    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

     UNFAIRNESS IN FEDERAL COCAINE SENTENCING: IS IT TIME TO CRACK THE 100
                                TO 1 DISPARITY?

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

                        H.R. 1459, H.R. 1466, H.R. 265,
                             H.R. 2178 and H.R. 18

                                   __________

                                  MAY 21, 2009

                                   __________

                               Serial No. 111-27

                                   __________

             Printed for the use of the Committee on the Judiciary

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

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
    LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

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

    PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             TED POE, Texas
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               TOM ROONEY, Florida
    ANTHONY D. WEINER, New York
    DEBBIE WASSERMAN SCHULTZ, Florida
    MIKE QUIGLEY, Illinois

                          Bobby Vassar, Chief Counsel

                        Caroline Lynch, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  MAY 21, 2009

                                                                       Page

                                   THE BILLS

    H.R. 1459, the ``Fairness in Cocaine Sentencing Act of 2009''....   182
    H.R. 1466, the ``Major Drug Trafficking Prosecution Act of 2009''   186
    H.R. 265, the ``Drug Sentencing Reform and Cocaine Kingpin
      Trafficking Act of 2009''......................................   197
    H.R. 2178, the ``Crack-Cocaine Equitability Sentencing Act of
      2009''.........................................................   221
    H.R. 18, the ``Powder-Crack Cocaine Penalty Equalization Act of
      2009''.........................................................   224

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     4
    The Honorable Lamar Smith, a Representative in Congress from the
      State of Texas, and Ranking Member, Committee on the Judiciary.     5

                                   WITNESSES

    The Honorable Charles B. Rangel, a Representative in Congress
      from the State of New York
      Oral Testimony.................................................     7
    The Honorable Sheila Jackson Lee, a Representative in Congress
      from the State of Texas
      Oral Testimony.................................................     9
    The Honorable Roscoe G. Bartlett, a Representative in Congress
      from the State of Maryland
      Oral Testimony.................................................    11
      Prepared Statement.............................................    12
    The Honorable Maxine Waters, a Representative in Congress from
      the State of California
      Oral Testimony.................................................    13
    Mr. Lanny A. Breuer, Assistant Attorney General, Criminal
      Division, U.S. Department of Justice, Washington, DC
      Oral Testimony.................................................    27
      Prepared Statement.............................................    30
    The Honorable Ricardo H. Hinojosa, U.S. District Court Judge,
      Southern District of Texas, and Acting Chair U.S. Sentencing
      Commission, WASHINGTON, DC
      Oral Testimony.................................................    43
      Prepared Statement.............................................    46
    Mr. Scott Patterson, District Attorney, Easton, MD, on behalf of
      Joseph I. Cassily, President of the National District Attorneys
      Association, Alexandria, VA
      Oral Testimony.................................................    62
      Prepared Statement.............................................    63
    Mr. Willie Mays Aikens, Kansas City, MO
      Oral Testimony.................................................    65
      Prepared Statement.............................................    67
    Mr. Bob Bushman, Vice President, National Narcotics Officers
      Association Coalition, Washington, DC
      Oral Testimony.................................................    72
      Prepared Statement.............................................    74
    Ms. Veronica F. Coleman-Davis, President and CEO, National
      Institute of Law and Equity, Memphis, TN
      Oral Testimony.................................................    80
      Prepared Statement.............................................    82
    Mr. Marc Mauer, Executive Director of the Sentencing Project,
      Washington, DC
      Oral Testimony.................................................    88
      Prepared Statement.............................................    90

                                    APPENDIX

    Material Submitted for the Hearing Record........................   105

     UNFAIRNESS IN FEDERAL COCAINE SENTENCING: IS IT TIME TO CRACK THE 100
                                TO 1 DISPARITY?

                                  ----------

                             THURSDAY, MAY 21, 2009

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

        The Subcommittee met, pursuant to notice, at 10:04 a.m., in
    room 2237, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Conyers, Scott, Jackson Lee,
    Waters, Cohen, Quigley, Gohmert, Poe, and Lungren.
        Also present: Representative Smith.
        Mr. Scott. The Subcommittee will come to order. I am
    pleased to welcome you today to the hearing before the
    Subcommittee on Crime, Terrorism, and Homeland Security on the
    issue of ``Unfairness in Federal Cocaine Sentencing: Is It Time
    to Crack the 100 to 1 Disparity?''
        We will be discussing and considering legislation pending
    before the House regarding the issue, including H.R. 1495, the
    ``Fairness in Cocaine Sentencing Act of 2009;'' H.R. 1466, the
    ``Major Drug Trafficking Prosecution Act of 2009;'' H.R. 265,
    the ``Drug Sentencing Reform and Cocaine Kingpin Trafficking
    Act of 2009;'' H.R. 2178, the ``Crack-Cocaine Equitable
    Sentencing Act of 2009;'' and H.R. 18, the ``Powder-Crack
    Cocaine Penalty Equalization Act of 2009.''
        The full Committee of the Judiciary has scheduled a hearing
    at noon today, so I want to alert the Members and witnesses
    that we will have to conclude the hearing in time for Members
    to attend the noon hearing on the auto industry bankruptcies.
        Turning to today's hearing, it appears that many Members of
    Congress, as well as the general public, agree that the current
    disparity in crack and powder cocaine penalties makes no sense,
    is unfair and not justified, and it should be fixed. However,
    there is not yet a consensus on how to do it.
        After extensive study on the issue over the last 20 years,
    there appears to be no convincing scientific, medical or public
    policy rationale to justify the current or any other disparity
    in penalties for the two forms of cocaine.
        Scientific and medical research has found that crack and
    powder cocaine have essentially the same pharmacological and
    physiological effects on a person.
        The indicated method of how powder cocaine becomes crack
    cocaine is to cook the powder in the form--to cook the powder
    form with the water and baking soda until it hardens into a
    rocklike formation. This diluted and cheaper form of powder
    cocaine is then generally ingested by users through smoking a
    pipe.
        No other illegal drugs has a severe penalty differential
    based on the different formations of the drug, and certainly
    not for a lesser amount of the illegal substance, nor is the
    amount of the--nor is a method of the ingestion of cocaine or
    any other drug a justification for a different penalty, whether
    it is smoked, snorted, injected or otherwise consumed.
        Moreover, neither violence nor any other associated history
    of use between the two forms of the drug seems to justify
    penalties. The Sentencing Commission reports that 97 percent of
    crack offenders do not use weapons, compared to 99 percent of
    product transactions do not use weapons.
        Such a small difference in the use of weapons in crack and
    case, not whether crack or powder was used in the crime.
        The original basis for the penalty differential was
    certainly not based on science, evidence or history, but on
    media hysteria and political bidding based on who could be the
    toughest on the crack epidemic then believed to be sweeping
    America.
        While there are no real differences between crack and
    powder cocaine, the distinction between the penalties of the
    two drugs have very severe consequences.
        More than 80 percent of the people convicted in Federal
    court for crack offenses are African-Americans. They are
    serving extremely long sentences, while people who have
    committed more serious drug offenses or more violent crimes
    serve significantly shorter sentences.
        Many people in African-American communities have lost
    confidence in our criminal justice system because of unfair
    policies such as the Federal crack cocaine laws.
        So while some point to the fact that African-American
    citizens, like all citizens, demand that a legal drug peddlers
    be removed from their communities, those same African-Americans
    are strongly in favor of removing the disparate sentencing
    between crack and powder cocaine.
        The U.S. Sentencing Commission has released four reports in
    the last 15 years on this subject, each time urging Congress to
    amend the cocaine sentencing laws. Unfortunately, those pleas
    have fallen onto deaf ears in Congress.
        The commission, as well as the Federal Judicial Conference,
    has urged Congress to remove the unfair mandatory minimum
    sentences. Each time they remind us that those mandatory
    minimums often violate common sense.
        One example that frequently point to is the 5-year
    mandatory minimum sentence for mere possession of five grams of
    crack. Crack is the only illegal substance for which there is a
    mandatory minimum sentence for mere possession.
        Mere possession of a ton or more of any other illegal
    substance does not result in any mandatory minimum sentence.
    Only crack cocaine has a mandatory penalty for mere possession.
    Any other drug mandatory minimum requires criminal
    distribution.
        Mandatory minimum sentences have been studied extensively
    and have been found to distort any rational sentencing process.
    They discriminate against minorities. They waste money,
    compared to traditional sentencing approaches. And again, they
    often violate common sense.
        Under the law and general sentencing policy where person
    deserves a sentence of a particular length, it can be given, so
    long as it is within the maximum sentence of the crime.
        However, with mandatory minimums, even when everyone agrees
    that the mandatory minimum is not appropriate, based on the
    nature of the involvement in the crime and background of the
    offender, a judge has to impose the mandatory sentence anyway.
        For these and other reasons, the Federal Judicial
    Conference has recommended on many occasions this Congress
    eliminate mandatory minimum sentences under all circumstances,
    and I can't think of a more fitting place to start such a
    process then to do it with the most notorious, unfair mandatory
    sentences in the Federal system, the crack cocaine penalties.
        My bill, H.R. 1459, the ``Fairness in Cocaine Sentencing
    Act of 2009,'' does just that. First, it eliminates the legal
    distinction between crack and powder by removing the definition
    of crack, thereby leaving cocaine to be penalized in any form
    at the penalty levels presently there for powder cocaine.
        Second, the bill eliminates all mandatory minimum sentences
    for cocaine offenses, handing back the sentencing decisions to
    the Sentencing Commission and judges, who are best equipped to
    determine an appropriate sentence based on the amount and other
    factors taken into account with respect to other--and other
    factors taken into account with other dangerous illegal drugs.
        It will also allow judges to consider the role the
    defendant played in the crime and to avoid the so-called
    girlfriend problem, where someone has very little to do with
    the actual distribution of the drugs, but had some small role
    in the distribution network.
        Unfortunately, with the present situation that person would
    be held accountable for the entire weight of all of the drugs
    in the conspiracy, often resulting in decades of jail time for
    relatively minor criminal activity.
        The commission and our judges know how to do their job, so
    you need to let them do it.
        We would like for this hearing to continue discussion about
    the best way to eliminate the unfair crack penalties and begin
    building a consensus on the way to solve the problem.
        I hope our other Members will co-sponsor my bill, H.R.
    1459, and listened to the increased calls to end the decades of
    illegal discrimination. And if you don't want to co-sponsor
    that bill, at least co-sponsor some of the others so that we
    can come to a consensus on what to do.
        It is my pleasure to recognize the esteemed Ranking Member
    of the Subcommittee, my colleague, the gentleman from Texas,
    Judge Gohmert.
        Mr. Gohmert. Thank you, Chairman Scott.
        I would like to also welcome the witnesses. Thank you for
    joining us today to discuss this important topic.
        The Anti-Drug Abuse Act of 1996 established the sentencing
    levels for Federal crack cocaine offenses. Congress created a
    100 to 1 ratio basically for the quantities of power cocaine
    and crack cocaine that trigger a mandatory minimum penalty.
        The law imposes a mandatory 10-year term for offenses
    involving five kilograms of cocaine or 50 grams of crack or a
    mandatory 5-year term for offenses involving 500 grams of
    cocaine or five grams of crack.
        This sentencing disparity between powder and crack cocaine
    raises important public policy issues, on the one hand, because
    African-Americans comprise the majority of crack cocaine
    offenders to crack cocaine penalties that resulted in a
    disproportionate number of African-Americans serving longer
    sentences than powder cocaine offenders.
        On the other hand, many argue that more severe treatment of
    crack cocaine offenders is justified because of the high rate
    of firearms possession violence and recidivism associated with
    crack cocaine traffic.
        I hope today's hearing will shed light on these competing
    concerns. But many express concerns that despite the intent to
    apply these penalties to mid-level and high-level traffickers,
    a large percentage of those subjected to disparate crack
    penalties are in fact the low-level street dealers.
        If this is the case, I think it demands further examination
    by this Committee and Congress into the differences in which
    crack and powder cocaine are trafficked.
        For instance, it is my understanding that whether it is
    sold on the street as powder or crack, most, if not all,
    cocaine enters the U.S. in the same form. At some point in the
    process, cocaine is cooked down into crack, but at what point?
    Do mid-level traffickers do this, or is this done by the street
    dealers?
        If we are truly serious about focusing Federal drug
    penalties on those who traffic in crack and powder cocaine,
    then we need to fully understand how these drugs are
    trafficked.
        Many also claim that our Federal prisons are full of first-
    time, nonviolent drug offenders. As a former prosecutor and
    judge, I find it a little hard to believe. The likelihood of a
    first-time offender, even a drug offender, being sentenced to
    Federal prison, not simple jail or probation, is pretty slim.
        To be sure, in March 2000 nonviolent offenders housed in
    Federal bureaus or prison facilities accounted for 53.2 percent
    of the total population of inmates. And in fiscal year 2000
    over 77 percent of the 5,841 crack offenders sentenced under
    Federal drug laws had some prior criminal history.
        I believe we must have all the facts before we undertake
    the re-examination of Federal drug sentencing laws. Congress
    must balance a desire to reform the current sentencing
    disparity with the need to ensure that our Federal drug laws
    maintain appropriate tough penalties for crack cocaine
    trafficking.
        One thing that I do believe with all my heart is that when
    these laws were passed, the proponents of these laws, like
    Chairman Rangel, believed it was the best thing.
        I have talked to my friend, Dan Lungren, who was here at
    the time. He said we were told if you don't pass these tougher
    sentences on crack cocaine, then it is a racist move. You don't
    care about the communities in Black neighborhoods, because this
    is killing Black youth. This crack is such a scourge.
        I have got the Congressional Record remarks of Congressman
    Rangel. I have got, you know, the co-sponsorship of the bill.
    It seemed to be heartily supported by so many African-American
    Members of Congress.
        Some have said more recently, though, to have that kind of
    disparity, it has to have been a racist law. Well, it wasn't a
    racist law. It was born out of the best intention on how to
    deal with this scourge, and apparently it was not the best way
    to deal with it. And so now we want to make sure that we do it
    appropriately.
        Of course, President Reagan said there had been some real
    champions in the battle to get this legislation through
    Congress, which was the Anti-Drug Abuse Act of 1996,
    congratulating Congressman Rangel for his work in getting that
    done.
        So obviously, this was not a racist bill when it was
    passed. It was done to try to deal with the difficult problem
    that I saw as a judge was adversely affecting our African-
    American youth.
        So hopefully we can work together to figure out the best
    way to address this problem so there isn't a disparity in
    treatment and we deal with the issues appropriately.
        So, Chairman Scott, I appreciate you calling this hearing.
    We do have a lot to figure out in what is the best way to
    approach this. I appreciate my friends being here to testify.
    Thank you for your interest.
        Mr. Scott. Thank you.
        And we have two panels of witnesses today to help us
    consider this important issue. Our first panel consists of four
    Members of Congress, who are sponsoring reform bills.
        And before we get to our witnesses, we have the Ranking
    Member of the full Committee with us today, the gentleman from
    Texas, Mr. Smith.
        Mr. Smith. Thank you, Mr. Chairman. I won't unduly delay
    us, and I sneaked in behind you, but thank you for that----
        In response to an epidemic of drug abuse associated with
    the trafficking of crack cocaine in the 1980's, a bipartisan
    majority in Congress approved the 100 to 1 ratio in penalties
    between crack and powder cocaine.
        Faced with plummeting powder cocaine crisis, drug dealers
    decided to convert the powder to crack, a smokable form of
    cocaine. Crack was cheap, simple to produce, easy to use, and
    highly profitable.
        One dose of crack could be bought on the street for as
    little as $2.50. Never before had any form of cocaine with such
    a high purity been available at such low prices. Crack produced
    an instant high, and its users became addicted in a much
    shorter time than powder cocaine users.
        Along with the spread of crack trafficking and crack
    addiction came crack-related violence. By the late 1980's over
    10,000 gang members were dealing drugs in nearly 50 cities
    across America. Crack-related murders in many large cities were
    skyrocketing. New York City crack use was tied to 32 percent of
    all homicides.
        A Democratic-controlled Congress responded to this epidemic
    with adoption of Federal drug sentencing policies, including
    the different penalties for selling crack and powder cocaine.
    And sentencing policies were effective in reducing drug-related
    violence in cities.
        Today crime rates, particularly violent crime rates, are at
    their lowest in 30 years, thanks to tough penalties for drug
    offenses and violent crime. We know from years of criminal
    research that a relatively small number of criminals commit a
    disproportionately large number of crimes. Incarceration works
    because it incapacitates offenders, preventing them from
    committing even more crime.
        A solution to the sentencing disparity cannot be simply to
    eliminate the ratio. If Congress considers revising the
    sentencing disparity, we should not discount the severity of
    crack addiction or ignore the differences between crack and
    powder cocaine trafficking, nor should we presume that the only
    solution to the disparity is to lower the crack penalties.
        Cocaine is still one of the most heavily trafficked and
    dangerous drugs in America. Congress should also consider
    whether to increase the penalty as to powder cocaine.
        Scenting Commission data show that crack cocaine is
    associated with violence to a greater degree than most other
    controlled substances. Last year 28 percent of all Federal
    crack offenders possessed a weapon, compared with 17 percent of
    powder cocaine offenders.
        Crack offenses are also more likely to involve offenders
    with a prior criminal history. In 2008 the average criminal
    history category for crack cocaine offenders was category four,
    indicating a greater number of prior convictions for more
    severe offenses than powder cocaine offenders, who averaged a
    category to criminal history.
        Any sentencing reform undertaken by Congress to address the
    disparate impact of crack penalties must not result in a
    resurgence of crack dealing and crack abuse similar to what we
    experienced in the 1980's.
        The American philosopher, George Santanaya, cautioned,
    ``Those who cannot remember the past are condemned to repeat
    it.''
        Mr. Chairman, I look forward to the hearing and to hearing
    from our witnesses as well and yield back the balance of my
    time and thank you for the recognition.
        Mr. Scott. Thank you.
    ?????
        Andrew would also like to recognize the presence of the
    gentleman from Illinois, Mr. Quigley; the gentleman from
    California, Mr. Lungren; and the gentleman from Texas, Mr. Poe.
        Our first witness is the Honorable Charles Rangel. He is
    serving his 20th term as a representative from the 15th
    Congressional District of New York. He is Chairman of the
    Committee on Ways And Means, chairman of the board of the
    Democratic National Campaign Committee. He is a former
    prosecutor and the sponsor of H.R. 2178, the ``Crack-Cocaine
    Equitable Sentencing Act of 2009.''
        Our second witness will be the Honorable Sheila Jackson
    Lee, who represents the 18th District of Texas. She serves on
    the Judiciary Committee, including the subcommittee, the
    Foreign Affairs Committee and the Homeland Security Committee.
    She is a former judge in Texas, and she is sponsoring H.R. 265,
    the ``Drug Sentencing Reform and Cocaine Kingpin Trafficking
    Act of 2009.''
        Our next witness is not with us yet, but he is expected--
    Congressman Roscoe Bartlett of Maryland, who has introduced
    H.R. 18, the ``Powder-Crack Cocaine Penalty Equalization Act of
    2009.'' He represents the 6th District of Maryland and is
    serving his ninth term in the House of Representatives. In this
    Congress he serves as the Ranking Member of the Air and Land
    Forces Subcommittee and the House Arms Services Committee and
    on the Small Business Committee. He is one of three scientists
    in Congress and is a senior member of the Science and
    Technology Committee.
        Our last witness will be the gentlelady from Texas, Maxine
    Waters--as I was saying, the gentlelady from California, Maxine
    Waters, who is the lead sponsor of H.R. 1466, the ``Major Drug
    Trafficking Prosecution Act of 2009.'' She represents the 35th
    District of California and is a Member of the House Committee
    on Financial Services and shares the Subcommittee on Housing
    and Community Opportunity. She is also a distinguished senior
    Member of the Committee on the Judiciary and the Subcommittee,
    as well as the Subcommittee on Immigration, Border Security,
    and Claims.
        We will begin with the gentleman from New York. And
    everyone is aware of the lighting system, so we will ask you to
    try to keep your remarks to 5 minutes.
        Mr. Rangel?

