[Senate Hearing 111-559]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-559
 
 RESTORING FAIRNESS TO FEDERAL SENTENCING: ADDRESSING THE CRACK-POWDER 
                               DISPARITY

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON CRIME AND DRUGS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 29, 2009

                               __________

                          Serial No. J-111-17

                               __________

         Printed for the use of the Committee on the Judiciary



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                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
            Bruce A. Cohen, Chief Counsel and Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                                 ------                                

                    Subcommittee on Crime and Drugs

                 RICHARD J. DURBIN, Illinois, Chairman
HERB KOHL, Wisconsin                 LINDSEY O. GRAHAM, South Carolina
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         CHARLES E. GRASSLEY, Iowa
BENJAMIN L. CARDIN, Maryland         JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             TOM COBURN, Oklahoma
EDWARD E. KAUFMAN, Delaware
                 Joseph Zogby, Democratic Chief Counsel
                  Walt Kuhn, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prepared statement...........................................   103
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   105
Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina.......................................................    11
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   152

                               WITNESSES

Breuer, Lanny, Assistant Attorney General, Criminal Division, 
  U.S. Department of Justice, Washington, D.C....................     4
Hinojosa, Ricardo H., Acting Chair, U.S. Sentencing Commission, 
  Washington, D.C................................................     9
Hutchinson, Asa, Asa Hutchinson Law Group, Rogers, Arkansas, and 
  former Administrator U.S. Drug Enforcement Agency..............    26
Parker, Cedric, Alton, Illinois..................................    28
Timoney, John F., Chief of Police, Miami Police Department, 
  Miami, Florida.................................................    25
Walton, Reggie B., District Judge for the District of Columbia, 
  on behalf of the Judicial Conference of the United States, 
  Washington, D.C................................................     7

                         QUESTIONS AND ANSWERS

Responses of Ricardo H. Hinojosa to questions submitted by 
  Senators Coburn and Grassley...................................    36
Responses of Asa Hutchinson to questions submitted by Senator 
  Grassley.......................................................    80
Responses of Reggie B. Walton to questions submitted by Senator 
  Grassley.......................................................    81
Questions submitted by Senator Grassley to John F. Timoney and 
  Lanny Breuer (Note: Responses to questions were not received as 
  of the time of printing, August 9, 2010).......................    82

                       SUBMISSIONS FOR THE RECORD

Austin-Hillery, Nicole M., Director and Counsel, Brennan Center 
  for Justice, Washington, DC, statement.........................    84
Breuer, Lanny, Assistant Attorney General, Criminal Division, 
  U.S. Department of Justice, Washington, D.C., statement........    90
Hall, John Wesley, President, National Association of Criminal 
  Defense Lawyers, Washington, DC, statement.....................   106
Hanson, Glen, Professor, Department of Pharmacology and 
  Toxicology, University of Utah, Salt Lake City, Utah, statement   110
Hillier, Thomas W., II, Federal Public Defender, Western District 
  of Washington, Chair, Federal Defender Legislative Expert 
  Panel, and Jon Sands, Federal Public Defender for the District 
  of Arizona, Chair, Federal Defender Sentencing Guidelines 
  Committee, statement...........................................   111
Hinojosa, Ricardo H., Acting Chair, U.S. Sentencing Commission, 
  Washington, D.C., statement....................................   130
Hutchinson, Asa, Asa Hutchinson Law Group, Rogers, Arkansas, and 
  former Administrator U.S. Drug Enforcement Agency, statement...   146
Kosten, Thomas, MD and Andrea Stoler MD, Baylor College of 
  Medicine, Departments of Psychiatry and Neuroscience, Houston, 
  Texas, statement...............................................   150
Mauer, Marc, Executive Director, Sentencing Project, Washington, 
  DC, statement..................................................   155
NAACP Legal Defense & Educational Fund, Inc, John Payton, 
  Director-Counsel and President, Washington, DC, statement......   165
National District Attorneys Association, Joseph I. Cassilly, 
  President, Alexandria, Virginia, statement.....................   173
Parker, Cedric, Alton, Illinois, statement.......................   180
Price, Mary, Vice President and General Counsel, Families Against 
  Mandatory Minimums, Washington, DC, statement..................   183
Seventy-Five Organizations & Law Professors in Support...........   189
Susman, Thomas M., American Bar Association, Washington, DC, 
  statement......................................................   196
Timoney, John F., Chief of Police, Miami Police Department, 
  Miami, Florida, statement......................................   204
Volkow, Nora D., MD, Director, National Institute on Drug Abuse, 
  National Institutes of Health, Department of Health and Human 
  Services, Washington, DC, statement............................   207
Walton, Reggie B., District Judge for the District of Columbia, 
  on behalf of the Judicial Conference of the United States, 
  Washington, D.C., statement....................................   215


 RESTORING FAIRNESS TO FEDERAL SENTENCING: ADDRESSING THE CRACK-POWDER 
                               DISPARITY

                              ----------                              


                       WEDNESDAY, APRIL 29, 2009

                                       U.S. Senate,
                           Subcommittee on Crime and Drugs,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Feinstein, Klobuchar, Kaufman, 
Graham, and Hatch.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Chairman Durbin. This hearing will come to order. The 
subject of today's hearing is ``Restoring Fairness to Federal 
Sentencing: Addressing the Crack-Powder Disparity.''
    This is the second hearing of the Crime and Drugs 
Subcommittee in the 111th Congress, and first, a word about our 
initial hearing, which focused on the greatest organized crime 
threat to our country--the Mexican drug cartels. Based on what 
we learned at the hearing, Senator Graham and I are working on 
bipartisan legislation to crack down on drug cartels, which we 
will introduce very soon.
    There is a direct connection between Mexican drug cartels 
and the subject of today's hearing--our drug sentencing policy 
in America We learned at our first hearing that Mexican drug 
cartels supply 90 percent of the cocaine in the United States 
and that our drug policy, which focuses largely on criminal 
sanctions instead of prevention and treatment, has failed to 
stem America's insatiable demand for illegal narcotics.
    Cocaine, whether powder or crack, has a devastating impact 
on families and on our society, but we cannot address this 
problem through law enforcement alone. We need a comprehensive 
approach that cracks down on drug-trafficking organizations 
while emphasizing prevention and treatment for addicts.
    Our drug sentencing policy also is the single greatest 
cause of the record levels of incarceration in America. Today 
in the United States, more than 2.3 million people are 
imprisoned. We have the most prisoners of any country in the 
world, as well as the highest per capita rate of prisoners in 
the world. One in 31 Americans are in prison, on parole, or on 
probation, including one in every 11 African-Americans. And 
over 50 percent of Federal inmates are imprisoned for drug 
crimes.
    The United States has made great strides in the last half 
century in ensuring equal treatment under the law for all. When 
it comes to the Federal criminal justice system, however, 
inequalities are growing rather than shrinking. African-
Americans are incarcerated at nearly 6 times the rate of white 
Americans, while Hispanics are incarcerated almost twice as 
much.
    Today we turn our attention to one especially troubling 
aspect of our failed drug policy: The so-called crack-powder 
disparity. It takes 100 times more powder cocaine than crack 
cocaine to trigger the same harsh mandatory minimum sentences. 
This chart here will indicate that disparity by chart. Under 
current law, mere possession of 5 grams of crack--the weight of 
five packets of sweetener--carries the same sentence as 
distribution of half a kilogram of powder--or 500 packets of 
sweetener. That is the difference.
    The crack-powder disparity is one of the most significant 
causes of the disparity in incarceration rates in America, 
particularly the disparity between African-Americans and 
Caucasians. The dramatically higher penalties for crack have 
disproportionately affected the African-American community: 81 
percent of those convicted for crack offenses in 2007 were 
African-American, although only about 25 percent of crack 
cocaine users are African-American. The low crack threshold 
also diverts scarce law enforcement resources away from efforts 
to combat major traffickers and drug cartels.
    These racial disparities undermine trust in our criminal 
justice system and have a corrosive effect on the relationship 
between law enforcement and minority communities. As the U.S. 
Sentencing Commission has said, and I quote, even ``perceived 
improper racial disparity fosters disrespect for and lack of 
confidence in the criminal justice system.''
    This sentencing framework, created in 1986, was fueled by 
fears about the newest drug epidemic and based on assumptions 
that we now know were exaggerated or just plain false. And let 
me tell you, I was one of those who voted for this disparity. 
And if you look at the debate, when I was a Member of the House 
of Representatives, you will find leading African-Americans in 
the House of Representatives who were arguing for this 
disparity. Crack was a new phenomenon. It was viewed as a 
scourge. It appeared to be something out of control that needed 
to be dealt with harshly and quickly, and that was the reason 
that many of us supported that sentencing disparity. Today, on 
reflection, we realize that decision was wrong.
    We have learned a great deal since that vote. Vice 
President Biden, the previous Chair of the Committee, was one 
of the authors of the disparity himself. When he chaired a 
hearing of this Subcommittee on this issue last year, he said, 
``each of the myths upon which we based the disparity has since 
been dispelled or altered.''
    Some argue that the sentencing disparity is justified 
because crack cocaine is associated with more violence than its 
powder counterpart. But the truth is that crack-related 
violence has decreased significantly since the 1980's, and 
today 94 percent of crack cocaine cases do not involve violence 
at all. And cases that do involve violence are subject to 
increased sentences, anyway, including a mandatory minimum for 
use of a weapon in connection with drug-trafficking offense.
    Sadly, both the crack trade and, as we are witnessing along 
our Southern border, the trade in cocaine powder are frequently 
associated with violence. But the evidence just does not 
justify a sentencing disparity between the two forms of the 
same drug.
    In the 110th Congress, I was the Chair of the Human Rights 
Subcommittee, and we focused on issues like genocide in Darfur, 
Internet censorship in China, and rape as a weapon of war in 
the Democratic Republic of Congo. But Americans must also be 
prepared to look ourselves in the mirror and recognize that we 
are not above reproach. Our record-high incarceration rates and 
the racial disparities in our criminal justice system are human 
rights issues that we must face honestly.
    The first important step we should take is to completely 
eliminate the crack-powder disparity and to adopt a one-to-one 
sentencing ratio for crack and powder cocaine. As the 
Sentencing Commission has said, ``Revising the crack cocaine 
thresholds would better reduce the [sentencing] gap than any 
other single policy change, and it would dramatically improve 
the fairness of the Federal sentencing system.'' Given what we 
have learned during the last 23 years, the sentencing disparity 
between crack and powder cocaine is both unjustified and 
unjust.
    During the course of these hearings this morning, we are 
going to hear of one family that has been impacted, a family 
from my State, by this sentencing disparity. It is shocking to 
hear what has happened to this family because of a decision 
which we made many years ago to create this disparity.
    In closing, it is important to note that there is a 
bipartisan consensus that we must address the crack-powder 
disparity. In particular, I want to acknowledge and commend the 
leadership of members of this Committee, Senators Hatch and 
Sessions who have looked at this issue carefully themselves. I 
look forward to working with them as well as my Ranking 
Republican, Senator Graham, and other members of the Committee, 
and the Obama administration to address this important issue on 
a bipartisan basis.
    Other members of the Committee will be joining us as we 
proceed this morning, Senator Graham included, and he will have 
an opening statement, which will be made part of the record at 
this point in the record for this hearing.
    Unless Senator Feinstein has an opening statement, I will 
turn to our first panel of witnesses.
    Senator Feinstein. If I could just say one thing. I have 
been a cosponsor with Senator Hatch on changing the formula to 
20:1. My interest in coming here this morning is to try and see 
what the appropriate change should be. There are pros and cons, 
if you go to 10:1, if you go to 0:0, whatever you go to. But 
what I am most interested in, Senator--there is no question in 
my mind that it needs a change--is to exactly what.
    Chairman Durbin. Thank you, Senator Feinstein.
    Now we will turn to our first panel. Each witness will have 
5 minutes to make an opening statement before questions, and 
their complete written statements will be included in the 
record.
    As is the custom of the Judiciary Committee, I ask the 
witnesses to please stand and raise your right hand to be 
sworn. Do you solemnly swear that the testimony you will give 
is the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Breuer. I do.
    Judge Walton. I do.
    Judge Hinojosa. I do.
    Chairman Durbin. Let the record reflect that the witnesses 
answered in the affirmative.
    Our first witness, Lanny Breuer, was just sworn in last 
week--7 days on the job now--as Assistant Attorney General for 
the Criminal Division at the Department of Justice, following 
unanimous confirmation by the Senate last week. I am 
appreciative that your first congressional testimony as head of 
the Criminal Division is before this Subcommittee on this 
issue. Your presence speaks volumes about the administration's 
commitment to restoring fairness to Federal sentencing. It is 
also a significant day because I understand Mr. Breuer is going 
to make an important announcement, and we look forward to 
hearing it.
    Mr. Breuer began his career as an Assistant District 
Attorney in Manhattan where he prosecuted both violent and 
white-collar criminal cases. He later joined the law firm of 
Covington & Burling, where he has worked with the exception of 
a 2-year period, since 1989. From 1997 to 1999, Mr. Breuer 
served as Special Counsel to President Clinton. He received his 
B.A. and J.D. from Columbia University.
    Thank you for being here today, Mr. Breuer, and please 
proceed with your testimony.

