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

                            TO 1 DISPARITY?



                               BEFORE THE

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                    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

49-783                    WASHINGTON : 2009
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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
  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
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

            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

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

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel

                            C O N T E N T S


                              MAY 21, 2009


                               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


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


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

                            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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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?


    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 
    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 
    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?


    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 
    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 
    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?


    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 
    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 
    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 
    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?


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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?
    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 
    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 
    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 
    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-
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Breuer?


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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?


    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 
    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 
    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 
    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 
    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 
    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?


    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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?


    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 
    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 
    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 
    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 
    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 
    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?


    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 
    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 
    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 
    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?


    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 
    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 
    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 
    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 
    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 
    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 
    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


               Material Submitted for the Hearing Record