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

        Mr. Rangel. Thank you for this opportunity, Judge and Mr.
    Smith and Members of the Committee.
        This is a remarkable time in our Nation's history as we
    have a President that really doesn't believe that how things
    have acted in the past should guide our conduct in the future,
    whether you talk about education, climate control, health
    reform, and certainly we have to review what we have done with
    our criminal justice system that allow us to believe that
    putting over 2 million people in jail is the answer to some of
    the social problems we face.
        Now, this is especially so when we find our great Nation
    jailing more people than the whole world together have seen fit
    to jail in their countries.
        And since this is the Homeland Security Subcommittee, it
    seems that it would make a lot of sense to see how much does it
    cost to have these people locked up, what good purpose is being
    served, and what impact has it had in a positive way on our
    society.
        When you think about the $60 billion that it actually costs
    with taxpayers' money, you include in that they get health
    care, they don't produce anything, they don't contribute to our
    Nation's security in any way, and indeed they are not even
    available to be drafted if we had a draft or to volunteer if
    they wanted to volunteer.
        And so the whole system I would hope that this process and
    the attorney general would want to address. This is especially
    so if you take a look and see who are these people that are
    being locked up?
        It is not enough to say that because the system has worked
    against people who did not get the benefit of a good education
    or come from communities with low or nor incomes, that it
    appears to be racist.
        These are the facts. You can go to the census, and if you
    do find out the areas of high unemployment, the areas of
    underserved communities in terms of medicine, where the schools
    have failed, you would see that the poor White minorities, the
    poor Whites that have not had access to the tools that keep
    people away from crime and away from jail.
        I have personal experience, dropped out of high school when
    I was 17, in 1948. It was strongly suggested to me that I join
    the Army or that the other consequences might cause me to be in
    a lot more trouble. So the Army has been an alternative to kids
    that had little or no education and couldn't get jobs.
        The whole idea of leaving a jail and putting your life
    together is almost unrealistic in most inner cities. I don't
    know what happens to the rural areas, but saying that you have
    that conviction, it doesn't really count to say, ``I didn't
    know what was in the shoebox, as someone told me just to take
    this to the airport.''
        And so I think we have a great opportunity not to talk
    about how we got here, but this darn thing isn't working. It is
    not working for Blacks. It is not working for minorities. It is
    not working for our country.
        And to take away the discretion of a judge, we don't need
    judges if all you have to do is put something in a computer,
    and you could find this to be a fact to give them 5, 10, 15, 20
    mandatory years.
        So I am so glad that this Committee has seen fit once again
    to review what is going on. But from a practical matter, it
    just seems to me that the whole system needs a review. And we
    have to see how we can make America a healthier, more
    productive, better educated, and give an opportunity for
    everybody in this great country of ours to be able to be able
    to produce.
        Locking up people in jail doesn't make any monetary sense,
    doesn't make any social justice sense. And in terms of national
    security, they cannot produce for this country economically or
    defensively.
        So I am glad that we have a judge here who has this
    responsibility that you have to enforce the law. Get off the
    bench. These are things that the Congress is responsible for.
        But is now have been aggressive enough to take a look at
    everything during this fiscal crisis and see what works, what a
    great opportunity it would be, what a message to send to
    America and to the world that we have used this system.
        It hasn't worked for us, and we have got to find a better
    system where people, one, are not going to have the temptation
    of going to jail in the first place, because you are not going
    to find any kid that is productive, that is proud of what he is
    doing, that has self-esteem, that wants to serve this country
    in the private or public sector, that is even thinking about
    taking drugs.
        If we can deal with that problem, then they won't have the
    other end to worry about as to whether or not his sentence and
    the disparity should or should not exist. Keep our kids out of
    jail. Keep them productive, have self-esteem and be able to
    make a contribution to this great country.
        And I know this Congress is anxious and willing to make a
    contribution toward that effort. Thank you.
        Mr. Scott. Thank you, Mr. Rangel.
        Ms. Jackson Lee?

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

        Ms. Jackson Lee. Thank you very much, Mr. Chairman. It is a
    privilege to have the opportunity to share with the
    Subcommittee on Crime, and I thank you and Ranking Member Judge
    Gohmert and my colleagues here for giving us the opportunity.
        It is an added privilege to sit with the Chairman of the
    Ways and Means Committee, but someone who has been a champion
    for the issues of drug sense, if you will, and adding his
    thoughts to this discussion I think enormously important.
        I don't think anyone in this room, made a large number of
    us, have been impacted by the horrific disparities or the
    unfair disparities that we have come to understand on the issue
    of crack cocaine.
        It first came to my attention, Judge, by a brother of a
    extended friend of the family, if you will, who in a nonviolent
    way had utilized drugs and is now serving a long, long sentence
    of 25 years plus.
        I know our Chairman worked very hard on the issue, dealing
    first with his constituent, a student at Hampton University,
    and brought this issue to us and has championed the unfairness
    of the sentencing process.
        We also have just make note of the fact that there is
    something better to incarcerating nonviolent criminals, who may
    have been caught up in the drug controversy or conflict, if you
    will, and I would like to offer these thoughts.
        And in the prisons of America today there are resident--
    there are more prisoners in America's jails than the residents
    than the states of Alaska, North Dakota and Wyoming combined.
    Over one million people have been warehoused for nonviolent and
    often petty crimes. In many instances the nonviolent crimes
    involve drug use.
        The European Union, with a population of 370 million, has
    one-sixth the number of incarcerated persons as we do, and that
    includes violent and nonviolent offenders. And this is one-
    third the number of prisoners which America, a country with 70
    million people fewer, incarcerates for nonviolent offenses.
        I think what we are doing today answers those concerns, and
    I am delighted that included in the witness list we have the
    assistant attorney general of the criminal division, Lanny
    Breuer, and a dear, dear colleague and friend of this
    Committee, The Honorable Ricardo Hinojosa, who has been a
    leader on these issues.
        H.R. 265 was introduced in the 110th Congress, and it has
    bipartisan support. At that time it was cosponsored by then
    Congressman Chris Shays. I have reintroduced it this year.
        And specifically the legislation, the Drug Sentencing
    Reform and Cocaine Kingdom Trafficking Act of 2009, seeks to
    increase the amount of a controlled substance or mixture
    containing a cocaine base, i.e., crack cocaine, required for
    the imposition of a mandatory minimum prison sentence for crack
    cocaine trafficking to eliminate the sentencing disparity
    between crack and powder cocaine.
        It also eliminates the 5-year mandatory minimum prison term
    for first-time possession of crack cocaine, very crucial in
    going right to the issue of giving our judges discretion.
        It directs the U.S. Sentencing Commission to review and
    amend, if appropriate, the sentencing guidelines for
    trafficking in a controlled substance to reflect the use of a
    dangerous weapon or violence in such crimes and the culpability
    and role of the defendant in such crimes, taking into account
    certain aggregating and mitigating factors.
        We know that we have to balance helping those who have made
    a mistake, helping those who have been nonviolent, and as well
    recognizing that we are also in the midst, for those of us on
    the border, in this whole question of drug cartels and bad
    actors that are really doing all of us harm.
        It directs the attorney general to make grants to improve
    drug treatment to offenders in prisons, jails and juvenile
    facilities. I really believe this is a key element to this
    legislation.
        If the bad guys are bad guys, we want to make sure that we
    are addressing that concern, but as it relates to the
    nonviolent offenders, who have been caught up in this system,
    then we want to make sure they have a pathway out that they can
    survive.
        It authorizes the attorney general to make grants to
    establish demonstration programs to reduce the use of alcohol
    and other drugs by substance abusers while incarcerated until
    the completion of parole or court supervision, increases
    monetary penalties for drug trafficking and for the importation
    of controlled substances, and authorizes appropriations to the
    Department of Justice to do this.
        It is important to note that the Obama administration joins
    U.S. District Judge Reggie Walton in urging Congress to end the
    racial disparity by equalizing prison sentences for dealing
    crack cocaine, or crack versus powder cocaine.
        The assistant attorney general, Lanny Breuer, is reported
    as stating that the Administration believes Congress' goal
    should be to completely eliminate the disparity between the two
    forms of cocaine.
        There is a racial underlying issue here, but it is also a
    fairness issue, because under current law, selling five grams
    of crack cocaine triggers the same 5-year mandatory minimum
    sentence as selling 500 grams of powder cocaine.
        And so it is important that we address the question of
    kingpins that this legislation does, but at the same time we
    eliminate the mandatory minimum sentencing laws that require
    harsh automatic prison terms for those convicted of certain
    crimes, most often drug offenses.
        And Congress did that allegedly to apply to the drug
    conspiracies and certain gun offenses, but we have caught in
    this individuals who can be rehabilitated. This legislation,
    H.R. 265, will address that question and ensure that we have
    the opportunity to get the serious drug traffickers, but at the
    same time we will get those who are able to be rehabilitated.
        Let me just say that this sentencing scheme has had a
    racially discriminatory impact. For example, in 2007 82.7
    percent of those sentenced federally for crack cocaine offenses
    were African-Americans, despite the fact that only 18 percent
    of crack cocaine users in the U.S. are African-Americans.
        In that instance we are locking up a whole generation of
    individuals that can be rehabilitated. In most instances those
    individuals were not violent.
        So, Mr. Chairman, I would ask that colleagues consider H.R.
    265 and is well I would indicate to them that we can do better
    than incarcerating everyone that we are involved in, and also
    look forward to the addressing of the legislation I have on the
    early release H.R. 61 so that we can reform our criminal
    justice system.
        Thank you very much.
        Mr. Scott. Thank you.
        Mr. Bartlett?