STATEMENT OF LANNY BREUER, ASSISTANT ATTORNEY GENERAL, CRIMINAL 
     DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Breuer. Mr. Chairman, thank you so much, Senator 
Feinstein, thank you for giving the Department of Justice the 
opportunity to appear before you today to share our views on 
the important issue of the existing 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 to deter crime. 
Indeed, the certainty of our sentencing structure is critical 
to disrupting and dismantling the threat posed by drug-
trafficking organizations and gangs that plague our Nation's 
streets. It is vital in the fight against violent crime, child 
exploitation, and sex trafficking, and it is essential to 
effectively punishing financial fraud.
    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 in the criminal justice process. It 
leads victims and witnesses of crime to think twice before 
cooperating with law enforcement, tempts jurors to ignore the 
law and facts when judging a criminal case, and draws the 
public into questioning the motives of governmental officials.
    Changing these perceptions will strengthen law enforcement, 
and there is no better opportunity to address these perceptions 
than 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. Drug-trafficking organizations 
and gangs that manufacture and traffic drugs have long posed an 
extremely serious public health and safety threat to the United 
States. The administration is committed to rooting out these 
dangerous organizations.
    In the 1980s, crack cocaine was the newest form of cocaine 
to hit American streets. In 1986, in the midst of the 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 back to 1995, the 
Sentencing Commission has documented in great detail all of the 
science of crack and powder cocaine, as well as the legislative 
and law enforcement response to cocaine trafficking.
    I will not review all of the information here other than to 
note the mounting evidence documented by the Commission that 
the current cocaine sentencing disparity is difficult to 
justify based on the facts and science, including the evidence 
that crack is not an inherently more addictive substance than 
powder cocaine. Moreover, the Sentencing Commission has shown 
that the quantity-based cocaine sentencing scheme often 
punishes the low-level crack offenders far more harshly than 
similarly situated powder cocaine offenders.
    Additionally, Commission data confirms that in 2006, 80 
percent of individuals convicted of Federal crack cocaine 
offenses were African-American while just 10 percent were 
white. The impact of these laws has fueled the belief across 
the country that Federal cocaine laws are unjust. We believe 
that the Commission's work forms the foundation for any 
thorough review of Federal cocaine sentencing policy, and we 
commend the Commission for all that it has done in this area.
    Based in significant part on the 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, may 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 know 
now, as well as the need to ensure fundamental fairness in our 
sentencing laws, a change in policy is needed. We think this 
change should be addressed in this Congress, and that Congress' 
objective should be to completely eliminate the sentencing 
disparity between crack cocaine and powder cocaine.
    The administration is, of course, aware that there are some 
who will disagree. The supporters of the current cocaine 
penalty structure believe that the disparity is justified 
because it accounts for a greater degree of violence and 
weapons involvement associated with some crack offenses. This 
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 that the best 
way to address drug-related violence is to ensure that the most 
severe penalties and sentences are meted out to those who 
commit violent offenses.
    However, increased penalties for this conduct should 
generally be imposed on a case-by-case basis, not on a class of 
offenders, the majority of whom do not use any violence or 
possess a weapon. We support sentencing enhancements for those, 
for example, who use 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 the current Federal cocaine sentencing structure fails to 
appropriately reflect the differences and similarities between 
crack and powder cocaine, the offenses involving each form of 
the drug, and the goal of sentencing serious and major 
traffickers to significant prison sentences. We also believe 
that the structure is especially problematic because a growing 
number of citizens view it as fundamentally unfair.
    Accordingly, as I mentioned a moment ago, the 
administration believes that Congress' goal should be to 
completely eliminate the disparity.
    Earlier this month, the Attorney General asked the Deputy 
Attorney General to form and chair a working group to examine 
Federal sentencing and corrections policy. I have the privilege 
of being the Vice Chair of that effort.
    In addition to studying issues related to prisoner re-
entry, Department policies on 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 cocaine trafficking.
    We look forward to working closely with Congress, Mr. 
Chairman, and the Sentencing Commission on this important 
policy issue and finding a workable solution.
    As I stated at the outset, this administration believes 
that 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 goals of 
ensuring that the public is kept safe, reducing crime, and 
minimizing the wide-reaching negative effects of illegal drugs.
    Thank you for the opportunity to share the administration's 
views, and I welcome any questions you may have.
    [The prepared statement of Mr. Breuer appears as a 
submission for the record.]
    Chairman Durbin. Thanks, Mr. Breuer.
    The next witness is Judge Reggie Walton, here to represent 
the Judicial Conference of the United States. After being 
nominated by President George W. Bush, Judge Walton has served 
on the U.S. District Court for the District of Columbia since 
2001. He previously was an Associate Judge of the Superior 
Court of the District of Columbia from 1981 to 1989, and from 
1991 to 2001, having been appointed by Presidents Reagan and 
George H.W. Bush. Between 1989 and 1991, Judge Walton was 
Associate Director of the Office of National Drug Control 
Policy and Senior White House Adviser for Crime. From 1976 to 
1981, he also served as a Federal prosecutor. He received his 
B.A. from West Virginia State College and his J.D. from 
American University. Judge Walton has been outspoken about the 
need to address the crack-powder disparity as well as other 
racial disparities in our criminal justice system.
    Thank you for your leadership on this and so many issues 
and for joining us today. The floor is yours.

  STATEMENT OF HON. REGGIE B. WALTON, UNITED STATES DISTRICT 
 JUDGE FOR THE DISTRICT OF COLUMBIA, ON BEHALF OF THE JUDICIAL 
       CONFERENCE OF THE UNITED STATES, WASHINGTON, D.C.

    Judge Walton. Thank you very much. Good morning, Chairman 
Durbin and Senator Feinstein. I would ask that my written 
testimony be made a part of the record, which I would like to 
summarize.
    Chairman Durbin. Without objection.
    Judge Walton. It is an honor to have the opportunity to be 
here on behalf of the Judicial Conference of the United States 
to address what I believe is one of the most important issues 
confronting our criminal justice system today. No one can 
appreciate, I think, the agony of having to enforce a law that 
one believes is fundamentally unfair and disproportionately 
impacts individuals who look like me who appear before me all 
too often and we have to impose sentences that we know are 
unjust. And I hope that we finally have reached the point in 
our history that we are prepared to address this significant 
issue.
    I, too, when I was a part of the Drug Office, advocated in 
support of disparity between crack and powder because I, too, 
thought, based upon the information available to us at that 
time, that disparity at least on some level was appropriate. 
However, we now know, as you indicated and as Mr. Breuer 
indicated, that we were mistaken in many respects in reference 
to crack cocaine. And I can tell you in reference to the issue 
of violence that I see no greater level of violence in 
reference to the cases that come before me involving crack 
cocaine as compared to any other drug. And I think that alone 
is sufficient justification to address this issue.
    One of the other things I do in addition to my judicial 
responsibilities is I chair the National Prison Rape 
Elimination Commission, and in that capacity, I have traveled 
all over the country into prisons and jails and held hearings 
on that issue. And the one thing that I always find very 
disturbing is when I go into prisons, even in parts of the 
country where you think there are not a lot of African-
Americans, our jails are loaded with people who look like me. 
And I believe that we have to do something and we have to do 
something now to address this phenomenon that is affecting our 
country and having a devastating impact on the African-American 
community.
    The problem not only affects what happens in the Federal 
system, but it also has a significant impact on the entire 
system. As a District of Columbia local judge, I experienced 
circumstances, even though the sentencing law did not apply to 
cases brought in the District of Columbia court system, when 
jurors were unwilling to serve, who knew about the disparity 
and said that they could just not do it because they thought 
the process was unfair. I know of jurors who would tell me 
after the fact, when they refused to convict, that even though 
they thought the evidence was overwhelming, they were not 
prepared to put another young black man in prison knowing the 
disparity that existed between crack and powder in those types 
of cases. And I think it is very unfortunate in America that we 
have a sizable portion of our population who feel that the 
system is unfair and feel that race underlies what is being 
done in reference to how we prosecute and how we sentence 
certain offenders.
    So I hope that the Congress, with the support of the 
administration and the understanding that the judiciary also 
supports the effort, will finally address this problem. This is 
not an issue that relates to the question of whether we are 
being lenient on crime by addressing this problem. If that is 
what it was about, people who know me know I would not be here 
testifying because I believe that when people engage in 
aberrant behavior, punishment is appropriate. But punishment 
has to be fair, and it has to be perceived to be fair. And we 
have to ensure that our citizenry is supportive of our laws, 
because when you think about it, it is amazing that our court 
system has the authority that it does within our society 
because we do not have armies to enforce what we do. People go 
along with what we do because they believe, by and large, that 
the process is fair. But as I say, there are many of our fellow 
Americans who do not believe that is true, and therefore, I 
think it is time that we address this problem because 
fundamental fairness requires that it be done.
    Thank you.
    [The prepared statement of Judge Walton appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Judge Walton.
    Judge Ricardo Hinojosa is Acting Chair of the U.S. 
Sentencing Commission. After being nominated by President 
Reagan, he served on the U.S. District Court for the Southern 
District of Texas since 1983. He is also an adjunct professor 
at the University of Texas Law School, and prior to being 
appointed to the Federal bench, Judge Hinojosa was a partner at 
the law firm of Ewers and Toothaker. Judge Hinojosa is a 
graduate of the University of Texas and Harvard Law School. I 
want to thank the Sentencing Commission for its efforts over 
the last 14 years to call attention to the unintended effects 
of the crack cocaine sentencing disparity. Since 1995, the 
Commission has issued several reports exhaustively documenting 
these effects and has consistently urged Congress to address 
the disparity. I hope 2009 will be the year that Congress 
responds to the Sentencing Commission's recommendations.
    Judge Hinojosa, thank you very much for being here today, 
and you may proceed with your testimony.

