but I found interesting, and, quite frankly, I did not 
know--was that the--let me find the statistic--that back in the 
mid-1990s, the sentences for crack cocaine were 25.3 percent 
longer than powder; now it is 50 percent longer.
    Is there an explanation for that, Judge? I mean, is there a 
reason for that?
    Judge Hinojosa. There are some possibilities as to what we 
consider may be the reasons for it. Part of it is there is a 
slightly higher number of people who get sentenced for crack 
who are subject to the mandatory minimums, and their criminal 
history category tends to be--the average is III as opposed to 
    Chairman Biden. I see.
    Judge Hinojosa. And so the safety valve provisions apply in 
13.5 percent in the crack cases, but in about 44.5 percent of 
the powder cases, people qualify for the safety valve 
provisions. And so that may be some reason that there is more 
relief for powder defendants because of their criminal history, 
which, again, shows how criminal history plays a part with 
regards to the sentences of crack defendants from the 
standpoint of getting them higher sentences, and, therefore, 
they would not go below the mandatory minimums.
    Chairman Biden. And, Doctor, I warn you and implore you, I 
plan on in the Subcommittee holding additional hearings on 
treatment programs and what treatment regimes we should be 
involved with. And I am going to ask you if you would be kind 
enough to come back and talk to us. One of the things that I--I 
was the author of the drug court legislation, and it seems to 
me that it is not fully appreciated, the value of those courts 
and the funding of them. So I just would--I give warning. I 
will ask you to come back and testify before us.
    The other thing I would like to suggest is that I may, 
after we have a discussion over the next several weeks, I hope, 
very well either--one, I would warn or even possibly reconvene 
the panel to debate and discuss what may or may not be 
something we can work out. In the meantime, let me turn to 
staff and ask if there is anything glaring that we should have 
asked that I did not. And I will invite my colleagues who are 
not able to be here, and, again, I would ask your bosses to 
submit just one or two questions if they want. I want to be 
able to get these folks back, so I do not want to send them off 
with too much homework here. But I do have three or four 
questions that I would like to ask that are more in the weeds 
than we have been discussing here and I do not think are going 
to particularly enlighten this discussion. But I think we need 
them for the record if you all are willing.
    Would any of you like to make a closing comment or an 
    Dr. Volkow. Well, I want to first thank you for taking 
leadership on this issue and for bringing up something that has 
become one of our major initiatives, the notion of treatment on 
those drug abusers that end up in the criminal justice system, 
because probably it is one of the things that we can do that 
can change both criminal behavior as well as substance abuse.
    Chairman Biden. As you know, those six hundred and some 
thousand people being released, a number of them are walking 
out with a bus ticket and an addiction as they walk through the 
gate. As they walk through the gate to freedom, they walk 
through addicted. Addicted because of the availability of drugs 
in the prison system, particularly in the State system. And we 
are also going to be holding hearings on a piece of legislation 
that Senator Specter and I have on the Second Chance Act. What 
do we do about those folks? Because a significant number go 
from that prison gate to underneath a bridge because there is 
no housing, there is no employment, there is no--so we have to 
be taking a look at this.
    Yes, Mr. Felman?
    Mr. Felman. I just wanted to make sure that this statistic 
about releasing 25 percent of the Federal prison population is 
properly understood. What we are talking about is 200,000 
inmates, roughly, and we are talking about releasing 20,000 of 
them. But we are not talking about releasing 20,000 of them 
now. We are talking about releasing 2,000 or less now. So we 
are talking about actually less than 1 percent of the prison 
population that would be released at any given time.
    Chairman Biden. I am glad you mentioned that. It is a valid 
    Mr. Felman. So I just want to make sure that that was clear 
and to reiterate the ABA's position that although, obviously, 
there are differing positions about what the proper ratio 
should be, we believe very firmly that there is no basis for a 
ratio other than 1-to-1 because these are ultimately the same 
drug. There are no other drugs that are punished based on their 
mode of ingestion. To the extent that there is greater violence 
associated with crack, the way the guidelines should address 
that is to punish the people who are actually violent by 
increasing those punishments. To build in a specific offense 
characteristic into the base offense level would result in 
double punishment.
    All crack, we know by definition, was once powder. And so 
it is a question of where along the chain of distribution you 
want to really lower the hammer. And if we are hammering only 
the people with the crack, what you are getting is the street 
level dealer at the end of the distribution chain. And so there 
is not any reason--just because crack is or is not more 
addictive or is perceived to have these other issues, it all 
comes from powder. And so we believe that fairness must not 
only be actual, it must be perceived to be real, and that the 
African-American community might continue to have a perception 
of unfairness if there is anything other than 1-to-1 ratio.
    Judge Walton. One other thing I want to emphasize, which is 
what Judge Hinojosa indicated, and that is that when the 
Sentencing Commission has taken similar action regarding other 
substances, they have made it retroactive. And what would the 
message be to minority communities who are most affected by 
crack if we change it as it relates to crack but we did not do 
it regarding other drugs. What is that saying, again, about the 
fairness of the process?
    Ms. Shappert. Senator, I would also point out that the 
Department of Justice is always opposed to retroactivity, 
whether it was for the LSD penalties or for marijuana.
    But the more important point I would like to make is that 
March 3rd the retroactivity goes into effect. We are on a very 
short time window right now because if something is not done 
before March 3rd, there will be ex post facto issues that will 
come into play.
    So I would urge your Committee to meet with the Department 
of Justice as quickly as possible so we can start moving.
    Chairman Biden. That is a valid point. I agree with that, 
and we will. I must say in closing that beyond--and the point 
Mr. Felman made and you made, Judge Walton, that perception 
matters in terms of fairness of the criminal justice system, 
and that is one of the reasons why I went to 1-to-1. You could 
make, I think, an argument that there could be some slight 
difference, but as a practical political matter--and I mean 
that in the broadest sense--of the fair administration of 
justice, I think it has reached the point where it is perceived 
to be completely out of whack and viewed as targeted.
    I have a son who is a Federal prosecutor. As a matter of 
fact, I have a son who is the Attorney General of the State of 
Delaware. And it is interesting to hear him talk about this 
from the State level and to hear his concerns about the way in 
which--he was in the Philadelphia office, a large Federal 
office, and about how minimum mandatories were leveraged to do 
a lot of things that did not sit well with him.
    So there is a lot going on here, but the perception--I 
guess the only point I am trying to make is perception does 
matter in this case, and I look forward to working with the 
Justice Department and my colleagues to see if we can get 
something done quickly. And, Doctor, I look forward to having 
you come back to speak about things that are near and dear to 
my heart, particularly as it relates to prevention and 
    Thank you all very, very much. We are adjourned.
    [Whereupon, at 4:21 p.m., the Committee was adjourned.]
    Questions and answers and submissions for the record