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

        Mr. Bartlett. Good morning Chairman Scott, Ranking Member
    Gohmert, and Members of this Subcommittee. Thank you for the
    opportunity to share my views with you today concerning the
    100-1 Crack versus Powder Cocaine Disparity. I recognized in
    2002 that this ratio that had been adopted in haste and driven
    by fear was not justified by the facts. I recognized that this
    disparity which discriminated against lower income individuals
    who more often use crack was not justified by the effects of
    crack compared to powder cocaine, and I introduced a bill to
    address it.
        Since then more evidence has accumulated to strengthen my
    convictions. This Congress I introduced H.R. 18, the ``Powder-
    Crack Cocaine Penalty Equalization Act of 2009,'' to change the
    applicable amount for powder cocaine to those currently
    applicable to crack cocaine.
        I first introduced an identical bill in 2002. I am here
    today to specifically welcome and support the most recent
    position of the Justice Department that the sentencing
    disparity should be reduced. I would like to eliminate it.
        I welcome this hearing. I hope that Congress will follow
    the recommendations of numerous authorities and approve
    reducing this ratio.
        In December of 2007, the U.S. Sentencing Commission
    unanimously voted to reduce retroactively lengthy sentences
    meted out to thousands of people convicted of crack cocaine
    related offenses over the past two decades.
        That same month the U.S. Supreme Court ruled that a Federal
    judge hearing a crack cocaine case, ``may consider the
    disparity between the guidelines treatment of crack and powder
    offenses.''
        Both of these decisions reflect a growing concern that
    there should not be a 100 to 1 ratio in the amount of powder
    cocaine and crack cocaine that trigger mandatory minimum
    sentences.
        We now have more and better information than we did in the
    past in order to assess the ratio and make adjustments. Any
    changes to the ratio must be based on empirical data. I am a
    scientist. I have a Ph.D. in human physiology.
        With the substantially more evidence that we have now, the
    100 to 1 unequal treatment is not justified. Our laws should
    reflect the evidence of harm to society. If we don't adjust
    this ratio by reducing it, we would be clinging to fear instead
    of facts.
        There seems to be bipartisan support for the adjustment in
    the ratio. The law places great value on maintaining precedent,
    but precedent based on fear should not be protected.
        I am also an engineer. As an engineer I know that in order
    to make improvements, we should be in a constant state of
    reexamination. The past good faith reasons for the 100 to 1
    disparity cannot be justified by the current evidence that has
    accumulated. Politics and the law must catch up to scientific
    evidence.
        I noted in 2002 I first introduced--that in 2002 I first
    introduced a bill to eliminate the disparity in sentencing
    between crack and powder cocaine with regard to trafficking,
    possession, importation and exportation of such substances by
    changing the applicable amounts for powder cocaine to those
    currently applicable to crack cocaine.
        Several of my colleagues have introduced legislation to
    address the same issue to little effect. However, we have
    recently been bestowed an opportunity. Last month the Justice
    Department--it was the first time--called upon Congress to pass
    legislation that would eliminate the significant disparities
    for those convicted of crack and powder possession,
    trafficking, importation and exportation.
        For too many years unjustified disparate treatment of crack
    and powder cocaine has had a racially disproportionate and
    unjust impact upon our poor people and minority communities.
    Congress should not support the status quo.
        I hope that my colleagues will not allow the pursuit of the
    perfect to prevent the potential adoption of a compromise that
    would reduce the unjustified current 100 to 1 disparate ratio
    in the treatment of crack compared to powder cocaine.
        I thank you for your efforts on behalf of the Congress and
    to advance the goal of justice in our society. I thank you for
    having me here today, and I ask your leave that I might go back
    to my Subcommittee. Thank you very much for having me.
        [The prepared statement of Mr. Bartlett follows:]
            Prepared Statement of the Honorable Roscoe G. Bartlett,
            a Representative in Congress from the State of Maryland
        Good morning Chairman Scott, Ranking Member Gohmert and Members of
    this Subcommittee. Thank you for the opportunity to share my views with
    you today concerning the 100-1 Crack vs. Powder Cocaine Disparity. I
    recognized in 2002 that this ratio that had been adopted in haste and
    driven by fear was not justified by the facts. I recognized that this
    disparity which discriminated against lower income individuals who more
    often use crack was not justified by the effects of crack compared to
    powder cocaine and I introduced a bill to address it. Since then, more
    evidence has accumulated to strengthen my conviction. This Congress, I
    reintroduced H. R. 18 The Powder Crack Cocaine Penalty Equalization Act
    of 2009 to change the applicable amounts for powder cocaine to those
    currently applicable to crack cocaine. I first introduced an identical
    bill in 2002. I am here today to specifically welcome and support the
    most recent position of the Justice Department that the sentencing
    disparity should be reduced. I welcome this hearing. I hope that
    Congress will follow the recommendations of numerous authorities and
    approve reducing this ratio.
        In December of 2007, the U.S. Sentencing Commission unanimously
    voted to reduce retroactively lengthy sentences meted out to thousands
    of people convicted of crack cocaine-related offenses over the past two
    decades. That same month, the U.S. Supreme Court ruled that a federal
    judge hearing a crack cocaine case ``may consider the disparity between
    the Guidelines' treatment of crack and powder offenses.''
        Both of these decisions reflect a growing concern that there should
    not be a 100:1 ratio in the amounts of powder cocaine and crack cocaine
    that trigger mandatory minimum sentences. We now have more and better
    information than we did in the past in order to assess the ratio and
    make adjustments. Any changes to the ratio must be based on empirical
    data. I am a scientist; I have a Ph.D. in human physiology. With the
    substantially more evidence that we have now, the 100-1 unequal
    treatment is not justified. Our laws should reflect the evidence of
    harm to society. If we don't adjust this ratio by reducing it, we would
    be clinging to fear instead of facts.
        There should be bipartisan support for the adjustment in the ratio.
    The law places great value on maintaining precedent, but precedent
    based on fear should not be protected. I am also an engineer. As an
    engineer, I know that in order to make improvements, we should be in a
    constant state of reexamination. The past good faith reasons for the
    100-1 disparity cannot be justified by the current evidence that has
    accumulated. Politics and the law must catch up to scientific evidence.
        I noted that in 2002, I first introduced a bill to eliminate the
    disparity in sentencing between crack and powder cocaine, with regard
    to trafficking, possession, importation, and exportation of such
    substances, by changing the applicable amounts for powder cocaine to
    those currently applicable to crack cocaine.
        Several of my colleagues have introduced legislation to address the
    same issue to little effect. However, we have recently been bestowed an
    opportunity. Last month, the Justice Department for the first time
    called upon Congress to pass legislation that would eliminate the
    significant disparities for those convicted of crack and powder
    possession, trafficking, importation and exportation. For too many
    years, unjustified disparate treatment of crack and powder cocaine has
    had a racially disproportionate and unjust impact upon on poor people
    and minority communities. Congress should not support the status quo. I
    hope that my colleagues will not allow the pursuit of the perfect to
    prevent the potential adoption of a compromise that would reduce the
    unjustified current 100-1 disparate ratio in the treatment of crack
    compared to powder cocaine. I thank you for your efforts on behalf of
    the Congress to advance the goal of justice in our society and I thank
    you for having me here today.
                                   __________

        Mr. Scott. Without objection, you will be excused.
        Ms. Waters?