  STATEMENT OF HON. RICARDO H. HINOJOSA, ACTING CHAIR, UNITED 
         STATES SENTENCING COMMISSION, WASHINGTON, D.C.

    Judge Hinojosa. Chairman Durbin, Senator Feinstein, I 
appreciate the opportunity on behalf of the United States 
Sentencing Commission to discuss this morning Federal cocaine 
sentencing policy.
    As you have stated, Chairman Durbin, 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.
    As everyone knows, in the year 2007 the Commission 
promulgated a crack cocaine guideline amendment to address some 
of the disparities, 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 once again urges Congress to take 
legislative action on this important issue.
    In the interest of time, I will briefly cover some of the 
information submitted in my written statement.
    Of the information that was sent to the Commission for 
fiscal year 2008, approximately half of the cases that are 
drug-trafficking offenses were either crack cocaine cases or 
powder cocaine cases. Approximately 5,913 defendants were 
sentenced for crack cocaine, about 24 percent of the drug-
trafficking cases, and 5,769 powder cocaine defendants were 
sentenced in fiscal year 2008, which represents about 23 
percent of the drug-trafficking cases.
    African-Americans continue to comprise the substantial 
majority of Federal crack cocaine offenders, approximately 80.6 
percent of the defendants sentenced in fiscal year 2008, while 
Hispanics comprised the majority of the powder cocaine 
offenders. Approximately 52.5 percent of powder cocaine 
offenders are Hispanic.
    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 approximately 24 months, or 
about 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 minimum penalties at virtually equal rates--about 80 
percent of the offenders--even though the median drug weight 
for powder cocaine offenses was 7,000 grams of powder compared 
to 52 grams for crack cocaine offenders.
    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 guideline ``safety valve'' 
provisions. This is partly attributable to differences in 
criminal history and weapon involvement.
    In fiscal year 2008, 28.1 percent of crack cocaine 
offenders compared to 16.9 percent of powder cocaine offenders 
either received the 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 criminal 
history categories higher than Criminal History Category I, 
compared to 40.0 percent of powder cocaine offenders.
    Another factor is the applicability of mitigating role 
adjustment as provided by the courts in fiscal year 2008. 
Approximately 5.1 percent of the crack cocaine offenders 
received the mitigating role adjustment as opposed to 20 
percent of the powder cocaine offenders who received the 
mitigating role adjustment.
    The sentencing disparity 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 Act. 
The Court held 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 with regards 
to crack and powder its own drug quantity ratio with regards to 
the crack cocaine guidelines.
    With regards to the operation of the Commission's decision 
to retroactively apply the 2007 guideline amendments, I would 
like to give some information.
    In the 1 year since the guideline amendment of 2007 was 
made retroactive, the Commission has received approximately 
19,239 sentence reduction motions that have been acted on by 
the courts. Of those, approximately 70 percent--13,408--have 
been granted, and the average reduction was 24 months from 
approximately 140 months to 116 months. Approximately 30 
percent have been denied, 5,831. Some of those have been denied 
because the defendant had not been sentenced with regards to 
crack cocaine. Others have been denied because the defendant 
was not eligible either because of statutory mandatory minimums 
or a career offender or armed career offender status and/or 
were denied on other reasons on the merits.
    The Commission's belief continues to be that there is no 
justification for the current statutory penalty scheme for 
powder cocaine and crack cocaine offenses and is of the view 
that any comprehensive solution requires revision of the 
current statutory penalties by Congress.
    The Commission remains committed to its 2002 recommendation 
that such statutory drug quantity ratio should be no greater 
than 20:1 and recommends further that Congress increase the 5-
year and 10-year statutory mandatory minimum threshold 
quantities for crack cocaine offenses, repeal the mandatory 
minimum penalty provision for simple possession of crack 
cocaine, and reject addressing the 100:1 drug quantity ratio by 
decreasing the 5-year and 10-year statutory 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 that congressional concerns about the harms 
associated with crack cocaine are best captured through the 
sentencing guideline system.
    The bipartisan United States Sentencing Commission 
continues to offer its help, support, and services to the 
Congress, to the Executive, and to the Judiciary branch, as 
well as to all others interested in the subject who are 
interested and continue to be interested in this important 
issue and requests that any congressional action include 
emergency amendment authority with regard to guideline 
amendments so that they would go into effect as soon as 
Congress acts.
    Again, on behalf of the United States Sentencing 
Commission, we thank you very much for holding this hearing, 
and we appreciate the continued interest in this very important 
subject.
    [The prepared statement of Judge Hinojosa appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much, Judge. And before we 
ask questions of the panel, I would like to invite my Ranking 
Member, Senator Graham, to make an opening statement.

STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. I will be very 
brief. I think this is a topic long overdue for discussion. 
When you look at your panel, you have got a very unusual group 
of people, political divergent who have the same message. I am 
looking forward to listening.
    Chairman Durbin. Thank you very much.
    I would like to ask the first question of Mr. Breuer so 
that there is clarity on the record. I listened carefully to 
your testimony. You testified the administration believes 
Congress should completely eliminate the sentencing disparity 
between crack cocaine and powder cocaine. To be perfectly 
clear, does the administration believe that Congress should set 
the sentencing ratio for crack and powder at 1:1 ?
    Mr. Breuer. Mr. Chairman, the administration does believe 
that. We believe that should be part of a comprehensive 
approach, but that is the position of the administration.
    Chairman Durbin. There may be some disagreement among those 
who are on the panel here, but I would like to go to the next 
question that crosses my mind. What are we to do with all the 
people who were sentenced over the last 23 years with this 
disparity of 100:1 ? What is the appropriate thing, the just 
and fair thing to do, for those who are currently in prison?
    Mr. Breuer. Mr. Chairman, that is, of course, a very 
difficult question, and, of course, within the Department of 
Justice at the Attorney General's request, we are having right 
now a Sentencing Working Group that is going to go and reach 
out to members of the Commission, the judiciary, and all the 
stakeholders. Whether at the end of the day the issue of 
retroactivity is one that should be adopted, I am sure that 
will be a topic that will be discussed.
    Senator, it is a very hard issue. I do not think there is 
an easy fix to it. I think the process is just going to have to 
take forth so we can figure out the best resolution there.
    Chairman Durbin. If I could ask the two other witnesses 
that question, and add a little context to it. In December 
2007, the Sentencing Commission unanimously decided to apply 
its reduction in crack sentences retroactively. The Commission 
estimated that it would affect the sentences of approximately 
19,500 inmates over the course of several years. At the time, 
opponents of retroactivity argued that the courts would be 
flooded; the judiciary would be hard pressed to handle all 
these cases.
    So what is the verdict? I ask of the two other witnesses. 
Have the courts been flooded, or has the process gone smoothly? 
Has ever defendant seeking a sentence reduction received one? 
And if not, why not? And are judges still able to consider the 
individualized factors such as the use of a weapon or crimes of 
violence and an offender's criminal history while incarcerated 
and similar aspects? I would like to ask Judge Walton and Judge 
Hinojosa to respond.
    Judge Walton. As you know, there was tremendous concern 
when the Commission was considering the issue of retroactivity 
as to whether it would overload the court process. And I had 
some of those concerns, but the Criminal Law Committee did 
recommend to the Judicial Conference that we support 
retroactivity, and we did so.
    My feeling is that the process, as far as the District of 
Columbia is concerned, has gone smoothly, and based upon what I 
know from my colleagues throughout the country, it has gone 
smoothly also. Has it placed a burden on the courts? Yes, it 
has. But I do not think we can let that burden impair us from 
doing what fundamentally has to be done to make our process 
fair.
    So if it means my probation department and as individual 
judges we have to work a little harder in order to address the 
problem, we are prepared to roll up our sleeves and do it.
    Chairman Durbin. Judge Hinojosa.
    Judge Hinojosa. Chairman Durbin, with regards to that 
issue, the Commission, when it acted in 2007 amending the 
guidelines, seriously looked at the issue of retroactivity. As 
you know, the statute gives the Commission the opportunity when 
it changes guidelines to decrease sentences, to apply them 
retroactively and allow the courts to apply them retroactively 
if they so desire.
    We held hearings. We heard from individuals from the 
judiciary as well as other interested groups, as well as the 
executive branch of the Government, and then decided 
unanimously to apply it retroactively. We did put it off for a 
period of about 3 months. This was going to be the largest 
number of defendants that had ever been eligible for a sentence 
reduction. This gave the courts, as well as the executive and 
defenders' organizations, an opportunity to be prepared with 
regards to the motions that would be filed.
    We also amended Section 1B1.10 of the guidelines with 
regards to the matters that could be considered by a court in 
determining whether to reduce the sentence.
    I will indicate that it appears to have run smoothly across 
the country so far. We have received information as of March of 
2009 of approximately 19,239 motions, as I indicated. About 70 
percent of those have been granted; 30 percent have been 
denied, as I stated a little while ago. About 11 percent of 
them have been denied because defendants filed them who did not 
have crack cocaine convictions. The others have been denied 
either because the mandatory minimums apply and/or career 
offender status or armed career offender status applies as well 
as for other reasons on the merits.
    It is totally discretionary with regards to a sentencing 
judge as to whether to grant the motion to reduce the sentence, 
and the Commission provided some guidance with regards to that.
    I will indicate that any action on the part of the 
Commission with regards to retroactivity would be guided, as it 
always has, by deliberative effort, certainly consultation with 
the other branches of Government, as well as individuals who 
are interested on this issue; and we would certainly proceed to 
act in that way to make a decision with regards to any 
guideline amendment that would come as a result of any 
reduction that might apply.
    Chairman Durbin. Thank you.
    In addition to considering the impact or burden of 
retroactivity, I want to share with the panel some statistics 
from our Nation's capital. In Washington, DC, 52 percent of 
Federal cases involve crack cocaine--52 percent. That is 2\1/2\ 
times the national average. Then 92.8 percent of the city's 
incarcerated population is African-American and over 50 percent 
of young black men in the city are either incarcerated or under 
court supervision. Over 50 percent.
    Judge Walton, you sat on the Federal bench here for 8 years 
and presided over hundreds of cases involving crack cocaine. In 
your experience, what effect does this sentencing disparity 
between crack and powder have on the criminal justice system? I 
gave as an illustration earlier that this much crack would be 
viewed the same as this much in powder cocaine. To put that in 
dollar terms, 5 grams of crack now selling at $69 would market 
for $342, would merit the same criminal penalty at 500 grams of 
powder cocaine now selling at $73 on the street, $37,000--$342, 
$37,000, same sentencing aspect.
    So can you tell me, have you--you have seen this up close, 
and we are going to hear some further testimony on this. Can 
you tell me the burden on the current system and the impact 
this has on the sentencing aspects?
    Judge Walton. Yes, Senator. As I indicated in my opening 
remarks, I know from personal experience jurors during the voir 
dire process who would come up and say that they were not 
willing to serve as a juror because they know about the 
disparity, and I think that is unfortunate when our citizenry 
is not prepared to participate in our judicial process because 
they believe it is fundamental unfair.
    As I also indicated, we have had jurors who have said after 
the fact, who would not convict and there was a hung jury, that 
the reason they would not convict is because they know of the 
disparity and they were not prepared to contribute another 
young black male--who it usually is--to the system knowing the 
unfairness of the process.
    I know, because I spend a lot of time talking to people in 
the community, that there are people who are unwilling to come 
forward and cooperate with law enforcement because, again, they 
believe the system is unfair.
    So I think it does have a perverted impact on the attitude 
that many people in our country have about the fairness of the 
process. And whenever that happens, I think it builds 
disrespect for our judicial process, which obviously has an 
overall impact. And as I said, it is just not within the 
Federal system, because when I served on the superior court, 
even though the Federal sentencing laws did not impact what was 
taking place in that court, we had the same attitude being 
expressed by jurors and other citizens about the fairness of 
the process. So it had an impact on the process in that system 
also.
    Chairman Durbin. Thank you very much.
    Senator Graham.
    Senator Graham. Thank you. A very good discussion.
    Generally speaking, do you believe that crack cocaine has 
been a detriment to minority communities in terms of their 
health and their future, Judge?
    Judge Walton. Absolutely. There is no question that crack 
cocaine has had a devastating impact on African-American 
communities. I know that there are people who are afraid to 
even come outside of their homes because of the violence that 
exists. But I have seen violence in reference to other drugs in 
addition to crack. And as I indicated earlier, I cannot say, 
based upon the cases I see coming before me, that at this time 
the level of violence is any greater as it relates to crack and 
other drugs.
    We know a lot of our children who are having difficulty 
educationally, academically, are children who were born to 
women who used during their pregnancy. So, yes, it has had a 
tremendous impact. But it also has had a tremendous impact 
because the breakdown of the African-American family has had a 
devastating impact on the African-American community, and to a 
large degree, when you go into many of these communities, there 
are no men because so many of our young black men are locked 
up. And I think that is a major problem that this country has 
to confront.
    Senator Graham. The only reason I mention that, you know, 
when you go back and look at a law, there is a reason that laws 
exist, and history sometimes will say that was a dumb reason. 
We have had laws to do some things that, in hindsight, were 
just really racially motivated or just, you know, Neanderthal.
    But when it comes to this drug, I think I understand why 
people back in the 1980s and the early 1990s really wanted to 
declare war on crack cocaine and making it very difficult to be 
involved with its use or sale. So I think Senator Durbin 
probably during that period of time had that motivation, 
anybody that supported this original statute.
    The one thing we can say for us is that all this 
enforcement and punishment you said--has it gone up or down 
throughout the communities? Has it had any impact in terms of 
deterrence?
    Judge Walton. I do not have any statistics or empirical 
data I can provide to you to support the position I am going to 
take. But I have come to believe, in the context of this type 
of crime, that certainty of punishment is more important than 
severity of punishment. Obviously, for repeat offenders and for 
offenders involved in large trafficking organizations or those 
involved----
    Senator Graham. With that in mind, Judge, a mandatory 
minimum, does it have a place here for simple possession, do 
you think?
    Judge Walton. Not for simple possession. The Judicial 
Conference has opposed mandatory minimums.
    Senator Graham. OK. From the administration's point of 
view, do you have any--could you give me an answer to that 
question; has the use of crack cocaine gone up or down after we 
passed these very tough statutes?
    Mr. Breuer. Senator, it is my understanding that use of 
drugs throughout has somewhat gone down, so not just for crack 
cocaine. Whether that is the result of this sentencing regime, 
I think one would be hard pressed to say it is the result. But 
I think overall what we say about crack cocaine would be true 
for other drugs and powder cocaine as well.
    Senator Graham. I think the most revealing testimony is the 
fact you talk about jurors who openly understand that--you 
know, they understand the consequences of one type drug versus 
the other and are very reluctant to find people guilty. So I 
think the Committee is doing a good job here to try to figure 
out how to create justice. But the goal is to protect people 
from the scourge of this drugs. Let us do not lose sight of 
that. And from the Sentencing Commission point of view, if you 
have applied--if you did away with the simple possession 
standard and you went back in case files and you reviewed cases 
of people who are in jail based on simple possession of crack 
cocaine with a mandatory sentence, how many people are we 
talking about letting out of jail?
    Judge Hinojosa. Last fiscal year of 2008, I believe it was 
about 105 cases of simple possession, and about half of those 
cases were subject to mandatory minimums.
    Senator Graham. So not that many people.
    Judge Hinojosa. It was a small number, but, nevertheless, 
it is the only drug that carries a mandatory minimum for simple 
possession.
    Senator Graham. So if you did away with the mandatory 
minimum, you are not--it is only 105 cases that it was used in, 
right?
    Judge Hinojosa. It was 105 cases, and about half of those, 
I believe, actually were subject to the mandatory minimum. 
Nevertheless, it is about 50-some defendants who were affected 
by mandatory minimum with regards to that particular drug who 
were not affected with regards to any other--possession of any 
other drug.
    Senator Graham. Well, here is my statement to you and the 
Committee as a whole, and really to the country, I guess. If we 
change the law to do away with what appears to be an injustice, 
that you get so much more punishment for one type of cocaine 
versus the other, and it has such a disparate effect in terms 
of our demographics, what do we do if we change the law to do 
away with that harshness and make the law still punishment, 
what do we do to prevent the problem? I mean, isn't that the 
goal? The goal is to prevent the problem. And if I thought 
passing a 1,000:1 ratio would do it, I would vote for the law. 
Obviously, it is not and it is creating a counter-effect, and 
it is creating a backlash that is not what we want. We do not 
want the community to stop convicting people because they think 
it is unfair. We want people convicted that deal in this stuff 
and abuse it. But we also want to help them get off of it. So 
if you could just in a minute or so, tell me what do we do if 
we change the law to make it less punitive. How do we fix the 
problem?
    Mr. Breuer. Well, Senator, from the administration's point 
of view, what we would do is we would have a regime that would 
be more case specific. So we would have very severe punishments 
for those who are deserving of severe punishments. If you are a 
serious or major trafficker, you are someone involved in 
violence, you use children, you sell to children, you sell near 
schools or whatever, in that case you should get--and there 
should be certainty to it. And with that, in the comprehensive 
approach we would want rehabilitation so that if you are 
someone who has simple possession or you are someone who has 
had just a small amount of cocaine or such a substance, but you 
do not have violence, that once you are out of jail, if you go 
to jail, that we have some way of dealing with you so that we 
do not have you re-entering the Bureau of Prisons system.
    Senator Graham. One last question. If we change the law or 
we change the sentencing to be more balanced and, quite 
frankly, fair given powder cocaine, do you worry that we send 
the wrong message?
    Mr. Breuer. Senator, from the administration's point of 
view, we think today we are sending the right message. We are 
sending------
    Senator Graham. Do you agree with that, Judge?
    Judge Walton. I do. I agree with everything that Mr. Breuer 
has indicated about how we should address this problem. And I 
do not think we send the wrong message. I believe that 
enforcement is very important to addressing this problem. But I 
also believe that prevention works, and I also believe that 
treatment works. But we have not made the investments in those 
arenas that I believe are necessary.
    Senator Graham. Thank you.
    Chairman Durbin. Without objection, a statement by Senator 
Leahy will be entered into the record.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Mr. Breuer, obviously this is a very major recommendation, 
and it carries with it a lot of concomitant issues, and not the 
least of which is retroactivity. And it seems to me you cannot 
eliminate the disparity without having a program to release 
people from prison who are under these laws, thereby unfairly 
sentenced. And I think we need to know exactly what we are 
talking about.
    Mr. Hinojosa, I was reading your written statement, and the 
question you just answered, and I read something different from 
what you have just responded to. On page 3, powder cocaine and 
crack cocaine offenses together historically have accounted for 
nearly half of the federally sentenced drug-trafficking 
offenders; 24,600 total drug-trafficking cases in 2008; there 
were 5,900 crack cases. That is 24 percent of all drug-
trafficking cases, and 5,760 powder cocaine cases. That is 23 
percent of all drug-trafficking cases. So there are a lot of 
people in prison with this disparity.
    Do you want to say something on that?
    Judge Hinojosa. The number I gave was those that were 
eligible with regards to the 2007 guideline amendment. Some of 
them had already served their sentences, some of them had been 
obviously released, and some were not eligible for other 
reasons. And so the number that I gave is not everyone who had 
been sentenced under the crack-powder ratio, but those who 
might be eligible with regards to the 2007 guideline amendment. 
We have done no study with regards to eligibility with regards 
to any others, nor have we looked into that.
    Senator Feinstein. Well, what would be the eligibility of 
people in prison for immediate parole, assuming there was 
retroactivity and the 1:1 standard was in place?
    Judge Hinojosa. That would depend on what the ratio was and 
what Congress actually decided the ratio should be.
    Senator Feinstein. Well, I am just saying the 
administration has suggested a ratio. Supposing that were, in 
effect, the law. How many Federal offenders would then be 
subject to release? Because you would have a clamor if we 
changed the disparity and kept people in prison.
    Judge Hinojosa. If that were the case and that was the 
legislation, of course, we would do all the numbers with 
regards to whatever that might be.
    Senator Feinstein. But right now we do not know how many 
people would be------
    Judge Hinojosa. No, but we would be glad to get that for 
you, and we have prepared some information with regards to the 
reduction possibilities, but not with regards to the numbers 
presently in custody that might be eligible for retroactivity, 
if that was the way it was proceeded with.
    I will say that one of the things the Commission is also 
attempting to do and has started doing--and this does take some 
time--is to look at the recidivism rates with regards to those 
who have had retroactivity applied with regards to the 2007 
guideline amendments.
    Senator Feinstein. Well, let me ask you, I would appreciate 
getting those numbers, because I think we have to look at this. 
Philosophically, I agree with what the administration has said. 
Practically, before we proceed, I sure want to know the impact. 
And so I think we need that. Now------
    Judge Hinojosa. And I hope I did not leave you with the 
impression, Senator, that the number I had used involved if 
there was a change to 1:1. It was simply the number with 
regards to the 2007 guideline.
    Senator Feinstein. I understand. Thank you. That is 
helpful.
    Now, there are 14 States that do have crack cocaine 
disparities, mine being one of them. Our disparity in 
California is based on the actual minimum sentence, with crack 
defendants sentenced to a 
3-, 4-, 5-year term, and powder cocaine to 2-, 3-, 4-year 
terms. So that is not, I think, as difficult to change. But, 
again, I would want to know what is the practical impact of 
this.
    Let me ask you, Mr. Breuer, I am sure that when you make 
this suggestion, you have analyzed the practical impact of this 
both on the Federal system and the fact that States are apt to 
follow and what the impact would be with those States that do 
have disparities.
    Mr. Breuer. Well, Senator, what I would say with respect to 
that is that, of course, this is the very beginning of the 
process, and we have a working group where we want all the 
stakeholders to get involved. The issue of retroactivity I 
think will be an issue------
    Senator Feinstein. Is the answer that you have not looked 
at that?
    Mr. Breuer. Well, the answer is not that we have not looked 
at it, but the answer is that in speaking--for instance, I 
personally in the first week on the job, when I have spoken to 
those like Judge Walton and Judge Hinojosa and other judges, 
they have said in the past when, for instance, the Sentencing 
Commission decided to have a two-level reduction, that those 
people thought in the beginning that it would be overwhelming, 
that, in fact, judges, as Judge Walton said, were able to do it 
and roll up their sleeves.
    Whether or not if we were to do this now it would create an 
overwhelming burden I do not think has yet been quantified. But 