     TESTIMONY OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CALIFORNIA

        Ms. Waters. Thank you very much. Good morning, Chairman
    Scott, Members of the Committee.
        I thank you for the opportunity to appear before you today
    to discuss mandatory minimum sentences for drug offenses and my
    proposal to eliminate drug sentencing disparities and to
    redirect Federal prosecutorial resources toward major drug
    traffickers.
        I first introduced this proposal 10 years ago in the 106th
    Congress. And I have held town hall meetings at the CBC
    legislative weekends for about 12 years. I have also worked
    with Families Against Mandatory Minimums and the Open Society
    Institute that is represented by Ms. Nkechi Taifa, who is here
    today. And I have traveled the country sharing the stage with
    Kenda Smith, who became the poster child for what is wrong with
    these mandatory minimum sentences.
        And yet this is the first legislative hearing to consider
    the bill, and I thank you for that. I sincerely hope that
    today's hearing is the start of legislation that will end the
    sentencing disparities so that we can begin to refocus Federal
    resources to lock up the major drug traffickers.
        The current sentencing requirements fail to accomplish the
    legislative intent in the 1986 Anti-Drug Abuse Act and
    inadvertently waste government resources on low-level drug
    offenders.
        Moreover, the act has had a disparate impact on the
    African-American community, resulting in incarceration of a
    disproportionate number of African-Americans, often for many,
    many years.
        And on March 12, 2009, I re-introduced the ``Major Drug
    Trafficking Prosecution Act,'' H.R. 1466, to end mandatory
    minimum sentence for drug offenses and refocus scarce Federal
    resources to prosecute major drug kingpins.
        This bill would eliminate all mandatory minimum sentences
    for drug offenses, curb Federal prosecutions of low-level drug
    offenders, and give courts and justice greater discretion to
    place drug users on probation, or as appropriate, to suspend
    the sentence entirely.
        This bill restores discretion to judges and allows them to
    make individualized determinations that take into account a
    defendant individual and unique circumstances instead of being
    forced to apply stringent sentencing requirements that don't
    necessarily fit the crime.
        The Major Drug Traffickers Prosecution Act of 2009 goes to
    the root of the problem by creating a more just system that
    will apply penalties actually warranted by the crime instead of
    mandating sentences regardless of individuals' circumstances,
    as required under current mandatory minimum laws.
        It does so by eliminating the mandatory minimum sentences
    for simple possession, including the notorious 5-year mandatory
    for possession of five grams of crack cocaine, distribution,
    manufacturing, importation and other drug related offenses and
    allows the United States Sentencing Commission to set
    appropriate proportionate sentences with respect to the nature
    and seriousness of the offense and the role and background of
    the offender.
        That bill also addresses other problems relating to the use
    of mandatory minimum sentences by curbing prosecutions of low-
    level drug offenders in Federal court and by allowing Federal
    prosecutors to focus on the major drug kingpins and other high-
    level offenders.
        Additionally, my bill would strip current statutory
    language that limits the court's ability to place a person on
    probation or suspend the sentence, this allowing for discretion
    as appropriate under certain circumstances.
        I would like to make sure the record today includes several
    documents that provide much greater detail than I can provide
    in this testimony today.
        Mr. Chairman, with your permission, I am submitting for the
    record that letter from Judge Lake, the statement from U.S.
    District Court Judge Castle, and the report by Families against
    Mandatory Minimums, ``Correcting Course: Lessons from the 1970
    Repeal of Mandatory Minimums.''
        In the Drug Abuse Act of 1986, Congress reinstated
    mandatory prison terms by defining the amount of certain drugs
    they believed would be in the hands of major drug kingpins.
    Accordingly, individuals possessing a certain threshold amount
    of crack powder cocaine face a mandatory minimum sentence.
        The original intent was to concentrate Federal resources
    toward the prosecution of major sources responsible for
    trafficking drugs into the United States. The rationale for
    this policy decision was to disrupt the supply of drugs from
    their source and remove dangers of criminal enterprises from
    communities.
        When effectively carried out, this approach was expected to
    reduce the availability of drugs on the streets and weaken some
    of the activities leading to increased drug use and drug
    related crimes. Twenty years later, the so-called war on drugs
    has not been long, and mandatory drug sentences have utterly
    failed to achieve these congressional objectives.
        Mandatory minimum sentences are not stopping major drug
    traffickers. They are, however, resulting in the incarceration
    of thousands of low-level sellers and addicts. Moreover, these
    length and drug sentences have increased the need for more
    taxpayer dollars to build more prisons.
        Finally, the sentences are disproportionately impacting
    African-Americans. While African-Americans comprise only 12
    percent of the U.S. population and 14 percent of drug users, we
    are 20 percent more like putting to be sentenced to prison than
    White defendants. Much of this disparity is due to the severe
    penalties for crack cocaine.
        In 2007--it is my time? It is. I will yield back my time
    and try and answer the questions, which may help complete
    testimony.
        Thank you very much, Mr. Chairman.
        Mr. Scott. Thank you, Ms. Waters.
        And on your bill dealing with mandatory minimums
    specifically, we are holding a hearing in July on mandatory
    minimums, and we would appreciate your operation. We will see
    what we can do about mandatory minimums generally, not just
    drug offenses.
        Thank you very much.
        I would like to recognize the presence of the Chairman of
    the Committee, Mr. Conyers, and the gentleman from Tennessee,
    Mr. Cohen.
        Are there questions for the Members? If not, we will----
        Mr. Gohmert. I know we normally don't ask questions of
    Members, but I was just wanting to have an opinion question of
    Chairman Rangel, because I know that this is a passion of yours
    for decades now.
        As a judge, one of the things that are there to meet in
    Texas is that they are not complying should have with the Texas
    constitution, which required that we educate and rehabilitate
    people--at least try, while they were in prison.
        I was pleased in Texas started building what we will call
    substance abuse felony punishment facilities. What they were,
    you were locked up, but the purpose was to deal with your
    addiction. And as the Chairman knows, then said 20 years ago,
    is addictive stuff.
        And so I am told that of all the judges in our area, I
    think many more people to the substance abuse facility than
    other judges. But it was lockdown facility for 10 months. If
    you didn't have your GED, you have got in there.
        The people in there went through 12-step program. If they
    had their GED or diploma from high school, then they could get
    college. We would call some other training they could get back
    in high school vocational training, carpentry training, things
    that they could be equipped with where they could get a job
    when they got out.
        It was about 50 percent successful as far as recidivism or
    getting back into cocaine. It was my experience that 30-day
    programs didn't work so well. I even had a couple come out.
    They had met at the treatment facility, and they planned all
    along on celebrating tonight of graduation from the 30-day
    facility by using cocaine, which brought them back to me again
    when I got a call.
        But anyway, what do you think of facilities like that--say,
    a 10-months treatment program. You work on your education. The
    deal was 12-step program. You learn a trade, something you can
    get a job with. What is your opinion about facilities like
    that?
        Mr. Rangel. Judge, when I was a Federal prosecutor, I
    thought as a Federal prosecutor. After we sent them to jail, I
    just went off to the next case.
        Once they get to the jail, what you are saying, Judge, just
    makes common sense. Try to make certain that while you have
    that person, expose them to a different way of life, and try to
    avoid from getting the education from criminals, that that is
    all they know while they are in jail.
        But right now at 79 years old, Judge, I am trying to think
    of why they hell did they go to jail in the first place? What
    were the conditions and surroundings that allowed them to
    believe that using and carrying cocaine was the only way that
    they could survive as young people in a community?
        And so there is no question that if someone is in intensive
    care, the treatment should be sensitive, since he is in
    intensive care. But as we do with medicine, I am more concerned
    with preventive then I am in what happens when they make a big
    mistake.
        But you are 100 percent right. Without showing some
    compassion, some sensitivity, it is just a merry-go-round, and
    it is just a short amount of time where 70 percent of those
    that are in are going to return.
        So anything that you try to do in terms of stopping
    addiction, educating and preparing someone to deal with the
    real world has to be complimented. But there is no question in
    my mind that more often than not they didn't have to go to jail
    in the first place.
        Mr. Gohmert. But you said, you know, you wonder why, if we
    send them to jail, if I send somebody to the substance abuse
    facility, the whole purpose, it was a condition of probation,
    and the whole goal for sending them, even though they were
    locked up, was because of their addiction and to deal with
    that.
        And you know, I had friends from Rotary. I have seen kids
    through Safe-P, and they were furious at me and couldn't
    believe, but the whole purpose was to get them cured, or at
    least treat their addiction. So that was really the purpose. It
    wasn't to lock them up. It was to force them to deal with----
        Mr. Rangel. Once they got to you, the system had broken.
    You were courageous for taking those steps, because once you
    got them, you are limited in what you could do, and you chose
    to do what you thought was in the best interest of this human
    being.
        So I remember, when I was prosecuting in the Southern
    District of New York, to make certain they got long time, I
    would have the cases transferred to Texas. [Laughter.]
        Mr. Gohmert. Oh, appreciate the Chairman's--thank you.
        Mr. Scott. The gentleman from Michigan?
        Gentleman?
        Mr. Poe. Thank you, Mr. Chairman.
        Thank you all for being here.
        After serving 22 years on the criminal court bench in
    Houston, hearing 25,000 felonies, later in my career, as Ms.
    Jackson Lee knows, I tried a lot of innovative things. I call
    it poetic justice, but be that as it may.
        My real question goes deeper than some of the things that
    you all have talked about, and I really want your opinion. One
    thing about our system in state courts as opposed to Federal
    system as you said, Mr. Chairman, Federal judges really don't
    sentence folks. They just stick something in a computer, and it
    comes out and tells them what they are supposed to do--no
    discretion, no common sense.
        Congress has set such tight reins on sentencing that
    Federal judges have no discretion. That is one reason I would
    never want to be a Federal judge. Federal judges have told me
    many times that the hard fast system promotes, you know,
    injustice each way--too high sentences, too low a sentence. So
    sentencing guidelines in general is what my question is.
        Do you think Congress should revisit that whole concept of
    hard fast sentencing guidelines, go to more discretion across
    the board, or just discretion on this area of crack and powder
    cocaine? That is my question to all three of you.
        Mr. Rangel. Well, let me answer first, because across the
    board you don't need judges if they don't have discretion. They
    have a human being in front of them. They have factors that you
    just can't get into statutes. We don't know the sensitivity as
    judges do.
        That is why we select them, hopefully, with the ability to
    understand each and every case where justice is what prevails
    and not a mandatory sentence. It has just been in these cases.
    When you are talking about 20 and 25 and 30 years, it just
    shoots that at you.
        But, Judge, if we got to respect the judiciary, we should
    give them to discretion in all cases.
        Mr. Poe. I agree with you. There is no substitute for a
    good judge. The system will never work if we have bad judges on
    the bench, regardless of what system we use.
        Ms. Jackson Lee?
        Ms. Jackson Lee. Thank you, Judge. And we are reminded,
    certainly, of those good works of poetic justice, so we thank
    you for that--and I must say provocative, with some agreeing
    and not agreeing, but the discretion was there, and that is
    important.
        I do think we make steps, and I think the present structure
    of looking at at least equalizing the sentencing and giving
    discretion as it relates to crack cocaine, and then building on
    that is very important. I think to add to the judge's
    discretion should be the tool.
        H.R. 265, of course, has the opportunity for grants to be
    rendered to ensure that there is some rehabilitation aspect to
    it, and this is the Federal system. You well know that we have
    been successful--and, however, the funding has been short--on
    what we called drug courts in Texas.
        And I would like to cite Catherine Griffin, who came out of
    the drug courts, rehabilitated herself and has organized
    prostitutes who are drug addicted, trying to get them to reform
    their lives.
        So I do think there is a direct relationship to the
    discretion of the judge to help in the fairness of treatment of
    that particular offender that is before them, to give them a
    pathway out or to be able to determine that they are such a bad
    actor at this point that they can't be rehabilitated.
        I also think there is something valid as we go forward in
    this legislation about the question of retroactivity. And my
    legislation is now being reviewed to eliminate the language
    that might say that you couldn't address the question of those
    incarcerated presently. I believe we should go forward, but as
    well look at those who are nonviolent.
        So that would be at the discretion of the judge as to
    whether or not a petition would come forth from a lawyer,
    asking for their incarcerated client to be considered under
    these laws. Discretion of the judge I think is crucial.
        Mr. Poe. Ms. Waters?
        Ms. Waters. I basically share that opinion. I cannot
    reconcile that we require judges to be qualified. We rate them.
    We have commissions and committees that review them. We
    basically try and determine whether or not they are fit,
    whether or not they are qualified to make decisions.
        And then to have a cookie-cutter kind of regulation or
    operations that would dictate exactly what they are to do in
    sentencing just does not make good sense. It is a
    contradiction.
        And so I generally disagree with mandatory sentencing. I am
    particularly outraged by what has happened over the years with
    crack cocaine. I respect that there are those who say that they
    did it to help the Black community, but it certainly has hurt
    the Black community.
        What you have, particularly now indicates that these young
    people like Kenda Smith, who is in college at Morgan State,
    come from a great family. Mother was a teacher, father,
    community leaders. And she just happened to be at the wrong
    place at the wrong time with the wrong individual. There was no
    reason this young lady should have been sentenced, I think, to
    over 10 years for, you know, crack cocaine.
        And so you have a lot of families that have been destroyed,
    communities that have been upset with these kinds of
    sentencing. We have young people, yes, who have been caught
    with small amounts in their possession. They are not dope
    dealers. They are not kingpins. They are just stupid. They
    don't know--in a dare--and they deserve to be reprimanded, to
    be punished in some way, but not this way.
        And so I have been on this issue for so long and so many
    years and traveled around the country on that, because I think
    it is one of the issues that we as public policy makers really
    need to straighten out. So I thank you very much.
        Mr. Poe. Thank you, Mr. Chairman. I yield back. Thank you.
        Mr. Scott. Thank you.
        Mr. Cohen. Is this on? Special thing we have got here. I
    guess it is on. If not, I can project pretty well.
        I don't want to put you all on the spot on kind of a
    separate issue, but it is related. And that is some of Chairman
    Conyers' most deified people, his heroes--and mine, too--jazz
    musicians in the 1930's were known to smoke marijuana.
        And Harry Anslinger started a war on marijuana, which was
    not legal up to that time, but it was known as something that
    was basically smoked by or referenced to Hispanics and African-
    Americans, and they made this war on marijuana.
        A lot of people have been arrested for marijuana and have a
    record that make it difficult for them to get jobs later on in
    life, because they have got the scarlet letter. And we spend a
    lot of time in our Federal enforcement working on marijuana
    laws rather than crack and cocaine and meth and heroin.
        Yesterday FBI Director Mueller first suggested people have
    died because of marijuana. He later retracted that and said no,
    he didn't know anybody that died because of smoking marijuana.
    But he didn't believe that we should change our policies,
    because he thought it was a gateway drug.
        Do any of you feel that marijuana maybe should be less of a
    priority, considering that Mexico is producing so much and
    causing so many problems on our borders and our communities,
    leaving scarlet letters on people for a drug that has become
    recognized as being less harmful than any of the other drugs
    that bother America?
        Mr. Rangel. I don't remember the last time anyone was
    arrested in the state of New York for marijuana. I mean,
    smoking marijuana in the streets of Manhattan, you know, the
    cop may say, ``Don't do it on my beat,'' but nobody is getting
    arrested.
        There is no question that with the limited resources we
    have and they have restrained what we put on law enforcement,
    that we ought to decriminalize it. I would suggest that we
    should do things to discourage people from using cigarettes as
    well as marijuana.
        But the whole idea that we have a law in the book that we
    have to go do heavy research to see who has ever been arrested
    for it means that has to be reviewed and decriminalize.
        Ms. Jackson Lee. I think the scarlet letter--I agree with
    my good friend on this issue of resources, and I think the
    scarlet letter has hampered many young people, who are now
    moving away from using, who had an incident during college
    years, for example.
        I have worked with college students, who are forbidden from
    getting loans or other benefits, because they have had a
    conviction or a citation or a misdemeanor of sorts on this
    whole question of marijuana.
        We have larger fish to fry. I think there are issues
    dealing with addiction, and someone who needs treatment period
    and overuse of anything. I certainly think we have made
    mistakes in penalizing people for medicinal use. We saw some
    cases that were absolutely ludicrous, people who are raising it
    for those purposes, who have been directed to use it.
        I think we should open up this whole can of worms, and I
    would hope that the Justice Department could work with this
    Committee and work with the Members of Congress and other
    advocates as to how better to assess the use of marijuana.
        Ms. Waters. Let me just say that I wish that we as elected
    officials had the courage to deal with difficult issues rather
    than get whipped into line because of the necessity of re-
    election.
        In California you know we have medical marijuana. This
    attorney general, one of the first things he has done is to
    back off the feds from interfering in California state law,
    where medical marijuana appears to be helping so many people
    with cancer and glaucoma in particular.
        And so we need to view marijuana a lot differently. I am
    glad that FBI Director Mueller backed off of saying marijuana
    had caused the deaths, because no one can credibly represent
    that that is the case.
        We need to view marijuana the same way that we view cocaine
    and other drugs in this way. If in fact you are a drug dealer
    with huge amounts of drugs--I don't care what they are--you
    need to be dealt with.
        If you are a kid on the street smoking marijuana and you
    happen to be a user, you should be dealt with a lot differently
    than someone who is out there selling large amounts of
    marijuana.
        So I think we have to just, you know, gain the courage to
    say that we are not going to view marijuana in the same ways as
    we view crack--I mean cocaine and other very, very hard drugs.
    And it is a difference between small amounts of possession for
    use and large amounts of possession for sale, period.
        Mr. Cohen. Mr. Chairman, thank you for the time. If I am
    correct, I know I am about over. I think if you have a
    conviction for marijuana possession, you can't get a
    scholarship now. And that is just unbelievable----
        Ms. Waters. Stupid.
        Mr. Cohen [continuing]. And that it affects largely people
    of color disproportionately, who have their convictions and
    then need the scholarships and don't get them. And what does
    that do? Put them in a spiral of failure. That needs to stop.
        Thank you, Mr. Chairman.
        Mr. Lungren. Thank you very much.
        I hear a lot here and can't get in a full debate. Today's
    marijuana is not what your father or your grandfather had in
    terms of the THC.
        Mr. Cohen. My grandfather didn't have it, though.
        Mr. Lungren. No, no, no, no. [Laughter.]
        Every gentleman knows that is an expression.
        Ms. Waters. He had snuff.
        Mr. Lungren. THC amount is much higher today, and even
    though in California we do have legalized medical marijuana, we
    have some of the worst rows in the entire country, devastating
    wilderness areas, national parks, by and large controlled by
    foreign nationals armed with assault weapons in some cases, a
    far more serious situation today than it was 10 years ago, 20
    years ago, 30 years.
        But I would like to--also, you bring up the Sentencing
    Commission. As one of the authors of the Sentencing Commission,
    I tell you the reason why we put in was because of the
    disparity that existed with respect to sentences given by
    Federal judges across the way.
        I had someone visit me in my office. Daughter had been
    sentenced to something on the order of 25 years by a judge in
    Texas, where similarly-situated defendants were being sentenced
    to 1, 2 or 3 years in other Federal courts.
        And this disparity we saw by Federal judges across the
    country is what gave rise to the sentencing. Tried to establish
    guidelines within which sentences could be made, but did
    allow--and still allows--Federal judges go above or below the
    guidelines in their sentence for specific reasons, as long as
    they can articulate it on the record and both sides are able to
    appeal, both to go above or below.
        What I would like to ask, with all respect, Chairman
    Rangel, because you and I were here. You were Chairman of the
    Select Committee on Drug Abuse. I was the Ranking Republican on
    the Crime Subcommittee. I was the Chairman of the Republican
    task force on crime when we--in fall 1986.
        I recall the Subcommittee meeting vividly. Bill Hughes, our
    colleague from New Hampshire--I mean from New Jersey--our
    Subcommittee meetings, we were remarking this bad devastation
    had begun in New Jersey in this run, crack cocaine, terrible,
    and we had to do something about it.
        And if I am not mistaken, at that time we offered an
    amendment to increase the penalties. I recall it being
    supported by you and by others. I am not trying to criticize
    here. What I am asking you is this question.
        I bought that argument at that time. I bought the argument
    presented by people representing largely African-Americans.
    Said to me, ``We are being devastated by this. You have to do
    something about it. The crack cocaine epidemic is causing
    endless violence in our community.'' So we passed it.
        I guess my question to you is this. And I am always willing
    to take a look at something we did before. That is the
    difference between us and lifetime Federal judges. We can be
    knocked out. They can't. That is something we have to keep in
    mind.
        And I guess my question is, were we wrong, Charlie? Or was
    it that our application of the law has been wrong? Did we
    incorrectly diagnose the problem? And has there been no benefit
    to this approach?
        I mean, we have talked about some of the probably
    unintended consequences, but was there no benefit given? Was
    there no relief given to these communities' violence?
        And I guess that we were we wrong at that time? Or did
    facts overwhelm us? Where did we go too far, even though we
    should have gone somewhat?
        Mr. Rangel. I think some of us, Congressman, did their best
    with the facts that we had to work with. It occurred to me as a
    prosecutor that if we had an ingredient coming into a community
    that didn't grow it, didn't manufacture it, and people took
    risk in bringing it into that community, I think when you said,
    ``You do this,'' that the danger that you will be going away to
    jail for a long time, that it would be such a threat, such a
    deterrent that people would say, ``It is just not worth going
    into this Black community with crack. It is just too much time
    involved, and if I have to be involved in a vehicle trafficking
    of drugs, I will leave this one alone.''
        It didn't turn out that way at all, because within that
    community, once you got a piece of this, then you became a
    person that good judgment had nothing to do with your need to
    get this drug, because it just controlled the mind and
    destroyed judgment.
        Another big problem that we had is that--and the Chairman
    remarked about this--we had young girls locked up in jail
    because their boyfriend or drug dealer sent them to the
    Caribbean for a vacation, but while they are there, pick up the
    suitcase one of my buddies there will give you--number of
    carriers that just did not know what they were doing.
        And perhaps the judges found out they should have known,
    but they had such a small role to play in this big massive drug
    trafficking that we have in the world. And so a lot of us still
    have a problem, Congressman, a very serious problem.
        And that is why do the areas with the highest poverty, with
    the highest high school dropout, who do not--men don't grow
    marijuana, don't grow cocoa leaves, have nothing to do with
    opium growing--how do they become the centers?
        And that is where we make mistakes and saying that we got
    to jail you if you are the victim. And so deterrents you would
    hope would work, it just didn't work. When the mind is gone,
    judgment is gone. And you over penalize the victim and anyone
    surrounded in that, because there are just so many people that
    are stupid, but innocent of a crime. They just caught in that
    web.
        And most of the cases we always talk about, the judges in
    Texas, once they got that stuff over there at El Paso, that
    carries a ticket to New York. We had options as to where to
    prosecute--in El Paso and get 5, 10, 15 years or in southern
    district, where they may just dismiss it?
        It was poor judgment--very, very poor judgment.
        Ms. Waters. If I may, Mr. Lungren, I would just like to say
    this before I leave. My problem with the way this has been
    approached is this. We know that tons of cocaine was coming out
    of Nicaragua during the time of the confrontation between the
    Sandinistas and the Contras. It has been documented.
        We also know that drug dealers such as Danilo Blandon, who
    brought cocaine into Los Angeles that was cooked into crack by
    Ricky Ross, who is getting out of prison--just got out of
    prison now, who told us where it came from. And we also know
    that Danilo Blandon was on the payroll first at the DEA and
    then at one point on the CIA.
        They never delved into why and how all of these tons of
    cocaine was coming into first Los Angeles, cooked into crack
    cocaine and spread out across this country. It is an issue that
    we really didn't want to deal with, because we knew--many of us
    knew or believed--that if we got deeply involved, we will
    understand that there was a blind eye turned, why much of this
    cocaine got into our country.
        I spent 2 years investigating. I go to Nicaragua. I talked
    with drug dealers, and I worked with Ricky Ross, and I
    understand that, yes, there was devastation in the African-
    American community. Yes, it was flowing freely--cocaine that
    was turned into crack that made it cheaper and easier for
    people to access.
        But we never talked about the root causes and how it got
    there and who is responsible for. And that is my problem with
    the victims of this crack cocaine serving all of this time, and
    the origin of the cocaine was never really dealt with.
        Ms. Jackson Lee. Very quickly, let me just add, Mr.
    Lungren, to say to you that yes, I believe we were wrong. We
    were good in our intentions, but I think the evidence shows
    where 87 percent of those being prosecuted and convicted now
    for using crack cocaine are African-Americans.
        I think the other side of the coin is that we didn't
    distinguish, as you have heard all of our testimony here,
    between kingpins, violent orchestrators of the marketplace
    versus the casual user, the young user, the silly user.
        We have an opportunity to do that. Give the discretion back
    to the Federal courts with guidelines. I think guidelines are
    important. That helps to at least have an oversight over large
    sweeps of distinctions between low sentencing for the same
    crime and high. Guidelines are important.
        But I think that what we have found out is that with the--
    disparities are so glaring. Then on the back end, it didn't
    focus on the rehabilitation, whether it is in a state prison
    system or whether it is when someone gets out, and so we just
    had people recycled, because there is nothing else to do.
        We have learned our lesson. I think it is now time to
    change, and change as quickly as we can.
        Mr. Scott. Thank you.
        The gentleman's time has expired.
        Does the gentleman from Illinois have questions?
        Mr. Quigley. Thank you, Mr. Chairman.
        Really just two quick thoughts. In your experience are any
    of the states starting to address this disparity in their
    sentencing laws that you are aware of?
        Mr. Rangel. Mandatory sentences and the disparity. It took
    a long time, but they just did it last month.
        Mr. Quigley. If anyone else knows--I mean, the other issue
    is I probably did 200 trials on the other side as a criminal
    defense attorney in Cook County in the 1990's, and my first
    ventures were rooms probably twice this size filled with people
    in preliminary hearings. And the first thing that strikes you
    is--and I said to a sheriff there--doesn't anyone from my
    neighborhood get arrested for cocaine?
        Is there something about the disparity in how
    investigations or arrests take place that also magnifies this
    and the fact that how crack is purchased versus perhaps powder
    in the White community that also enhances this disparity and
    sheer numbers of prosecutions?
        Ms. Jackson Lee. Well, let me just quickly say you hit the
    nail on the head. First of all, coming from Chicago, very large
    city, Houston, the fourth largest city in the Nation, the whole
    criminal justice system skews itself to inner city
    neighborhoods.
        So from the top to the bottom, from the number of police
    officers on the street, the conspicuousness of how crack
    cocaine is sold to the purchaser, if you will, there is nothing
    that is inconspicuous about side corner conversations, the
    passing of the bag. A lot of that is done very conspicuously.
        City councils make determinations. County governments make
    determinations. Police chiefs make the determination, ``Let us
    go to this area.'' They target the area with intense
    utilization of police officers. Arrests are made. It is almost
    like a revolving door. Prosecutors load up on Friday night, and
    then Monday morning you are in court where you happen to be, I
    do see the large loads.
        Cocaine has usually been the silk stocking drug. And in
    fact you probably are least likely to see the exchange, where
    you can visibly be in some neighborhoods in America and see the
    exchange. And it was treated like that. So you would be in a
    penthouse versus somewhere else.
        The resources are all focused on crack cocaine. It was easy
    to run people through state courts, and certainly it was easy
    to run them through Federal courts.
        You also have the conspiracy element as well, which was
    what generated the sentence for the person that I know, the
    brother of a friend, who was in for 25 years. Allegedly, that
    person was in a conspiracy.
        So I think it was clearly blatant, if I might say
    inequitable treatment, maybe even discrimination because of how
    you got it and who you got it from and where you were seen
    getting it.
        Ms. Waters. That basically describes what has happened with
    the arrest and convictions of these young Black men for the
    most part, as you have just alluded to. I think there were
    resources directed toward African-American and inner city
    communities that identified and picked up and arrested young
    people because of the way that crack cocaine was distributed.
        There were gangs that got involved with crack cocaine. And
    again it was quite obvious that something was going on on the
    street. Unemployed youth just became a subculture of young
    people getting involved with penny amounts, where they would
    get a few dollars, but they were not involved for any length of
    time in it.
        It may vary--you know, happen to be able to access a small
    amount for this day or this week, and then of course the
    addiction that came along with it.
        And so what you find basically, those of you who have spent
    time in the criminal justice system, you know and you
    understand very well that poor people, who don't have
    representation, who depend basically on defenders who don't--I
    mean, who have huge caseloads--don't get the defense.
        You also know that oftentimes more resources are directed
    toward arresting in these communities than in richer
    communities. And so it is a problem in the criminal justice
    system, period, where if you happen to be poor, if you happen
    to be Black or Latino, nine times out of 10, if you are a male
    in particular, before you are 21 years old, you are going to
    have an encounter with the police, because the police are
    targeted. This is what they look for. This is what they do.
        If you happen to be in Beverly Hills in my state, you may
    be involved as a teenager in high schools, where young people
    are trading drugs and giving it to each other, but you are not
    going to get busted. It just happens that way.
        Mr. Quigley. Thank you, Members.
        I yield back, Mr. Chairman.
        Mr. Scott. Thank you.
        And I thank our witnesses for being with us today.
        Our second panel will come forward. I will begin.
        The first witness on the second panel will be the assistant
    attorney general for the United States, recently confirmed,
    Lenny Breuer. He began his career as the assistant district
    attorney in Manhattan and continued his career in private
    practice, specializing in white-collar criminal and complex
    civil litigation and congressional investigations.
        From 1997 to 1999, he served as special counsel to
    President Clinton and received his BA from Columbia University
    and his JD from Columbia Law School.
        If people could move quietly, we would appreciate it.
        Our second witness is Judge Ricardo Hinojosa, who has
    served on the U.S. Sentencing Commission since 2003. He was
    appointed chair in 2004. He is the U.S. district court judge of
    the 7th District of Texas.
        Before joining the judiciary, he was an adjunct professor
    at the University Of Texas School of Law and a partner at a law
    firm in Texas. He graduated Phi Beta Kappa with honors from the
    University of Texas at Austin and earned his law degree from
    Harvard Law School.
        The third witness is Scott Patterson, who is state's
    attorney for Talbot County, Maryland, who is testifying on
    behalf of Joseph Cassilly, the president of the National
    District Attorneys Association.
        He has been state's attorney for Talbot County, Maryland,
    for over 20 years and serves as the Maryland director for the
    National District Attorneys Association's Board of Directors.
    He graduated from the University of North Carolina Capitol Hill
    with a degree in political science and Washington and Lee
    University School of Law.
        Or fourth witness is Willie Mays Aikens. He is a former
    major league baseball player, who played first base for the
    California Angels, Kansas City Royals and Toronto Blue Jays
    from 1977 to 1984. In 1980 Mr. Aikens hit two home runs in the
    same game twice during the same World Series, a record that
    still stands.
        In 1994 he was sentenced to over 20 years in prison as a
    result of a Federal crack cocaine charges. He spent 14 years in
    Federal prison and was released in June of 2008. He is
    currently living and working in Kansas City and has come here
    today to share his story with us.
        Our first witness is Bob Bushmann, vice president of the
    National Narcotics Officers Association Coalition. He is the
    statewide gang and drug task force coordinator at the Minnesota
    Department of Public Safety.
        He began his law enforcement career 30 years ago as a
    Minnesota state trooper. He has a bachelors degree from St.
    Cloud State University and is a graduate of the DEA Drug Unit
    Commander's Academy, as well as the FBI National Academy.
        Our next witness is Veronica Coleman-Davis, president and
    CEO of the National Institute of Law and Equity, and to be
    introduced by the gentleman from Tennessee.
        Mr. Cohen. Thank you, Mr. Chairman. We are responsible for
    Texas, but we are not from there.
        Ms. Veronica Coleman-Davis is the former United States
    attorney, having served our Western District of Tennessee from
    1993 to 2001. And she and 12 former U.S. attorneys have formed
    a group called NILE, a river which Memphis, Egypt, sits on. We
    sit on the Mississippi, of course.
        And the NILE is an acronym for National Institute for Law
    and Equity, which is based in Memphis and is looking into long-
    term solutions to racial disparity that exists in the criminal
    justice system and as such has been the inspiration for the
    bill that I filed with Senator Cardin on the Justice Integrity
    Act to try to set up a system within the Justice Department to
    look at 10 jurisdictions to see if there are and what the
    racial disparities are in prosecutions, sentencing and all
    types of issues in criminal justice, not just sentencing.
        She attended the Howard University here in Washington, but
    beyond that she attended the Memphis State University School of
    Law when I attended the Memphis State University School of Law.
        A good friend and a proud, effective member of the
    community--in Shelby County in Memphis, I am pleased that she
    is here, a former public defender, public prosecutor, juvenile
    court referee and, of course, U.S. attorney. Thank you.
        Mr. Scott. Thank you. Thank you.
        And our last witness will be Mr. Marc Mauer, executive
    director of the Sentencing Project. He is one of the country's
    leading experts on sentencing policy, race and the criminal
    justice system.
        He has directed programs on criminal justice policy for
    over 30 years and is the author of some of the most widely
    cited reports and publications in the field, including ``Young
    Black Men in the Criminal Justice System'' and the ``Americans
    Behind Bars'' series comparing international rates of
    incarceration.
        He is a graduate of Stony Brook University and earned his
    Masters of Social Work at the University of Michigan.
        Now, each of our witnesses' written statements will be
    entered into the record in its entirety, and I ask each witness
    to summarize his testimony for 5 minutes or less.
        And to help you stay within that time, there is a lighting
    device that is in front of you, which will turn from green to
    yellow when you have 1 minute left and will turn to red when
    the 5 minutes is up. I hope you can stay within that time
    better than the Members did. [Laughter.]
        Okay. Or at least try.
        We have been called for at least one vote, so let us see if
    we can get Mr. Breuer's testimony and before we leave for the
    vote.
        Mr. Breuer?

       TESTIMONY OF LANNY A. BREUER, ASSISTANT ATTORNEY GENERAL,
     CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

        Mr. Breuer. Mr. Chairman, Ranking Member Gohmert,
    distinguished Members of the Subcommittee. Thank you for giving
    the Department of Justice the opportunity to appear before you
    today to share our views on the important issue of disparities
    in Federal cocaine sentencing policy.
        The Obama administration firmly believes that our criminal
    and sentencing laws must be tough, predictable, fair, and not
    result in unwarranted racial and ethnic disparities.
        Criminal and sentencing laws must provide practical,
    effective tools for Federal, state and local law enforcement,
    prosecutors and judges, to hold criminals accountable and deter
    crime.
        Ensuring fairness in the criminal justice system is also
    especially important. Public trust and confidence are essential
    elements of an effective criminal justice system. Our laws and
    their enforcement must not only be fair, but they must also be
    perceived as fair.
        The perception of unfairness undermines governmental
    authority and the criminal justice process. It leads victims
    and witnesses of crimes to think twice before cooperating with
    law enforcement, tempts jurists to ignore law and facts when
    judging a criminal case, and draws the public into questioning
    the motives of government officials.
        Changing these perceptions will strengthen law enforcement.
    And there is no better opportunity to address these perceptions
    then through a thorough examination of Federal cocaine
    sentencing policy.
        Cocaine and other illegal drugs pose a serious risk to the
    health and safety of Americans. The Administration is committed
    to rooting out drug trafficking organizations in gangs that
    manufacture and traffic these drugs.
        In the 1980's crack cocaine was the newest form of cocaine
    to get American streets. In 1986, the midst of this exploding
    epidemic, Congress passed the Anti-Drug Abuse Act, which set
    the current Federal penalty structure for crack and powder
    cocaine trafficking, punishing the crack form of cocaine far
    more severely than the powder cocaine.
        Since that time, in four separate reports dating back to
    1995, the Sentencing Commission has documented in great detail
    all of the science of crack and powder cocaine, as well as the
    legislative and law enforcement response to cocaine
    trafficking.
        I will not review all of that information here, other than
    to note the mounting evidence documented by the commission that
    the current sentencing policy disparity is difficult to justify
    based on the facts and science, including evidence that crack
    is not inherently more addictive substance and powder cocaine.
        Moreover, the Sentencing Commission has shown that the
    quantity-based cocaine sentencing scheme often punishes low-
    level crack offenders far more harshly than similarly situated
    powder cocaine offenders.
        Additionally, commission data confirmed that in 2008, 80
    percent of individuals convicted of Federal crack cocaine
    offenses were African-American, while just 10 percent were
    White. The impact of these cause a few to believe across the
    country that Federal cocaine laws are unjust.
        Based in significant part on the thorough and commendable
    work of the commission, a consensus has now developed that
    Federal cocaine sentencing laws should be reassessed. Indeed,
    as set forth more fully in my written testimony, many have
    questioned whether the policy goals that Congress set out to
    accomplish have been achieved.
        In the Administration's view, based on all that we now
    know, as well as the need to ensure fundamental fairness in our
    sentencing law, a change in policy is needed.
        We think this change should be addressed in this Congress
    and that Congress' objective should be to completely eliminate
    the sentencing disparity between crack cocaine and powder
    cocaine.
        The Administration, of course, is aware that there are some
    who would disagree. The supporters of the current cocaine
    penalty structure believe that the disparity is justified,
    because it accounts for the greater degree of violence and
    weapons involvement associated with some crack offenses.
        The Administration shares these concerns about violence and
    guns used to commit drug offenses and other crimes associated
    with such offenses. Violence associated with any offense is a
    serious crime and must be punished, and we think the best way
    to address drug-related violence is to ensure that the most
    severe sentences are meted out to those who commit violent
    offenses.
        However, increased penalties for this conduct should
    generally be imposed on a case-by-case basis, not on a class of
    offenders, the majority of whom do not any violence or possess
    a weapon.
        We support the sentencing enhancements for those, for
    example, who used weapons in drug trafficking crimes, but we
    cannot ignore the mounting evidence documented by the
    commission that the current cocaine sentencing disparity is
    difficult to justify.
        At bottom, the Administration believes that current Federal
    cocaine sentencing structure fails to appropriately reflect the
    differences and similarities between crack and powder cocaine.
    The offenses involved each form of the drug, and the goal of
    sentencing serious and major traffickers is significant prison
    sentences.
        We also believe the structure is especially problematic,
    because a growing number of our citizens view it as
    fundamentally unfair.
        Finally, as I mentioned a moment ago, the Administration
    believes Congress' goal should be to completely eliminate the
    disparity.
        Last month the attorney general asked the deputy attorney
    general to form and chair a working group to examine Federal
    sentencing and corrections policy. This group's comprehensive
    review will include possible recommendations to the President
    and Congress for new sentencing legislation affecting the
    structure of Federal sentencing.
        In addition to studying issues related to prisoner reentry,
    department policies and charging and sentencing and other
    sentencing-related topics, the group will focus on formulating
    a new Federal cocaine sentencing policy, one that aims to
    completely eliminate the sentencing disparity between crack and
    powder cocaine, but also to fully account for violence, chronic
    offenders, weapons possession, and other aggravating factors
    associated in individual cases with both crack and powder
    trafficking.
        We look forward to working closely with Congress, with this
    Committee and the Sentencing Commission on this important
    policy issue and finding a workable solution.
        As I stated at the outset, this Administration believes our
    criminal laws should be tough, smart, fair, and perceived as
    such by the American public, but at the same time promote
    public trust and confidence in the fairness of our criminal
    justice system.
        Ultimately, we all share the same goals of ensuring that
    the public is kept safe, reducing crime, and minimizing the
    wide-ranging negative effects of illegal drugs.
        Mr. Chairman, I know I went a little long, but thank you
    for this opportunity to share the Administration's views. And I
    welcome your questions.
        [The prepared statement of Mr. Breuer follows:]
                     Prepared Statement of Lanny A. Breuer

                                   __________

        Mr. Scott. Well, thank you. Thank you very much. And we
    look forward to that report.
        We have three votes pending on the floor, and we will
    return. It will probably be about 20 minutes, but shortly
    before noon before we can get back.
        [Recess.]
        Mr. Scott. We apologize for the delay. There was a little
    procedural issue that had to be resolved, and it took a little
    longer than we thought. As soon as the Ranking Members here, we
    will be----
        We just got a message from the Ranking Member asking us to
    continue. I understand the delay has called some scheduling
    problems from several of our witnesses, but we will begin with
    Judge Hinojosa and make sure that Mr. Aikens can testify and be
    out of here before 1:30.
        Is that what I understand, Mr. Aikens?
        Judge Hinojosa?