I think it is an issue and, on the one hand, will be the 
practicality of doing it and, as the Senators have indicated, 
is the fundamental justice in doing that. Somewhere in that 
will be where that discussion comes out.
    Senator Feinstein. I am sure you have talked with law 
enforcement.
    Mr. Breuer. Yes.
    Senator Feinstein. What is the law enforcement view of 
this?
    Mr. Breuer. Well, Senator, I think like everything, there 
is not unanimity. I have had the privilege--yesterday, I spoke, 
for instance, with Chief Bratton, the police chief in Los 
Angeles, who said to me, ``Lanny, you should quote me as saying 
I fully support 1:1, and I fully support the administration's 
position.''
    I see Chief Timoney there, and I had the pleasure of having 
breakfast with him about a week ago, and I think there is a lot 
of support for it.
    I do not want to suggest there is unanimity, but I think a 
lot of law enforcement believes that the current status is 
unsatisfactory. There is probably going to be some debate 
whether it should be 1:1 or something else, but I think there 
are a lot of informed sources who are now very much in 
agreement with this position.
    Senator Feinstein. What would be the administration 
recommendation on retroactivity?
    Mr. Breuer. I do not think yet, Senator, we have one, and 
the reason we do not have one is that in beginning this 
process, I think the administration believes it is essential 
that in a more comprehensive way, we are able to reach out to 
law enforcement, to the Congress, and to other stakeholders. 
Intuitively, there is a lot about retroactivity that seems 
right. But I think if we were to take a firm position now, we, 
in fact, would disenfranchise those who we very much want to 
bring into the process as we all discuss in an informed way 
this issue.
    Senator Feinstein. For whatever it is worth, it is my 
position that any change has to have retroactive consideration, 
because we have to know what we are doing when we do it and 
what the practical application of what we are doing is, not 
just the theoretical application, because you are going to have 
14 States very concerned as well.
    So I would very much appreciate it, Mr. Chairman, if it is 
agreeable with you, that the Attorney General's Office really 
look into this and give us some recommendations of what they 
think this should be as part of any bill.
    Mr. Breuer. Senator, just to reassure you, our goal, in 
fact, for the working group is that the working group within a 
period of a few months, not very long, will, in fact, have 
coalesced all of these issues, and we would be delighted to do 
exactly that.
    Senator Feinstein. That would be very helpful.
    Thanks very much, Mr. Chairman.
    Chairman Durbin. Thank you, Senator Feinstein. I agree with 
you on that point. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you to all of you.
    As you know, I am a former prosecutor, and when I was 
listening to Senator Graham talk about going back to how this 
happened, these disparities in the first place, I think part of 
this was--which I still see today--the scourge of crack cocaine 
and what it does and the very violent offenses that get 
committed with it. So I think it is very clear to say that we 
are not talking about decriminalizing this--right, Mr. Breuer?
    Mr. Breuer. That is exactly right.
    Senator Klobuchar. All right. Very good. And that we 
understand it is a very serious problem.
    On the other side, I think of a judge in Minnesota named 
Pam Alexander, who was a district court judge, who was one of 
the first to strike down the crack cocaine disparity in 
Minnesota. It went up to the Supreme Court, and in 1991, in the 
case of State v. Russell, the Minnesota Supreme Court struck 
down our disparity in our State.
    Pam Alexander was nominated or her name was seriously 
considered for Federal district court judge, and I hope she is 
watching this hearing today, because she was not able to 
advance because of this decision that she had made.
    So I am well aware of this issue, and I think the first 
thing I wanted to say and ask you about was that there were 
reasons given back then for this disparity--and I am sure some 
of them were real, but some of them were--that crack could be 
worse, the effect it had on babies and things like that. And is 
that still true, the crack cocaine? Any comments on that?
    Mr. Breuer. Senator, based on my understanding of the 
Commission's excellent work and its work with respect to 
science, there is no basis for that conclusion.
    Senator Klobuchar. All right. And then, second, the fact 
that sometimes crack, for maybe reasons outside of the drug 
itself, it is involving more gun offenses, more violence; it 
may be those that are using this illegal drug compared to those 
that are using cocaine; it may have nothing to do with the 
drug, but there was some more propensity of cases involving gun 
and violence with crack.
    Mr. Breuer. I think though the numbers have gone down, 
there is still some more prevalence of those who are on the 
streets trading in crack possessing guns or using guns. It is 
why the administration feels we should have a much more 
targeted approach.
    Senator Klobuchar. So your answer to that, for my law 
enforcement people out there who are listening to this very 
carefully, would be that it is not like we are going to 
disregard the fact that guns are used with these crack crimes, 
that you are going to use enhanced sentences. Or how are you 
going to get at that fact? Because, clearly, when you have guns 
with drug cases, it means something more.
    Mr. Breuer. That is exactly right, Senator. What we would 
propose is through the working group and making recommendations 
ultimately is either through enhancements or through further 
legislation that we ensure that those who are trafficking in 
crack cocaine, for instance, who are using guns, that they get 
extremely severe sentences. And so we are not in any way 
proposing that we are going to ignore it. Through a 
comprehensive regime of legislation and enhancements, we very 
much want to address that issue.
    Senator Klobuchar. OK. I think that is very important for 
people to know, and I do think it gets at Senator Feinstein's 
retroactivity question to some degree, which I think is going 
to be very difficult, and that is that perhaps--I am just 
guessing this, judges, but because of the sentences for crack, 
that sometimes those sentences were used, weapons charges may 
have been dropped even though a weapon was present. And so the 
retroactivity argument becomes more difficult in those cases. 
You may have a severely violent case or a gun case, but because 
the crack sentence was so long, perhaps those charges were 
dropped. Do you want to address that at all? It just 
complicates saying, well, because someone was put in for a 
crack charge for this long, they should be let out, when, in 
fact, maybe there were other factors there.
    Mr. Breuer. Senator, I think that is exactly right. I defer 
to the judges on the implementation, but, of course, any issue 
of retroactivity will have to be case by case for the very 
reasons you have identified.
    Senator Klobuchar. Judge.
    Judge Hinojosa. Senator, I do want to make it clear that 
the guidelines themselves do provide some enhancements already 
with regards to a weapon involvement if you are not convicted 
under the statute. They also provide enhancements for use of 
minors, enhancements for roles in the offense, as well as some 
of the other matters that would be of concern to individuals. 
They are provided within the Sentencing Guideline system with 
regard to some of these enhancements that have been talked 
about with regards to certain specific characteristics of the 
way a defendant may be involved in a particular case.
    And so some of these individuals may have already gotten 
the weapon enhancement under the Sentencing Guidelines even 
though they were not convicted under the statute itself.
    Senator Klobuchar. I understand. My focus here is that you 
may have some violent offenders that were simply convicted 
under this crack law, and so it just makes it much more 
complicated to look at the retroactivity issue.
    The other thing that was raised and Senator Graham 
addressed was just other reasons to look at changing this 
disparity, and one of them is that the judges have been 
downgrading the sentences out of a realization of what they 
perceive is this unfairness, as well as the fact, which he 
referred to, that juries are aware of this in many parts of the 
country and have reactions to this, or people. And I am very 
interested in mostly effectively using our laws and making sure 
they are targeted, as Mr. Breuer pointed out, at where we need 
them. But could you comment a little bit about that? I think it 
was you, Judge Hinojosa, that brought up the issue of the 
judges' departing downward.
    Judge Hinojosa. There has been some since Kimbrough and 
Spears. Post Spears, the departure or variance rate that is not 
Government sponsored is about 18 percent in crack cocaine 
cases, which is higher than it had been. It was probably 3 
percent lower than that prior to that, and so there has been an 
increase. That is only with 900-some cases that have come in 
since Spears that we have been able to code. We will continue 
to put out that information. It is different than it has been.
    We have seen about five cases where judges actually decided 
to use their own ratio. Some have used 20:1. Some have used 
1:1. And so this may lead to disparity with regards to how 
individual judges look at what they feel might be the ratio. 
And so we are coding that information and would certainly make 
it available.
    Senator Klobuchar. Thank you.
    Judge Walton, do you want to comment at all on this?
    Judge Walton. Which particular----
    Senator Klobuchar. Well, just on the judges' departing 
downward, maybe your own feelings or changes in your feelings 
about this disparity in these laws over time.
    Judge Walton. Under our current system, I do have concerns, 
because I know within my own courthouse there is a difference 
of view of what that disparity should be. So you do have some 
judges going 1:1, 10:1, 20:1, and I think that is problematic 
because I think disparity is a problem within our system. So, 
to the extent that there can be greater uniformity, I think 
that is important.
    On the issue of retroactivity, I agree, that is a 
significant issue. There are a lot of factors that have to be 
weighed in assessing whether it would be appropriate to do 
that, and one of the things I do not think I would be saying 
off the reservation on behalf of the court system to say this 
is that if retroactivity is a reality, then I would hope that 
the needs of the court financially would be considered, because 
if we need additional resources in order to carry it out, I 
would hope that they would be made available to us.
    Senator Klobuchar. OK. I could tell you that I totally 
understand that from seeing court cases, but, again, the public 
safety issues with making sure that any retroactive changes 
that are made are going to also be, I think, foremost in 
people's minds. But thank you.
    Judge Walton. But I think one thing that is important, if 
you look at the statistics that Judge Hinojosa indicated with 
the experience of what has happened now in reference to what 
the Commission did, there has not been a significant number of 
people who have been released who have come back into the 
system. According to the statistics, it is only about 0.6 
percent of the individuals released pursuant to the action of 
the Commission who have committed new offenses and come back 
into the process because of that.
    Senator Klobuchar. Right, and I am a big supporter of 
treatment. I come from the land of, well, 10,000 treatment 
centers--that is what we say--in Minnesota, and we believe in 
it. My own father is a recovered alcoholic, so I completely 
believe we need to look at that and drug courts as part of our 
laws, and that there are much better ways we can handle this. 
But at the same time, I want to make very clear to the public--
and Mr. Breuer did that--that we are not talking about 
decriminalizing that, that we are going to move very carefully 
as we look at any talk of retroactivity, and that we do 
understand that crack cocaine is, as Senator Graham said, a 
scourge on our community and that we want to do everything to 
get people off of it and to make sure the laws are enforced and 
to focus very much on these violent offenses and gun offenses, 
while understanding that this disparity has not been fair and 
it has not seemed to have been effective in how we enforce our 
drug laws.
    So thank you very much, all of you.
    Chairman Durbin. Senator Kaufman.
    Senator Kaufman. Mr. Chairman, I want to thank you for 
holding this hearing. I think this will go a long way to deal 
with popular misperceptions about the disparity between the 
crack cocaine and powder cocaine differences, and I think it is 
a real service.
    Mr. Breuer, I want to follow up on Senator Klobuchar's 
question. I know about the children, but what are the things 
that we have learned since 1986 that make us now, the 
Department, to feel that it is important to remove this 
disparity?
    Mr. Breuer. Well, Senator, where we were right, of course, 
and what we have known throughout is that crack cocaine, drugs 
in general, such as crack cocaine and powder cocaine, are, in 
fact, a scourge and they are very bad for the community and 
they can be associated with violence. What we have learned is 
that if we punish based on a class as opposed to case specific 
or one form versus another, then, in fact, what we begin to do 
is deteriorate the public's confidence in our justice system, 
as Judge Walton so eloquently described, and that cannot be the 
case.
    We need to protect our citizens. They need to know there is 
certainty of punishment. And they need to know that we are 
putting in jail those who should be in jail as opposed to, as 
Judge Walton said, young African-American men who have no 
business being in jail perhaps for as long as they are based on 
the crime. That is a terrible injustice. I think that is the 
lesson we have learned.
    Senator Kaufman. To follow up on that, one of the findings 
in the Sentencing Commission's most recent report to the 
Congress said that more than one-third of all crack cocaine 
cases in 2006 involved fewer than 25 grams while powder cocaine 
cases typically involved far larger quantities.
    Can you kind of talk about how that happens?
    Mr. Breuer. Well, Senator, I think what has happened under 
the current regime is that, in essence, there is sort of a de 
facto process, and because the quantities are lower in some 
cases, people are targeted because there is a sense that 
perhaps they are more involved in other kinds of criminal 
activity.
    The result, however, is somewhat artificial. If we had a 
1:1 level, then, in fact, I think what we would find is 
sentences throughout would be proportional based on what they 
should be. Now I think what is happening is people are using 
their own independent judgments to try to take the system that 
most people think is not working and try to make it work a 
little better. But that is a very imperfect system.
    Senator Kaufman. Thank you. Now, we know, talking about 
doing away with the disparity--and I think there seems to be 
good agreement on that. I mean, do you have any thoughts about 
whether we are going to raise the current powder levels or 
lower certain crack levels in order to get to what we should be 
doing? Just your thoughts on that.
    Mr. Breuer. Well, Senator, based on the Commission's work 
and the work that we have heard about, I am not aware of any 
compelling arguments--at this point, none--to say that we 
should raise the powder cocaine penalties or raise the powder 
cocaine. But I must say that the working group will do what we 
have said it will do. It will remain open to all issues, and so 
if there are those arguments, we want to hear them, and we want 
to assess them. But at this point, I have not heard any 
compelling arguments there, and I do not think the Commission 
in its work has found any.
    Senator Kaufman. Thank you for that.
    Judge Hinojosa, on the subject of violence, does your data 
suggest that the violence associated with crack distribution 
has changed at all over the years?
    Judge Hinojosa. The last coding project that we did with 
regards to violence was that there was a slight difference 
between crack and powder cases. It was not present in about 89-
point-some percent of the crack cases and not present in about 
93 percent of the powder cases. And so that was a coding 
project with regards to 2005 cases.
    The other thing that we judge it by is the weapon 
enhancement, which is applied in about 28.1 percent of the 
crack cases and 16.9 percent of the powder cases. And so, 
therefore, that is the information that we do have.
    Senator Kaufman. All right. Thank you.
    Judge Walton, obviously, in addition to your long service 
as a trial judge, you served with the Office of National Drug 
Control Policy. How has that experience affected your positions 
and your views on this issue?
    Judge Walton. Well, as I indicated earlier, I did advocate 
a disparity when I worked in the Drug Office because of the 
information we had available to us at that time. As has been 
indicated, a lot of that information we know was incorrect, and 
so it has altered my view about the disparity, coupled with the 
fact of my experience that I have had with people who would 
come into the process, like jurors, who did not want to be a 
part of the process because of the disparity.
    So I think, as I have indicated before, that public 
confidence is critical if our laws are going to be respected 
and followed, and I think this adversely impacts the ability to 
have that occur.
    Senator Kaufman. Great. Thank you all for your comments.
    Again, Mr. Chairman, thank you for holding this hearing.
    Chairman Durbin. Thank you, Senator Kaufman, and I would 
like to thank this panel for their testimony. I believe this 
has been long overdue, and your statements are going to help us 
understand this issue and I hope motivate us to move forward. 
Some of the little huddles that you have seen taking place here 
are among Senators who are thinking about what is the next 
step, so we are consciously thinking of an active response to 
your suggestions today, and I thank you for motivating and for 
joining us.
    Judge Walton. There is one statement I would correct. I 
said that it was 0.6 percent who have been rearrested who had 
been released. It actually is 0.6 who were revoked based upon a 
rearrest.
    Chairman Durbin. I see. Thank you very much, Judge Walton. 
Thank you all.
    Chairman Durbin. We now invite the next panel of three 
distinguished witnesses to join us, and before swearing them 
in, while they are taking their seats, I will give you a little 
background on each one of them.
    John Timoney is going to testify first. He is the Chief of 
Police of the Miami Police Department. He has been in that 
position since January of 2003. His law enforcement career 
began in 1967 when he joined the New York City Police 
Department. After serving in a variety of leadership positions 
during three decades with NYPD, Chief Timoney was for 4 years 
the police commissioner of Philadelphia, where he commanded a 
force of approximately 7,000 officers. He is President of the 
Police Executive Research Forum, serves on the Board of Penn 
Institute for Urban Research in Philadelphia University, Co-
Chairman of the FBI's South Florida Joint Terrorism Task Force. 
His 40 years of local law enforcement experience give him a 
unique perspective on these issues. I thank him for being here.
    Asa Hutchinson is a familiar face here on Capitol Hill, 
currently practicing law at the Hutchinson Law Group which he 
and his son founded. He began his legal career as a city 
attorney in the famed Bentonville, Arkansas, before he was 
appointed by President Reagan as U.S. Attorney for the Western 
District of Arkansas. He served in the U.S. House of 
Representatives from 1997 to 2001, appointed by President Bush 
as Administrator of the Drug Enforcement Administration in 
2001; 2 years later, he became the first Under Secretary for 
Border and Transportation Security at the newly created 
Department of Homeland Security. He has an undergraduate degree 
from Bob Jones University and a law degree from the University 
of Arkansas. Mr. Hutchinson, welcome.
    Cedric Parker, one of seven children, born in Tampa, 
Florida, grew up in Alton, Illinois, home of the Red Wings. 
Upon graduating from Southern Illinois University, he joined 
the U.S. Army and served his country for over 7 years. Mr. 
Parker, after leaving the military, returned to Alton, 
Illinois, where he managed a residential diagnostic and 
treatment facility for troubled and abused adolescents. He met 
his wife, Christie, there, who is a psychotherapist in private 
practice. Their four children--one son and three daughters--
range in age from 24 years to 11 months.
    That is a wide spread there, sir. Mr. Parker, thank you for 
the sacrifices you made to be with us today.
    He is here to testify about his sister, Eugenia Jennings, 
and before I--I will wait and show that a little later. We have 
a picture here of the family which we would like to show when 
the time comes for your testimony.
    If I could ask the three witnesses to stand to be sworn in, 
I would appreciate it. Do you solemnly swear that the testimony 
you are about to give is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Chief Timoney. I do.
    Mr. Hutchinson. I do.
    Mr. Parker. I do.
    Chairman Durbin. Thank you. Let the record indicate that 
all the witnesses responded in the affirmative.
    Chief, I am going to let you open up. The floor is yours.