     TESTIMONY OF THE HONORABLE RICARDO H. HINOJOSA, U.S. DISTRICT
    COURT JUDGE, SOUTHERN DISTRICT OF TEXAS, AND ACTING CHAIR U.S.
                 SENTENCING COMMISSION, WASHINGTON, DC

        Judge Hinojosa. Thank you. And Chairman Scott, I appreciate
    the opportunity to appear before you on behalf of the United
    States Sentencing Commission to discuss Federal cocaine
    sentencing policy.
        As you all are aware, the commission has considered cocaine
    sentencing issues for many years and has worked closely with
    Congress to address the disparity that exists between the
    penalties for crack cocaine and powder cocaine offenses.
        In 2007 the commission promulgated a crack cocaine
    guideline amendment to address some of this disparity, but was
    and continues to be of the view that any comprehensive solution
    to the problem of Federal cocaine sentencing policy requires
    revision of the current statutory penalties and therefore must
    be legislated by Congress.
        The commission urges Congress to take legislative action on
    this important issue. In the interest of time, I will briefly
    cover some of the information submitted in my written
    statement.
        From the information sent to the commission in fiscal year
    2008, we have found that there were 5,913 crack cocaine
    defendants sentenced in that fiscal year, about 24 percent of
    the drug trafficking cases. And 5,769 powder cocaine defendants
    were sentenced in that fiscal year, about 23 percent of the
    drug trafficking cases.
        So combined, the cocaine sentences were about 47 percent of
    the drug trafficking cases sentenced in fiscal year 2008.
        African-Americans continue to comprise the substantial
    majority of Federal crack cocaine offenders, about 80.6 percent
    in fiscal year 2008, while Hispanics comprise the majority of
    powder cocaine offenders, approximately 52.5 percent of the
    defendants.
        Federal crack cocaine offenders consistently have received
    longer average sentences than powder cocaine offenders. In
    fiscal year 2008 the average sentence for crack cocaine
    offenders was 115 months, compared to 91 months for powder
    cocaine offenders, a difference of 24 months or 26.4 percent.
        Most of the difference is due to the statutory mandatory
    minimum penalties. In fiscal year 2008 crack cocaine and powder
    cocaine offenders were convicted under mandatory minimums at
    virtually equal rates, about 80 percent of the defendants, even
    though the median drug rate for powder cocaine offenses was
    7,000 grams compared to 52 grams for crack cocaine offenses.
        In fiscal year 2008 only 14.3 percent of crack cocaine
    offenders, compared to 42.4 percent of powder cocaine
    offenders, received relief from the statutory mandatory minimum
    penalties pursuant to statutory and guidelines safety valve
    provisions.
        This is partly attributable to differences in criminal
    history and weapon involvement. In fiscal year 2008, 28.1
    percent of crack cocaine offenders, compared to 16.9 percent of
    powder cocaine offenders, either received a guideline weapon
    enhancement or were convicted pursuant to Title 18 U.S. Code
    Section 924(c).
        Crack cocaine offenders generally have more extensive
    criminal history, and 77.8 percent of crack cocaine offenders
    were ineligible for the safety valve, because they were in a
    criminal history category higher than criminal history category
    one, compared to 40 percent of powder cocaine offenders.
        Also, with regards to the mitigating role adjustment that
    is made by the courts, it was approximately 5.1 percent for
    crack cocaine offenders as opposed to 20 percent for powder
    cocaine offenders.
        The sentencing disparity, as has also been noted, has been
    the subject of recent Supreme Court case law. In Kimbrough v.
    United States, the court relied on the commission's conclusion
    that the disparity between the treatment of crack cocaine and
    powder cocaine offenses fails to meet the sentencing objectives
    set forth by Congress in both the Sentencing Reform Act and the
    1986 Anti-Drug Abuse Act in holding that a sentencing court may
    consider the disparity when determining an appropriate sentence
    in a crack cocaine case.
        In the Spears case the court held that under Kimbrough, a
    sentencing court may vary from the crack cocaine guidelines
    based on policy disagreements and may substitute its own drug
    quantity ratio.
        With regards to the operation of the commission's
    retroactive application of the 2007 crack cocaine amendment in
    the 1 year since the amendment went into effect and was made
    retro active, the commission has received documentation on
    approximately 19,239 sentence reduction motions.
        In those, 13,408--approximately 69.6 percent of them--were
    granted, and the average reduction was 24 months, from 140
    months to 116 months.
        Five thousand eight hundred thirty-one--about 30.3
    percent--have been denied. Of these, some were denied because
    the conviction did not involve crack cocaine or the defendant
    was otherwise not eligible, most often because the statutory
    mandatory minimum applied or a career offender or on career
    offender status and/or were denied on the merits for other
    reasons.
        In closing, I must say that the commission continues to
    believe that there is no justification for the current
    statutory penalty scheme for powder cocaine and crack cocaine
    offenses and is of the view that any comprehensive solution
    requires revision of the current statutory penalties by
    Congress.
        The commission remains committed to its 2002 recommendation
    that statutory drug quantity ratios should be no greater than
    20 to 1 and recommends to Congress that Congress increase the
    5-year and 10-year statutory mandatory minimum threshold
    quantities for crack cocaine offenses, repeal the mandatory
    minimum penalty for simple possession of crack cocaine, and
    reject addressing the 100 to 1 drug quantity ratio by
    decreasing the 5-year and 10-year mandatory minimum threshold
    quantities for powder cocaine offenses.
        The commission believes that the Federal sentencing
    guidelines continue to provide the best mechanism for achieving
    all of the principles of the Sentencing Reform Act of 1984 and
    recommends the congressional concerns about the harms
    associated with crack cocaine are best captured through the
    sentencing guidelines system.
        The bipartisan U.S. Sentencing Commission continues to
    offer its help, support and services to all--the Congress, the
    executive, the judicial branches and anyone else interested on
    the subject, anyone who is interested in this important issue,
    and would request that any congressional action including
    emergency amendment authority.
        On behalf of the commission, I again thank you, Chairman
    Scott and Members of the Committee, for holding this very
    important hearing on this subject that the commission obviously
    feels is important and has felt so for many years.
        Thank you, sir. And I did go over my time, and I guess life
    tenure doesn't help here, and I am sorry. [Laughter.]
        [The prepared statement of Judge Hinojosa follows:]
            Prepared Statement of the Honorable Ricardo H. Hinojosa

                                   __________
        Mr. Scott. Mr. Patterson?

    TESTIMONY OF SCOTT PATTERSON, DISTRICT ATTORNEY, EASTON, MD, ON
    BEHALF OF JOSEPH I. CASSILY, PRESIDENT OF THE NATIONAL DISTRICT
                 ATTORNEYS ASSOCIATION, ALEXANDRIA, VA

        Mr. Patterson. Thank you, sir. Mr. Chairman, Members of the
    Committee, my name is Scott Patterson. I am here on the behalf
    of Joe Cassilly, who is the president of the National District
    Attorneys Association, who regrettably could not be here, but
    has appeared before. He could not because of a conflict in his
    schedule.
        I am here in two capacities--one, as an elected prosecutor
    from my home state of Maryland, but also as a member of the
    board of directors of the National District Attorneys
    Association and filling in and presenting our position in that
    regard.
        The National District Attorneys Association is the oldest
    and largest organization representing state and local
    prosecutors. And to Mr. Cassilly's comments, which I am only
    going to briefly touch upon in the interest of time, we
    attached a resolution, which was adopted by the National
    District Attorneys Association back last summer, I believe,
    regarding the issue that is before this Committee and before
    the Congress concerning the sentencing disparity between crack
    and powder cocaine.
        The NDAA agrees that some adjustment is warranted, not just
    that the 100 to 1 disparity cannot be justified by empirical
    data. We also believe that the proposed one to one realignment
    for penalties for crack versus powder cocaine also lacks any
    empirical or clinical evidence.
        A random adjustment would also, we believe, have severe
    negative consequences as to the effects of the Nation's
    prosecutors to remove the destructive effects of crack and
    violence from our communities.
        As has Mr. Cassilly, I have been a prosecutor for over 30
    years, almost 33 years now. It has been my practice, both in
    the small jurisdiction that I am currently the elected
    prosecutor in and large jurisdictions that I have served in as
    an assistant in, that our work has been active and successful,
    both in task force within Maryland and also cooperating with
    Federal agencies and prosecutors from the office of the United
    States attorney for the state of Maryland.
        We believe that this is a problem that affects not only the
    Federal jurisdiction, and as the NDAAA we really do not
    represent Federal prosecutors, but as the spillover to local
    prosecutors, depending on what happens with this legislation.
        We believe this is an area that must be addressed, and we
    are glad that it is being addressed and looked at to handle the
    sentencing disparity. We do cooperate, and we do submit cases
    to Federal prosecutors to help with because of the sentencing
    guidelines.
        We understand that in the state of Maryland, at least my
    own experience has been that simple possessors of quantities,
    even of five grams of crack cocaine, don't get the type of
    sentences, perhaps, that they received in the Federal system.
        A lot of the emphasis in the state of Maryland is now on
    emphasizing treatment as well as punishment for offenders, that
    the major issues concerning traffickers and the violence and
    the communities that occur as a result of the trafficking in
    crack cocaine is going to be an ongoing problem, no matter what
    the penalty aspects are of any legislation that comes out of
    the United States Congress concerning the disparity and/or
    Federal mandatory sentences.
        The statement issued by Mr. Cassilly notes that on the
    issue of the racial disparity, if you will, concerning those
    that are prosecuted and sentenced under the drug laws also is
    as a result of the effect on their communities and the crime
    and violence that are occurring in those neighborhoods of the
    minorities and how they have come forth and ask for help and
    asked for the strong prosecutions so that they can have safe
    neighborhoods.
        At any rate I commend the Committee and the Congress for
    dealing with this issue, and I direct the details of Mr.
    Cassilly's position to his paper. Thank you very much for
    allowing us to appear here today, sir.
        [The prepared statement of Mr. Cassilly follows:]
                    Prepared Statement of Joseph I. Cassilly
        I am testifying on behalf of the National District Attorneys
    Association, the oldest and largest organization representing State and
    local prosecutors. I have attached a resolution adopted by NDAA
    regarding the sentencing disparity between crack and powder cocaine.
    NDAA agrees that some adjustment is warranted, but just as the 100:1
    disparity cannot be justified by empirical data we believe that the
    proposed 1:1 realignment of Federal penalties for crack versus powder
    cocaine also lacks any empirical or clinical evidence. A random
    adjustment will have severe negative consequences on the efforts of
    this nation's prosecutors to remove the destructive effects of crack
    and violence from our communities.
        I have been a criminal prosecutor for over 31 years. My prosecutors
    and I work on one of the most active and successful task forces in
    Maryland and cooperate with federal agents and prosecutors from the
    Office of the U. S. Attorney for Maryland.
        The cooperation of Federal and State prosecutors and law
    enforcement that has developed over the years is due in large part to
    the interplay of Federal and State laws. Maryland state statutes
    differentiate sentences between crack and powder cocaine offenders on a
    9:1 ratio based on the amount that would indicate a major dealer. There
    is not in reality a 100:1 difference in the sentences given to crack
    versus powder offenders. A DOJ report states, ``A facial comparison of
    the guideline ranges for equal amounts of crack and powder cocaine
    reveals that crack penalties range from 6.3 times greater to
    approximately equal to powder sentences.''
        In recent years local prosecutors have brought hundreds of large
    quantity dealers for Federal prosecution, primarily because of the
    discretion of Federal prosecutors in dealing with these cases. This
    discretion allows for pleas to lesser amounts of cocaine or the option
    of not seeking sentence enhancements. The end result is that the
    majority of these cases are ultimately resolved by a guilty plea to a
    sentence below the statutory amount.
        The practical effect of guilty pleas is that serious violent
    criminals are immediately removed from our communities, they spend less
    time free on bail or in pre-trial detention, civilian witnesses are not
    needed for trial or sentencing hearings and are therefore not subject
    to threats and intimidation and undercover officers are not called as
    witnesses: all of which would happen if we were forced to proceed with
    these cases in courts. Yet meaningful sentences are imposed, which
    punish the offender but also protect the community. The plea agreements
    often call for testimony against higher ups in the crack organization.
    It is critical that Federal sentences for serious crack dealers remain
    stricter than State laws if this coordinated interaction is to
    continue.
        Let me dispel myths about controlled substance prosecutions that
    are propagated by those who would de-criminalize the devastation caused
    by illegal drugs.

    1.  There is a difference between the affect of crack versus powder
    cocaine on the user \1\
    ---------------------------------------------------------------------------
        \1\ Most of the following comments are taken from reports of the
    United States Sentencing Commission or of the Department of Justice.

        In a study entitled ``Crack Cocaine and Cocaine Hydrochloride: Are
    the Differences Myth or Reality?'' by D. K. Hatsukami and M.W.
    Fischman, Department of Psychiatry, Division of Neurosciences,
    ---------------------------------------------------------------------------
    University of Minnesota, Minneapolis it is stated,

            ``The physiological and psychoactive effects of cocaine are
            similar regardless of whether it is in the form of cocaine
            hydrochloride or crack cocaine (cocaine base). However,
            evidence exists showing a greater abuse liability, greater
            propensity for dependence, and more severe consequences when
            cocaine is smoked (cocaine-base) . . . compared with intranasal
            use (cocaine hydrochloride). The crucial variables appear to be
            the immediacy, duration, and magnitude of cocaine's effect, as
            well as the frequency and amount of cocaine used rather than
            the form of the cocaine.''

        Smoked cocaine results in the quickest onset and fastest
    penetration. Generally, smoked cocaine reaches the brain within 20
    seconds; the effects last for about 30 minutes, at which time the user
    to avoid the effects of a ``crash'' re-uses. The Drug Enforcement
    Administration's (DEA) intelligence indicates that a crack user is
    likely to consume anywhere from 3.3 to 16.5 grams of crack a week, or
    between 13.2 grams and 66 grams per month.
        Intranasally administered cocaine has a slower onset. The maximum
    psychotropic effects are felt within 20 minutes and the maximum
    physiological effects within 40 minutes. The effects from intranasally
    administered cocaine usually last for about 60 minutes after the peak
    effects are attained. A typical user snorts between two and three lines
    at a time and consumes about 2 grams per month.
        Using these amounts, the cost per user per month for crack cocaine
    is between $1,300 and $6,600 as compared to a cost for powder cocaine
    of $200 per month; a 6.5 to 33:1 ratio in cost.

    2.  There is a difference in the associated crimes and the effect on
    the community caused by crack as opposed to powder cocaine.

        The inability to legitimately generate the large amount of money
    needed by a crack addict leads to a high involvement in crimes that can
    produce ready cash such as robbery and prostitution. Studies show crack
    cocaine use is more associated with systemic violence than powder
    cocaine use. One study found that the most prevalent form of violence
    related to crack cocaine abuse was aggravated assault. In addition, a
    1998 study identified crack as the drug most closely linked to trends
    in homicide rates. Furthermore, crack is much more associated with
    weapons use than is powder cocaine: in FY 2000, weapons were involved
    in more than twice as many crack convictions as powder.
        One of the best-documented links between increased crime and
    cocaine abuse is the link between crack use and prostitution. In this
    study, 86.7% of women surveyed were not involved in prostitution in the
    year before starting crack use; one-third become involved in
    prostitution in the year after they began use. Women who were already
    involved in prostitution dramatically increased their involvement after
    starting to use crack, with rates nearly four times higher than before
    beginning crack use.
        One complaint about the sentencing disparity is that it
    discriminates against black crack dealers versus white powder dealers.
    Unfortunately, what most discriminates against our black citizens is
    the violence, degradation and community collapse that is associated
    with crack use and crack dealers and their organizations. It is the
    black homeowners who most earnestly plead with me, as a prosecutor, for
    strict enforcement and long prison sentences for crack offenders. The
    stop snitching video was made by black crack dealers in Baltimore to
    threaten black citizens with retaliation and death for fighting the
    dealers. A black family of five was killed by a fire bomb which was
    thrown into their home at the direction of crack dealers because they
    were reporting crack dealers on the street in front of their house.
    Those areas with the highest violent crime rates are the same areas
    with the highest crack cocaine use.
        Congress should consider that many persons serving federal crack
    sentences have received consideration from the prosecutors in return
    for a guilty plea. (i.e. pleas to lesser amounts of cocaine or the
    option of not seeking sentence enhancements) Many criminals who could
    be affected by a retroactive application of a new sentencing scheme
    have already received the benefits of lower sentences and would get a
    second reduction. New sentencing hearings would mean that citizens from
    the communities that crack dealers once ruined would have to come
    forward to keep the sentences from being cut.
        The nation's prosecutors urge Congress to adopt a sentencing scheme
    with regard to the destruction caused by crack cocaine to our
    communities. If there is a need to reduce the disparity between crack
    and powder cocaine then perhaps the solution is to increase sentences
    for powder cocaine.
                                   __________

        Mr. Scott. Thank you.

            TESTIMONY OF WILLIE MAYS AIKENS, KANSAS CITY, MO

        Mr. Aikens. Thank you, Chairman Scott and Members of the
    Subcommittee, for inviting me to testify before you today.
        My name is William Aikens, and I am here to tell my story
    about the direct effect of crack cocaine on----
        Mr. Scott. Mr. Aikens, can you make sure your microphone is
    on, or bring it a little closer to you?
        Mr. Aikens. The story I am going to tell you today began
    when I was drafted by the California Angels after my first year
    in college. I played 3 years in the minor league system before
    I was promoted to the major leagues. I had my first taste of
    the big show in 1977. I also had my first taste of powder
    cocaine that same year.
        This is my first encounter with drugs. I was traded to the
    Kansas City Royals in 1979 and played in the World Series in
    1980, where I hit two home runs in game one and game four of
    the series, a record that still stands.
        But I was also using drugs on a regular basis, as were many
    other major league baseball players at that time. In 1983 I was
    convicted on misdemeanor drug charges along with three other
    Royals players, and we were sentenced to 3 months in prison. We
    were the first active major leaguers to see jail time for
    drugs.
        After that I was traded to the Toronto Blue Jays, and my
    baseball career went downhill. I ended up playing in Mexico for
    the next 6 years, where I started back using drugs regularly. I
    retired from baseball in 1990 and return to Kansas City, where
    I became a recluse in my own home, going out mainly to buy
    cocaine.
        I have started smoking cocaine in Mexico, so I knew all the
    ins and outs of preparing the drug. I went through two bank
    accounts of over $300,000 and didn't think twice about what I
    was doing. I was living a destructive lifestyle and was
    enjoying every bit of it.
        Finally, in 1994 all of this came to a stop. One day out of
    nowhere a woman arrived at my house in a car, looking for
    someone to get her drugs. It turned out that she was an
    undercover officer for the Kansas City Police Department, which
    had started the investigation on me because of anonymous
    telephone calls.
        Over the next several weeks, she accompanied me to my
    supplier's house to purchase powder cocaine, and each time she
    asked me to cook it into rock cocaine or crack, which I did.
    Four purchases of crack cocaine put me in the mandatory minimum
    10-year guideline. The Kansas City police turn my case over to
    the Federal authorities for prosecution to make sure I got the
    longest sentence possible.
        I took my case to trial and lost. I received a sentence of
    20 years and 8 months, the highest sentence that the jurors
    could give me under the sentencing guidelines. A similar amount
    of powder cocaine would have resulted in a sentence on drug
    charges of, at most, 27 months.
        During my 14 years in prison, I rededicated my life to
    Jesus Christ. I came to realize that being taken off the
    streets at that time saved my life. It didn't take 14 years to
    change me, but it did take being incarcerated to leave that
    lifestyle behind.
        While I was in prison, I completed three different drug
    rehabilitation programs, which help me realize that I have an
    addiction problem. I came in contact with so many other people
    that had the same problem I had.
        I also came in contact with a lot of people that had life
    sentences because they were convicted of selling crack cocaine.
    Many of them were first-time offenders and no criminal record
    and had no violence in their case. My case is very sad, but
    theirs were sadder. These people were never going home.
        After I spent 14 years of my life in prison, Congress
    finally allowed the Sentencing Commission to reduce the crack
    cocaine guidelines. I benefited from this change in law, and
    the courts gave me almost 5 years off my sentence. I got out of
    prison last June. My original release date was 2012.
        Since my release from prison, I have developed a
    relationship with my daughters, who were small children when I
    went to prison. I have found a job working construction in
    Kansas City, and I am in the process of getting back into
    professional baseball.
        I have been clean and sober for 15 years, and I have a
    strong spiritual foundation. I am writing a book. I am doing
    speaking engagements in and around the Kansas City area about
    the dangers of drugs and alcohol. God has truly blessed my
    life.
        In closing, I would like to add that I didn't come to
    Washington, DC, to testify for myself. I came for all the
    people I left behind in prison. I made a promise to those
    people that if God allowed me to leave prison before them, then
    I would do everything in my power to help them. That is the
    main reason why I am sitting in this chair today.
        We have so many sad cases of drug addicts being locked up,
    and the key is then thrown away. We have so many families that
    are suffering right now because a son, a father, a mother, a
    brother or a sister will never come home from prison.
        Look at me and look at the progress that I have made in my
    life, because I was given another chance to live my life as a
    free man. I believe many more people would do the same thing,
    if they are given a chance.
        I am praying that this will be the last time this
    Subcommittee will meet regarding these unfair laws. These
    mandatory minimum laws and the crack versus powder cocaine
    disparity need to be eliminated. Cocaine is cocaine, regardless
    of the form it comes in.
        Thank you for hearing me.
        [The prepared statement of Mr. Aikens follows:]
                    Prepared Statement of Willie Mays Aikens

                                   __________

        Mr. Scott. Thank you very much, Mr. Aikens. And I
    understand that you will have to leave shortly, so when you
    have to leave, we will understand.
        Mr. Aikens. Okay.
        Mr. Scott. Mr. Bushman?

     TESTIMONY OF BOB BUSHMAN, VICE PRESIDENT, NATIONAL NARCOTICS
             OFFICERS ASSOCIATION COALITION, WASHINGTON, DC

        Mr. Bushman. Thank you, Chairman Scott. I would like to
    thank you for inviting me to share the views of the National
    Narcotics Officers Coalition.
        My name is Bob Bushman. I have been a law enforcement
    officer for 30 years. I am vice president of the NNOAC, which
    represents 44 state associations with more than 69,000 law
    enforcement officers nationwide.
        I want to thank the Subcommittee for working with us on
    critical public safety issues, including passing both the Byrne
    Justice Reauthorization Second Chance Act last year.
        Technically, what our NNOAC members do is we enforce laws
    against crime and illegal drugs legislative bodies like
    Congress put in place. In human terms, as we speak, there are
    police officers, sheriffs, deputies, state and Federal agents
    working to protect our communities from predators, who greatly
    profit by selling and distributing poisonous to our kids.
        Mr. Scott. Mr. Bushman, there is something wrong with your
    mic. If you could use Mr. Aiken's mic and get it to work.
        Mr. Bushman. Is that better? Be glad to. Okay. How is that?
    All right.
        These predators purposely harm not only the user, but the
    user's family and the communities as well, and in most
    instances our members are the only ones that stand in their
    way.
        The devastation I saw it in the 1980's and 1990's as a cop
    working crack cases was unlike anything we have ever seen. The
    crack trade was responsible for dramatic increases in violent
    crime in our communities. Drive-by shootings, gang wars and
    home invasions became common.
        Citizens demanded tough measures to bring the situation
    under control, and the current laws related to sentencing of
    crack offenders were a direct response to the desperate pleas
    of the law-abiding citizens and the families.
        Yes, we continue to have a significant drug problem in this
    problem. We know that. But crack and cocaine use has declined
    in the past 25 years due in part, we believe, to tough criminal
    sanctions that both prevent drug use and compel cooperation of
    individuals to take down drug rings.
        Let me be clear. We understand the sensitivities the issue
    of the 100 to 1 crack-powder disparity. But we need you, our
    Members of Congress, to understand that we law enforcement
    officers want you to understand what we as law enforcement
    officers see and experience every day during our careers and
    understand that we are dedicated professionals, who work hard
    to protect our citizens, no matter who they are, where they
    live, or what they believe.
        We are caught in the middle on this issue. It is difficult
    to protect the citizens of the drug-infested, high-crime areas,
    who need us the most, when we cannot rid those neighborhoods of
    the ones who abuse them the most, the drug dealers and gangs.
        We are criticized by some for not doing enough and by
    others for being too aggressive in our prosecution of drug
    violators. Tough drug sentences are a very effective way of
    getting predators off the streets, the people who do the most
    damage to our communities.
        Many violent crimes are committed by people who are under
    the influence of crack. Domestic violence and child abuse are
    common among the crack-riddled neighborhoods.
        I spent money out of my own pocket to buy kids meals when
    we have gone into crack houses, because they haven't had enough
    to eat. I used to keep a bag of diapers in my car, because
    often we would end up changing diapers of kids, who were being
    neglected and living in filthy conditions in some of these
    homes.
        We have been asked about our views on legislative proposals
    to reduce the crack-powder disparity. While we believe that the
    existing law has been a valuable law and reducing the impact of
    crack on communities, we also realize that it has had a
    negative impact on some people's perception of law enforcement.
        So while we agree that it is appropriate for Congress to
    review the law, we also believe that Congress should consider a
    solution to narrow the disparity between crack and cocaine
    powder that includes lowering the threshold quantity for powder
    cocaine.
        We do not believe that the best approach is to dramatically
    increase the threshold amount of crack that triggers the
    minimum penalty.
        Why should we continue to maintain tougher sentences for
    crack down for coke powder? Smoking crack leads to a sudden,
    short-lived high, causing an intense immediate desire for more
    of it.
        Just last month the director of NIDA, Dr. Nora Volkow,
    testified before a Senate Judiciary Committee that, ``research
    consistently shows that the form of a drug is not the crucial
    variable. Rather it is the route of administration that
    accounts for the differences in its behavioral effects.''
        While science proves that smoking crack produces different
    effects than methods of ingesting cocaine powder, the violence
    associated with the crack trade is more prevalent than that
    associated with the powder coke trade. We have seen this happen
    in community after community.
        Part of it has to do with the turf wars, the drug dealers
    and urban gangs fighting for control of an area and the
    customers that contains. Although much of the violence is
    dealer on dealer, innocent bystanders and sometimes even entire
    neighborhoods are often caught in the crossfire.
        It is difficult to protect our communities if we can't
    remove those who are responsible for the crime and the
    violence.
        Selling crack is more profitable than selling powder coke.
    If crack cocaine penalties are made equal to that of powder,
    there will be more incentive to sell crack and to make bigger
    profits.
        While it is true that crack and powder have the same
    physiological effect on the brain, the negative impact on
    public safety due to the violence associated with the crack
    cocaine trade alone justifies difference in penalties.
        We realize that we can't arrest our way out of the drug
    problem. Prevention education and treatment programs must be
    supported to help people avoid the criminal justice system in
    the first place. But those who do become users and addicts need
    help. And in many cases the criminal justice system is the
    gateway to their recovery.
        The NNOAC strongly supports drug court programs. We believe
    they should be strengthened and expanded to mitigate the
    problems caused by drugs in our communities.
        But the threat of arrest, prosecution and imprisonment are
    important components in deterring drug use, reducing crime, and
    protecting our citizens from falling victim to violent and
    predatory criminals.
        I think you again, Mr. Chairman, for the opportunity to
    share our views. We all want the same thing. We want to provide
    safe and stable neighborhoods. And we look forward to working
    with you on this and the other important issues. Thank you.
        [The prepared statement of Mr. Bushman follows:]
                       Prepared Statement of Bob Bushman

                                   __________

        Mr. Scott. Thank you.
        Ms. Coleman-Davis?