  STATEMENT OF JOHN F. TIMONEY, CHIEF OF POLICE, MIAMI POLICE 
                   DEPARTMENT, MIAMI, FLORIDA

    Chief Timoney. Thank you very much, Mr. Chairman, and good 
morning to the distinguished members of the Committee. I want 
to thank you for affording me the opportunity to testify 
regarding reforming the Federal cocaine sentencing laws, 
commonly referred to as the ``crack-versus-powder cocaine 
controversy.'' As you mentioned in your introduction, I have 
spent the last 40 years in local law enforcement--the last 6\1/
2\ years as the Chief of Miami, 4 years before that as the 
police commissioner of Philadelphia, and then 29\1/2\ years in 
the NYPD, beginning as a young cop in the South Bronx and 
working my way up through the ranks to become the youngest 
four-star chief in that department's history. So I come at this 
as a police professional.
    Others this morning have testified regarding the 100:1 
disparity, and you had very good graphics there, Senator. They 
testified to the efforts of many, including the United States 
Sentencing Commission, to try to rectify or mitigate the 
disparity. To date, none of these efforts have been effective, 
having, for whatever reason, fallen on deaf ears. I am here 
today to lend my voice to the chorus pleading with Congress to 
right a wrong.
    I have no idea if the original reasons for establishing 
this dichotomy that somehow crack cocaine was more powerful 
and, therefore, deserved a stiffer sentence--I did not know if 
they were right or wrong. I have heard the arguments on both 
sides. But what I can tell you from a practitioner's 
perspective is that the results or the unintended 
consequences--and I do not think the consequences were ever 
intended in this situation. But the results have been one 
unmitigated disaster.
    Making an artificial distinction about a particular form of 
the same drug is a distinction without a difference, and that 
is bad enough. But when the distinction results in a dramatic 
disparity in sentencing along racial lines, then that 
distinction is simply un-American and intolerable. Furthermore, 
it defies logic from a law enforcement perspective, and here is 
what I mean.
    If I arrest a guy carrying 5 grams of crack cocaine--that 
is less than a fifth of an ounce--I figure this guy is a low-
level street corner dealer, or maybe he just has a good amount 
of crack for personal consumption. But if I arrest a guy with 
500 grams of powder cocaine--and that is about half a kilo--I 
assume that this individual is a serious trafficker in 
narcotics. The notion that both of these guys are equal and 
deserve the same sentence is just ludicrous on its face.
    Now let me take my two guys and show you how the monetary 
value of their illegal contraband plays out in the street. In 
Miami today, you can purchase 5 grams of crack for around $150. 
In New York and in Philadelphia, my prior two cities, it will 
cost you around $200--a little more expensive. In Miami today, 
my undercover officers for powder cocaine spend between $700 
and $1,000 per ounce, or around $14,000 for half a kilo, which 
is 500 grams. In New York and in Philadelphia, probably $2,000 
more. The bottom line is the difference--it is a hell of a 
difference. It is $150 versus $14,000.
    Now, if you were to present those numbers to the average 
eighth grader, they could figure out who is the narcotics 
trafficker and who is not. It is quite simple. And the answer 
is quite simple.
    Finally, when unfair laws are passed, police officers see 
the impact at the local level. Citizens do notice the things 
you do up here in Washington, and they do play out in the 
street. And in this case, the people become cynical.
    I remember back in 1974 when I was a young cop in the South 
Bronx, and President Ford issued the pardon to former President 
Nixon. I was amazed at how many times that issue was thrown up 
in our face as we made arrests on the street. We would get the 
accusation: ``Oh, Nixon gets pardoned, but the poor people get 
arrested.''
    Now, I know a lot of that was just street-level nonsense 
and jargon, but the point was well taken. And police 
departments across America face a much more difficult challenge 
gaining the trust of their communities if there are glaring 
inequities in the justice system that are allowed to persist. 
These inequities breed cynicism, mistrust, and should be 
eliminated.
    Thank you, Senator, for your indulgence today.
    [The prepared statement of Chief Timoney appears as a 
submission for the record.]
    Chairman Durbin. Thank you for your testimony.
    Mr. Hutchinson, you have an opportunity now, 5 minutes, and 
we, of course, will enter into the record any written statement 
you would like to submit. Please proceed.

STATEMENT OF ASA HUTCHINSON, ASA HUTCHINSON LAW GROUP, ROGERS, 
    ARKANSAS, AND FORMER ADMINISTRATOR, UNITED STATES DRUG 
                       ENFORCEMENT AGENCY

    Mr. Hutchinson. Thank you, Senator. I am delighted to 
appear before your Committee. I am grateful for the invitation. 
I am here today, of course, reflecting my background as a 
Federal prosecutor in the 1980s, when we really commenced the 
strong effort against illegal drugs. I am reflecting my 
background as a Member of Congress when I had oversight 
responsibilities on the House side for some of our law 
enforcement agencies; and then, most significantly, as a former 
Administrator of the U.S. Drug Enforcement Administration. In 
all of those recent positions, Congress and the DEA, I have 
been a long-time advocate for reducing the sentencing disparity 
between crack and powder cocaine. I have advocated this 
position for a couple of very simple reasons:
    One, the justice system should be about fairness, and I do 
not believe that this sentencing disparity reflects the 
fairness that is required.
    Secondly, it obviously has a disparate racial impact on our 
communities and undermines what we are trying to accomplish in 
the justice system.
    Today I express my support for legislation for Congress 
addressing this disparity, and I believe that this is the time 
that this can be done. The reasons that I am strongly 
advocating congressional action in this regard are that I see 
the impact of the disparity as undermining the confidence, 
credibility, and cooperation that are important in our criminal 
justice system; and also--and I think this has not been talked 
about enough--the present disparity skews law enforcement 
priorities. It encourages law enforcement to pursue lengthy 
sentences when the offenders are not high-level dealers. In 
Arkansas, where I hail from, I want to cite this particular 
statistic: 41 percent of the drug-related Federal offenses in 
Arkansas are crack related--41 percent--and that is compared to 
a national average of 20 percent. Powder-related Federal 
offenses in Arkansas are 12 percent of all Federal offenses, or 
drug-related offenses. That compares with 22 percent 
nationwide.
    In Arkansas the African-American population is 
approximately 16 percent, but we have a higher percentage of 
crack-related offenses compared to the national average. I 
believe that congressional sentencing priorities impact law 
enforcement patterns and practice to our detriment in 
effectively fighting the war on drugs.
    Now, perhaps the easier part of this debate is to convince 
policymakers that we have got to do something. The more 
difficult aspect is to address how to do it, and what is the 
right way to do it. Let me just offer a couple of views in that 
regard.
    First, the issue of retroactivity has been discussed today, 
and I applaud Congress that in implementing the changes of the 
Sentencing Commission last fall you did not reverse the 
retroactive application. As Judge Reggie Walton, who previously 
testified, has said, ``I do not see how it is fair that someone 
sentenced on October 30th gets a certain sentence when someone 
sentenced on November 1 gets another sentence.'' And so 
whatever changes you make, I do believe have to be applied 
retroactively.
    The most strenuous objection comes from the Department of 
Justice, who says it takes extraordinary U.S. Attorney 
resources and court resources to process these. The courts do 
not object, and since they have gone through the resentencing 
on many, you have not seen any mass resignations of U.S. 
Attorneys or Assistant U.S. Attorneys saying they are 
overworked. So the process has worked, and, most importantly, 
when you are dealing with an issue of fundamental fairness, 
adjust the resources, apply the resources, make changes where 
necessary to make sure that the individualized approach can be 
handled and they can be reviewed.
    Second, I would suggest that in terms of adjusting the 
disparity, mandatory minimum sentences required of cocaine 
traffickers should be more clearly directed toward those who 
are engaged in the business of trafficking, and it should not 
all be quantity based. Right now you have got the sentencing 
disparity because it is all based upon quantity. Well, a mule 
who is transporting a large load of cocaine across the border 
is not the high-level trafficker we actually want to get. We 
have got to adjust our sentencing priorities to include 
different criteria rather than simply the quantity aspect.
    Under the current formula, a dealer charged with 
trafficking 400 grams of powder worth approximately $40,000 
could receive a shorter sentence than a user he supplied with 
crack valued at $500. Obviously, there has to be more than 
quantity. We have to adjust that criteria. Quantity should be 
one factor, but it has been an unreliable ally in determining 
sentencing priorities and in determining law enforcement 
priorities.
    And, finally, whatever Congress does in terms of changing 
the sentencing structure, give it time to work, and then listen 
to the Sentencing Commission as they review what has been 
accomplished. And, obviously, anything we do has to be subject 
to adjustments down the road. Make the change and then let us 
evaluate the change after we give it an opportunity to work.
    Thank you, Mr. Chairman, Senator Hatch, for the opportunity 
to appear before the Committee.
    [The prepared statement of Mr. Hutchinson appears as a 
submission for the record.]
    Chairman Durbin. Thank you, and we will have a few 
questions for you.
    Mr. Parker, I want to give you a chance to testify. As I 
mentioned at the opening, Mr. Parker is here testifying on 
behalf of his sister, Eugenia Jennings, and before you begin, I 
wanted to show a picture of your sister's children. I would ask 
you to tell us their names and ages, if you will, please.
    Mr. Parker. OK. To the left is Radley. That is her son, he 
is 14. In the center, Radisha Berry. And to the right is 
Cardez. He is the one that lives with me. And that is my son, 
front and center.
    Chairman Durbin. Thank you very much. Please proceed with 
your testimony.