      TESTIMONY OF VERONICA F. COLEMAN-DAVIS, PRESIDENT AND CEO,
           NATIONAL INSTITUTE OF LAW AND EQUITY, MEMPHIS, TN

        Ms. Coleman-Davis. Thank you, Chairman Scott and
    distinguished Members of this Subcommittee. Thank you for
    giving me the opportunity to appear before you today to share
    my views.
        I recognize that this Committee has received substantial
    data and anecdotal information about the impact of the
    sentencing disparity between crack and powder cocaine. But not
    much has been said about how devastating this disparity has
    been on generations of children and the African-American
    community, many of whom now view incarceration as a normative
    rite of passage.
        I hope that through these hearings we will begin to
    understand that we not only need to end the disparate
    sentences, but we also need to ensure some means of prevention,
    intervention and healing for those children, who are also
    victims of this disparity.
        In my career I have worked with many law enforcement
    officers who are dedicated to protecting and serving their
    community. They want to do their job. And if they are measured
    by the numbers of arrests they make, they will make a lot of
    arrests.
        I have witnessed drug stings that were solely focused on
    housing projects, where sales were to people driving up in cars
    from outside that community. And arresting low-level street
    dealers selling crack is like shooting fish in a barrel.
        On the other hand, going after major sellers and users of
    powder cocaine often meant taking the time to develop leads in
    order to obtain search warrants for upscale homes and then face
    long, drawn-out court battles with high-paid attorneys, which
    made lower arrest stats.
        The outcome of those law enforcement practices clearly
    meant that more Blacks were going to be arrested than Whites.
        The joint local and Federal task forces also had the added
    advantage and leverage of giving the low-level dealer of choice
    between state and Federal prosecution, if he or she was willing
    to lead them to the kingpin, or if they could give us someone
    above them in the food chain, then they would likely receive
    consideration in their sentence. Most could not. And first
    offenders with five grams of crack were sentenced to 5 years in
    prison instead of a lesser sentence perhaps in the state
    system.
        As U.S. attorney and chief law enforcement officer for over
    22 counties, I worked with all of the law enforcement
    agencies--local, state and Federal--to ensure that our limited
    Federal resources were focused on the most pressing problems in
    our communities.
        When I recognized that we were spending considerable
    attorney resources on street drug crimes and not the serious
    and major drug traffickers that were intended targets under the
    Federal Anti-Drug Abuse Act of 1986 and 1988, I reviewed the
    issues with my chief assistant United States attorney of our
    drug task force, focused some of our judges and our district's
    DEA special agent in charge, and made the decision that our
    office would not take five-gram crack cases that were
    prosecutable in state court.
        We increased our minimum prosecution guidelines in crack
    cases to 50 grams and focused our efforts on major drug
    dealers, including cartel. We were also very mindful that even
    50 grams was insignificant compared to the thousands of grams
    that were coming across our border from Mexico.
        And yes, I was challenged by one reporter of not
    prosecuting as many cases as my predecessors. I pointed out to
    him that the number of defendants on a single indictment
    demonstrated that we were reaching the organizations, as
    opposed to pursuing 10 indictments against low-level
    individuals.
        I firmly believe that it is not the duty of a prosecutor to
    simply obtain convictions by the numbers, but to do justice. I
    was never called soft on crime, and I am the first to say that
    people who commit crimes should be punished for their criminal
    activity, but bringing criminals to the bar of justice also
    means treating them fairly and equally.
        Therefore, I do not believe that the average citizen, given
    what we know today, would agree that there is equal justice in
    sending one person to prison for 5 years for possessing five
    grams of crack cocaine and another receiving the same sentence
    for possessing 500 grams of powder.
        It is now time to correct a well-known and understood
    mistake in our system of justice. After more than 20 years,
    multiple studies and recommendations from the United States
    Sentencing Commission, and at least two generations of families
    and children torn by systemic imposition of imprisonment for
    having one-hundredth the amount of cocaine than their White
    counterparts, it is surely not only not good policy, but it is
    surely not only good policy, but it is good politics to correct
    this injustice. This is what we would say as prosecutors that
    truth dictate and justice demands.
        Thank you for conducting these hearings and allowing me to
    speak to this important issue.
        [The prepared statement of Ms. Coleman-Davis follows:]
                Prepared Statement of Veronica F. Coleman-Davis

                                   __________

        Mr. Scott. Thank you.
        Mr. Mauer?

            TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR OF
                 THE SENTENCING PROJECT, WASHINGTON, DC

        Mr. Mauer. Sure. Chairman Scott, I am aware I don't have
    life tenure. I will try to stick to the time limit and close
    this out.
        Let me just say--you have my written testimony. You know,
    obviously, we are not here to debate whether drug abuse is a
    problem, whether it is crack cocaine or powder cocaine or other
    hard drugs.
        We are here to talk about what is fair and what is
    effective in public policy, both in how to have a better impact
    on the problem of substance abuse and to communicate that to
    the public.
        When we look at the effectiveness of our current policies,
    I don't think we have much to recommend them at the Federal
    level. Federal drug policies historically were supposed to go
    after high-level drug importers, high-level cases. When we set
    the threshold at five grams of possession, that clearly flies
    in the face of what those objectives are.
        The data from the Sentencing Commission have shown us over
    many years that roughly 60 percent of the crack cocaine cases
    are in the lower levels of the drug trade. Yes, these are not
    necessarily all first-time cases of five grams of possession,
    but they are certainly not the importers, the high-level drug
    operators.
        If we look at questions of cost effectiveness,
    conservatively speaking it costs about $25,000 a year to
    incarcerate someone in Federal prisons, so every time a judge
    is required to impose a mandatory 5-year sentence, that is
    $125,000 of taxpayer resources.
        We already have many people in Federal prison with
    untreated drug problems. You know, if we care about resources,
    if we care about addressing the problem, dealing with these
    low-level cases in Federal prisons does not seem to be a very
    wise strategy.
        Secondly, I think we have seen historically the crack
    penalties have inappropriately been premised on an exaggerated
    sense of violence associated with crack. Is violence associated
    with crack? Yes, it is. Is the crack trade same as with powder?
        And if we look back 100 years, any time a new drug comes
    along, it is not at all unusual that turf battles erupt over
    that. We have an epidemic of violence, as it is sometimes
    called. Most of this in regard to crack took place in the late
    1980's, when crack first made its appearance in many urban
    areas.
        There was some belief at the time it was due to the drug
    itself. We now know, of course, these are battles over turf and
    young people in particular having easy access to guns, all of
    that coming together.
        We also know that the majority of crack cases do not
    involve violence in terms of offenders who actually use a
    weapon. As you have noted, only 3 percent of the crack cases, 1
    percent of the powder cases, involve actually using a weapon.
        I don't know anyone who would suggest we should not
    prosecute people when they are engaging in violence along with
    a drug offense, but we have no shortage of tools available to
    do that through the sentencing guidelines or through additional
    charges brought against them.
        And in effect what we have done with the crack cocaine
    penalties is to treat all crack offenders as if they were
    engaging in violence, rather than allowing judges to determine
    which cases required additional penalties because of the
    violence associated with that. That doesn't seem like it should
    be a terribly difficult thing to do. That is what judges do
    every day.
        We also see in terms of the impact of what crack cocaine
    laws do in terms of law enforcement and the court--as we know,
    the law has to be fair. It has to be perceived as fair. And I
    think it is reasonable to say in many communities of color, the
    crack cocaine laws are not perceived to be fair.
        Most Americans don't appreciate, as most people in this
    room do, the distinction between Federal and state laws. And
    when there is a perception that the laws are unjust, people are
    not making the distinction.
        And you have many leaders in law enforcement and judges and
    others, who will make the argument that their ability to gain
    cooperation from the community is harmed.
        Their ability to have people convict in appropriate cases
    when serving on jury may be harmed because of this widespread
    perception of unfairness that is increasingly prevalent, so I
    think if we think of public safety outcomes, we need to be
    concerned about this.
        Finally, just a word about the equalization issue. I think
    there is growing sentiment that the ratio of 100 to 1 is
    clearly inappropriate, and many people supporting the one to
    one approach. Just in terms of how that should be established,
    I don't think there is anything on the record that shows that
    the penalties for powder cocaine are not sufficiently serious
    right now, or that they should be adjusted.
        We have seen no documentation of this. The Sentencing
    Commission has not produced any evidence of problems with this,
    so the question is not, should there be penalties associated
    with these various forms of the drug? The question is, how much
    punishment is sufficient, but not overly punitive, to
    accomplish the goals of sentencing, to accomplish the goals of
    public safety?
        Let me just close by saying we are at a time of evolution
    on all these issues right now. The Supreme Court in the Booker
    and Kimbrough cases has clearly opened up new ways of thinking
    about these issues, along with the Sentencing Commission's
    guideline changes.
        It seems to me that it is a very appropriate moment for us
    to move ahead to allow judges to be judges, to use discretion
    appropriately. I have great confidence in what they can do, and
    I think we will have better public safety outcomes if we move
    to change these policies. Thank you.
        [The prepared statement of Mr. Mauer follows:]
                        Prepared Statement of Marc Mauer

                                   __________

        Mr. Scott. Thank you.
        And I want to thank all of our witnesses for their
    testimony and try to get in a few questions before we have to
    close the hearing.
        First, Judge Hinojosa, a lot has been made about the
    difference in crack and powder in terms of violence, use of
    weapons in that kind of thing. Can the sentencing guidelines
    incorporate on an individualized basis whether or not a weapon
    was used, whether or not there was violence, whether or not you
    were abusing your children in the process of using drugs? Can
    all of that be incorporated into the sentencing guidelines for
    an individual case?
        Judge Hinojosa. That is definitely true, Chairman Scott.
    And I will say that presently the guidelines have some of these
    adjustments. There is an enhancement for using a weapon during
    a drug trafficking crime.
        And we certainly have the enhancements for the use of a
    minor that would apply in any criminal violation, as well as
    the role in the offense with regards to either a mitigatory or
    an enhancement role.
        And many of the opportunities are within the guidelines
    system already, and certainly they could be provided with
    regards to some of the other matters that you have mentioned
    also, sir.
        Mr. Scott. And if in fact violence is more associated with
    crack and weapons are more associated with crack, then on
    average, if you are individualizing your punishment, to the
    extent that that is true they would get more serious
    punishment.
        Judge Hinojosa. That is true. And also the criminal history
    categories are also taken care within the guidelines, because
    if you have a higher criminal history category, obviously that
    will increase your suggested guideline sentence.
        I will also indicate that where that does become a problem
    is with the safety valve with regards to any mandatory minimum
    policy of the Congress in that anybody who has more than one
    criminal history point cannot qualify for safety valve.
        Mr. Scott. Mr. Breuer, the punishment enhancements in the
    code are based on the weight of the entire conspiracy, so some
    of the minor role in a large conspiracy would get a much more
    serious punishment than someone who left the conspiracy they
    have very little to do with, actually was dealing and left.
        What can I do about the so-called girlfriend problem? We
    have someone with a very minor role being judged as a serious
    criminal by virtue of the weight of the entire conspiracy.
        Mr. Breuer. Well, Mr. Chairman, what we are arguing, of
    course, is we now have a sentencing working group under the
    direction of the deputy attorney general, where we are looking
    at all of these issues. And the very issue you are identifying
    is the one that we are thinking very hard about.
        And that is to really individualize as best we can through
    enhancements what the appropriate role is. Our goal is that
    those who are the most culpable, those are the most responsible
    are those that get the longest of the hardest punishment.
        We want to be away from a construct where we are forced to
    give harder sentences than necessary to people who have minor
    roles. That is the goal, that is what we would like.
        Mr. Scott. And one of the problems with that, obviously, is
    the imposition of mandatory minimums, which have been studied
    and found to be discriminatory--racially discriminatory--a
    waste of taxpayers' money, often violate common sense.
        You aren't insisting that we maintain the mandatory
    minimums in the law while you study it, or you?
        Mr. Breuer. What we are doing, Mr. Chairman, is we are
    considering all the issues, so we are absolutely not demanding
    that mandatory minimums will be part of any new construct.
    Frankly, Mr. Chairman, we are also hearing those who are
    proponents of it. We want to have a comprehensive approach, so
    really at this point we are all the different points.
        Mr. Scott. But as you consider it, you are not taking a
    position on what we would do legislatively to mandatory
    minimums.
        Mr. Breuer. At this point we are not.
        Mr. Scott. Thank you.
        Mr. Bushman, you have suggested that tougher sentences may
    have been responsible for lower drug use. Did I understand you
    right? Do you have any studies that show that drug use has been
    lowered in those areas was more severe penalties?
        Mr. Bushman. Well, I can tell you that based on my personal
    experience, when we been able to prosecute and remove
    organizations and high-level dealers from the neighborhoods,
    the amount of violence has gone down, the numbers of shootings
    have gone down, the numbers of murders and the communities that
    were running rampant with a crack dealing have gone down.
        Mr. Scott. Do you have any studies to show that the longer
    sentences, not the fact that you call people and incarcerated
    them, but the longer sentences were responsible for the
    reduction in crime?
        Mr. Bushman. I have seen some, but I don't have any here to
    cite for your.
        Mr. Scott. Okay, if you could provide those for the record.
        Mr. Mauer, do you have any studies that show that the
    longer sentences actually reduce crime?
        Mr. Mauer. I think most of the deterrence literature in
    criminology suggests that any deterrent effect the system has,
    which it does, is more based on the certainty rather than the
    severity of punishment. In other words if we can increase the
    prospects that a given person will be apprehended, then at
    least some people will be deterred from committing crimes.
        But merely increasing the amount of punishment we impose
    for people who don't expect to be caught, and unfortunately
    most people don't expect to be caught, has relatively little
    effect on adding to deterrence.
        Mr. Scott. And, Ms. Coleman-Davis, you suggested that you
    recommended stopping the sweep of low-level criminals. If you
    arrest people who are just the street dealers, what does that
    do to the general amount of drugs consumed in the neighborhood?
        Ms. Coleman-Davis. I wasn't suggesting that we stop sweeps
    or stop arresting low-level dealers. I was simply pointing out
    that law enforcement resources at both the state and Federal
    levels need to really focus on where the drug problems are all
    over its community, not just in the low-income communities,
    which are basically very easy pickings.
        People have information pretty much like in Mr. Aikens'
    case. If they want to make the cases, they can. It just takes a
    little bit longer, and they have to go through more hoops to do
    it.
        But they can make larger cases in terms of drug quantities
    and numbers of people using and selling, if they took the time
    to do it. And they do, but they just don't do it in larger
    numbers.
        Mr. Scott. Is it true or not true that some street-level
    person being picked out and arrested and given the 5-year
    mandatory minimums, that that person will routinely be replaced
    on the street almost instantaneously?
        Ms. Coleman-Davis. Absolutely. Absolutely.
        Mr. Scott. How did we--?
        Ms. Coleman-Davis. The answer is yes.
        Mr. Scott. How did you ever--thank you--obviously, we have
    a vote pending that I have to make. And I want to thank all of
    our witnesses. Your testimony has been extremely helpful.
        I think there is obviously consensus that something has to
    be done. There is not a consensus exactly what it should be,
    but we should make as much progress as we can in the near
    future on this issue. And I want to thank all of our witnesses.
        The record will remain open for 5 legislative days for
    additional materials. And there being nothing more, the
    Committee stands adjourned.
        [Whereupon, at 1:34 p.m., the Subcommittee was adjourned.]
                                A P P E N D I X

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                   Material Submitted for the Hearing Record