          STATEMENT OF CEDRIC PARKER, ALTON, ILLINOIS

    Mr. Parker. First I want to thank you, Chairman Durbin and 
Senator Hatch, for giving me the opportunity to testify before 
you today. Of course, you know my name is Cedric Parker. I am 
from Alton, Illinois, and I am here to tell you the things my 
sister, Eugenia, would say if she was here today. The severity 
of the mandatory minimums and especially the sharp disparity 
between those for crack and powder cocaine have touched my 
family directly. Eugenia cannot be here because she is in 
Federal prison for selling crack cocaine.
    I spoke with my sister when I learned you wanted to hear 
from me, and these are the things she would like you to know. I 
want to say first that Eugenia does not excuse her conduct or 
hide behind her problems. She took immediate responsibility for 
her actions, and I know a day does not go by that she is not 
sorry for what she has done.
    Eugenia is the youngest of seven and our mother's only 
daughter. She was born and growing up as I was leaving Alton 
for college and then eventually to the military. As I began to 
hear about all the things that were happening to my little 
sister, I tried repeatedly to intervene from overseas and find 
a safe harbor for her, but I could not.
    Our mother was terribly challenged by illness, poverty, and 
other problems that made it difficult to provide us a stable 
family and a safe environment or to get help. When Eugenia was 
very young, our mother would leave her with the Smith's, their 
family friends that were in our projects, until she stopped 
bringing Eugenia home hardly at all.
    Eugenia had an unspeakable childhood. Her surrogate mother, 
Annie, beat her and emotionally brutalized her from the time 
she arrived. Annie's children all abused drugs and alcohol, and 
when Eugenia was only 7 years old, she was left for days with a 
prostitute who sexually assaulted her, and also a teenage 
neighbor of the Smiths. A year later, one of the her half-
brothers sexually assaulted her, and when she became a 
teenager, her stepfather tried to rape her.
    Eugenia escaped the Smith, household when she was only 13. 
She dropped out of school and went to live with her boyfriend 
in a house where drugs and alcohol were the norm. She began 
abusing drugs and became addicted to crack by the time she was 
15. She stopped using when she learned she was pregnant, but 
after giving birth at the age of 16, desperate for money to 
support her and her daughter, she began selling and using 
drugs. Of course, she was eventually caught.
    Eugenia was convicted in Illinois in 1996 for two drug 
sales totaling less than 2\1/2\ grams of crack cocaine. While 
in prison, she sought treatment for her drug addiction and 
resolved to remain drug free. She studied for and completed her 
GED. She gave birth to her youngest son Cardez while she was 
incarcerated.
    Eugenia tried to live up to her commitment. But following 
her release from prison in 1999, she relapsed again and began 
using drugs and alcohol.
    In June of 2000, Eugenia was arrested for trading crack 
cocaine on two different occasions for designer clothes. One 
sale involved 1.3 grams, and the second, a few days later, 
involved 12.6 grams.
    Eugenia was charged in Federal court with two counts of 
distributing crack cocaine. She accepted responsibility and 
pleased guilty. The Federal prosecutor decided to charge her as 
a so-called career offender. A career offender is someone who 
has two or more prior felony drug offenses. Her two small 
Illinois State prior convictions were enough to treat her as a 
major drug kingpin, driving her sentence from the mandatory 
minimum of 5 years to a sentence of almost 22 years. My sister 
was barely 23 years old and the mother of three young children 
when she was sentenced in January of 2001 to over two decades 
behind bars.
    Had Eugenia been sentenced for powder cocaine instead of 
crack cocaine, even as a career offender, her sentence would 
have been less than half of the one she received for crack 
cocaine. Today she would be getting ready to come home, 
probably already in a halfway house. She will not be released 
from prison until 2019.
    Eugenia has worked very hard while in prison to better 
herself and maintain ties with her children. They correspond 
regularly, and what little money she has managed to earn, she 
has sent home to them for birthdays and holidays. My sister has 
never been in trouble in prison and is very well regarded by 
staff and other prisoners. She is an avid student and a model 
employee. She is involved with supporting battered women and is 
a member of the Youth Awareness Program, speaking with young 
people about the dangers of drugs. After a lifetime of 
substance addiction, Eugenia is proudly sober.
    It strikes me that whatever the Government had hoped to 
achieve by locking Eugenia up has been accomplished, and yet 
she still has 10 more years than someone convicted of powder 
cocaine. My sister's children, 11, 14, and 15, have only seen 
their mother once since she has been in prison.
    My sister is a remarkable woman of courage and principles, 
and I would give anything not to be here today to tell you this 
sad story, but I hope that my words will convince you to change 
this terrible law.
    I want to leave you not with Eugenia's words or mine, but 
with the words of the Honorable G. Patrick Murphy, who 
sentenced my sister. Here is what he told her:
    ``Mrs. Jennings, I'm not mad at you....The fact of the 
matter is, nobody has ever been there for you when you needed 
it. Never. You never had anyone who stood up for you. All the 
Government has ever done is just kick your behind. When you 
were a child and you were being abused, the Government wasn't 
there. When your stepfather abused you, the Government wasn't 
there. When your stepbrother abused you, the Government wasn't 
there. But when you had a little bit of crack, the Government's 
there.''
    ``And it is an awful thing, an awful thing, to separate a 
mother from her children. And the only person who had the 
opportunity to avoid that was you....At every turn in the road 
we failed you. And we didn't come to you until it was time to 
kick your butt. That's what the Government has done for Eugenia 
Jennings.''
    I am here to bring you Eugenia's message to end the 
sentencing gap between crack and powder cocaine. It causes 
racial disparities in sentencings, and Eugenia has witnessed 
this every day. It also results in unduly harsh sentences for 
people whose only crime is selling the same drug but only in a 
different form. The fact that the 13 grams of drugs that my 
sister sold were the crack form and not the powder form of 
cocaine surely cannot be enough to justify adding a decade to 
an already lengthy sentence.
    Thank you for hearing me.
    [The prepared statement of Mr. Parker appears as a 
submission for the record.]
    Chairman Durbin. Mr. Parker, thank you, and, Mr. Hutchinson 
and Mr. Timoney, thank you as well. That was powerful 
testimony. Powerful.
    Tell me about her kids. How are they viewing this? And how 
are they doing without her for 10 years?
    Mr. Parker. It was very difficult for them in the 
beginning--actually for several years. They had a lot of 
problems in school. The boys, you know, I guess they feel 
abandoned, so they started having troubles with pretty much 
dealing with women. They felt abandoned by her. And, you know, 
I stay in contact with them. I see them every day, help them 
with homework.
    The youngest, he lives with me, so I have been raising him. 
He went from D's and F's to honor roll now, and he is enjoying 
life. They all are doing a little better now. But, you know, 
they really miss their Mom. I cannot replace their Mom, or 
their father. Their father is not around. So it has been very 
difficult for them.
    Chairman Durbin. Chief Timoney, I am sure you are well 
aware of stories just like this.
    Chief Timoney. Yes, sir.
    Chairman Durbin. In the course of your professional career 
as chief in Philadelphia and now in Miami. And I want to thank 
you for your testimony because it really means a lot when a law 
enforcement professional will step up and use the words you 
did, you know, to call this ``one unmitigated disaster,'' which 
you said, ``un-American,'' ``intolerable,'' ``defies logic.''
    So when you hear from the Justice Department about 
eliminating this disparity and bringing it down to a 1:1 ratio, 
I would like to know your response or reaction.
    Chief Timoney. I actually do not think there is any other 
option. Any other option is a false distinction. So if you go 
10:1, 20:1, it is the same drug, just manufactured differently. 
And I think whether it is 100:1 or 10:1, you are going to have 
that cynicism. In fairness, it needs to be 1:1, and as Mr. 
Hutchinson pointed out, we want to get the right people, the 
people who are profiting, the profiteers, the traffickers, not 
some poor person that did not--you know, that bought too much 
or had too much on them to meet some really crazy guideline of 
5 grams, which really is not a lot.
    You know, I was a young cop in the South Bronx. Just to 
make you all feel better regarding your votes in 1986, in the 
early 1970s in the Rockefeller law, the same thing happened in 
New York. And guess what? The same results happened. Mules or 
some grandmother or housewife that was asked to hold something, 
and if it met the proper weight, there was no judicial 
discretion. You had to go away. And, finally, last week, 
Governor Paterson has signed a bill revoking the Rockefeller 
laws. I think this Congress should do the same.
    Chairman Durbin. So you heard Senator Graham earlier, and 
he expressed a sentiment we all feel. We want fairness and we 
want justice, but we want to do something smart to reduce the 
use of narcotics.
    Chief Timoney. Right.
    Chairman Durbin. You have been on one end of this 
conversation, risking your life in New York and Philadelphia 
and Miami, and watching your men and women in uniform doing the 
same every day because of the scourge of drugs in America.
    What is the smart thing to do, assuming we get this one 
right and get this disparity fixed? But what is the smart thing 
for us to do so we can say to the American people we are not 
going soft on drugs here, we are going to go at this a 
different way, a smarter way that could be more effective? You 
are on the firing line. Your men and woman are. What do you 
recommend?
    Chief Timoney. Two things. I think, one, those that are 
profiting, making money, deserve to go to jail. I think as far 
as sentencing, there are lots of aggravating factors you could 
put into the law, such as possession of a gun, violence, by a 
school, things of that nature.
    But when it comes to what my mother would say, the ``poor 
unfortunates,'' those that are addicted, that use it, they are 
sick, then I think the right option is treatment. But use the 
criminal justice system as a lever to force them into 
treatment.
    I did something like that in Philadelphia. It was 
successful. I do not think it was continued after I left. But 
what we did, when we would do these--I do not want to call them 
``round-ups,'' but you would do an operation to get sellers, 
but we would also get some users. We had a drug treatment 
center, and with the concurrence of the D.A., we told them, 
``Here is your choice. You can come with us now to jail, or you 
can go over here and register with this drug clinic.'' And most 
of the time they went over to register with the drug clinic.
    Now, the problem was there was not enough money available. 
There was not enough treatment. But I think you have to do 
both. You need to be tough on the enforcement end, but on the 
treatment end, I think you need to have a heart.
    Chairman Durbin. What do you think about the fact that so 
many people are in prison today for drug-related crimes, many 
of whom were addicts themselves, and most of whom receive 
little or not treatment or counseling once incarcerated?
    Chief Timoney. You know, whether it is treatment for drugs 
or education, you really have a captive audience--I hate to 
play that pun--and why wouldn't you use that year or 2 years or 
3 years to create some good in there? So if it is drug 
treatment, by all means, give them that, but also the 
education. What we see in Miami and other cities are young men 
going in, late teens, early 20s, do not know much, do not have 
a high school education. But the one thing they learn in there 
is how to be better criminals when they come out. And I am not 
a softie, but that is the reality that we face. And, you know, 
it is no surprise that they come out and reoffend within 3 to 6 
months, because there has been no effort--you know, the non-
sexy part of the criminal justice system is the corrections 
part. Everybody wants to--and I like getting the resources to 
the cops. We are the sexy part. But the hard part is the back 
part, the corrections, and not enough money goes there.
    Chairman Durbin. That is your point, Mr. Hutchinson. You 
talked about resource allocation here and putting a lot of 
resources and going after the crack cocaine offender instead of 
going after what you think--and I happen to agree--are the real 
sources of the problem. And I thought you made an interesting 
challenge to us, and I am going to challenge you right back. If 
you do not go after it by quantity--you have been around this 
as a prosecutor and at the Federal policy level--what do you 
think is a more effective way to go after this scourge of 
narcotics? How would you write the law now that you have seen 
this from so many different aspects?
    Mr. Hutchinson. Well, the Sentencing Guidelines have built 
in different criteria that they give credit if you are in a 
managerial role or you have a sentence enhancement, you know, 
if you are profiting, if you are financing, if you have got 
financial assets that you have invested as a result of the drug 
trade. All of these indicate that you are--whether you are 
kingpin or whether you are a mid-level dealer, it shows that 
you have a high level of culpability and responsibility.
    Those are the types of factors that I think Congress should 
build into targeting our resources, and obviously, you build 
the sentencing structure, but the law enforcement officials are 
going to take that and say this is the priority. And so that is 
where we ought to be investing our resources.
    As I indicated, in Arkansas--and I think this is reflected 
nationwide--whenever you can put somebody away for 5 to 10 
years on a mandatory minimum for crack cocaine, well, that is 
rewarding law enforcement with long penalties. We want to 
encourage them to go beyond that to the higher-level dealers, 
and I think it starts with, if you are going to have mandatory 
minimums, let us not just have it quantity based but have it 
based upon the real role they play in the trafficking 
enterprise.
    Chairman Durbin. You heard Mr. Parker's story about his 
sister. She does not sound to me like a big trafficker in 
drugs. The story sounds to me like a very vulnerable woman who 
faced addicting and a lot of bad choices and now is sentenced 
to 22 years in prison as a result of it. So let me ask you to 
respond to his story from his family's side.
    Mr. Hutchinson. Well, his point is well taken that if it 
had been powder cocaine, then it would have been probably half 
the sentence. But the fact is that if it had been powder 
cocaine, a Federal prosecutor probably would have looked at 
that and said let us defer this to State prosecution; it is not 
a serious enough offense even to pursue.
    We do not know all the factors, but I think that very well 
could have been the judgment. And if it, in fact, had been in 
State court then, I would hope they would look at this and say 
this is a lady with an addiction problem. Primarily she has an 
addiction problem. And let us make sure that she has the 
treatment necessary to get over that addiction. And that is not 
to minimize the conduct. There is a second offender element 
here. There is a selling offense that is here. But, clearly, 
his heart-wrenching story really cries out to Congress for the 
need to remedy this disparity.
    Chairman Durbin. Thank you.
    Senator Hatch?
    Senator Hatch. Well, I want to thank all three of you for 
being here. I am in the middle of a big Finance Committee 
markup--not markup but session on health care. But I have 
appreciated all the testimony I have heard.
    Chief Timoney, I think you have added a lot here today, and 
nobody is going to think you are a pushover, so do not worry.
    [Laughter.]
    Senator Hatch. And, Asa, you have been one of the more 
erudite people around here for years, and, frankly, I am very 
pleased to listen to your testimony.
    Mr. Parker, I empathize with you and your sister. I think 
we have far too many people who are drug addicted in jail. We 
have got to find a better system than what we have now because, 
generally, prison does not necessarily help them get over their 
addictions. It can in some areas where you have enlightened 
leadership and so forth, but there are a lot of areas where we 
do not have enlightened leadership and where it does not work.
    So I have been a proponent of trying to narrow this 
difference between crack and powder cocaine for years, and 
hopefully we can do something, Mr. Chairman, and get that 
changed this year. But, also, we need to go beyond that. We 
need to come up with a better way of handling these kids that 
otherwise have not had much of a chance, who get addicted and 
find some way, short of prison. In cases like Asa said, Mr. 
Hutchinson said, your sister, there are some other factors 
there that made them probably want to put her in jail for 
longer, but, still, I think we need a better system where we 
can hopefully do some things for these folks short of prison.
    That may be hoping for too much sometimes, but I have been 
thinking about this for a long time, and we are not winning 
this war on drugs at all, in my opinion, and we need a better 
system. Hopefully we can in this Judiciary Committee work 
during this coming year or so to try and come up with a better 
system that makes sense and yet would be properly supervised 
and managed.
    But thank you, Mr. Chairman, I appreciate it. And I am 
going to keep helping here and see what I can do to work with 
the Chairman and others to resolve this very, very difficult 
set of situations.
    Chairman Durbin. Thank you, Senator Hatch. I know you have 
important responsibilities in the Finance Committee. If you had 
been here earlier, you would have heard me say something nice 
about you on the record.
    [Laughter.]
    Senator Hatch. Somebody tell me what he said.
    No, he is a good friend--tough as nails, but I am not 
exactly considered a pushover myself.
    Chairman Durbin. Thanks a lot.
    Senator Hatch. I appreciate it.
    Chairman Durbin. Chief Timoney, I am not going to just 
single you out, but if we could have the help of law 
enforcement professionals like yourself in thinking about how 
to respond to this and perhaps doing the right thing here and 
figuring out what else by way of sentencing or policy--Mr. 
Hutchinson as well--that we can change that might really help 
us do something effective to reduce drug usage, your voice and 
the voice of your fellow professionals could really make a 
difference in this conversation, and I hope you will accept 
that invitation if we get back to you.
    Chief Timoney. I will, and, Senator, thank you for the 
opportunity. I am also the President of PERF, and over here is 
our Executive Director, Chuck Wexler, who does an awful lot of 
work with the Federal Government. But as you move forward, if 
you need--I hope I am not speaking out of class, Chuck. If you 
need the assistance of PERF, because we represent most of the 
major chiefs across America, across the world really, that 
input of PERF by all means, call on us.
    Chairman Durbin. We need you and I thank you.
    Mr. Parker, thanks. Tell your sister we are thinking about 
her, and I hope you will share some of the things that were 
said today. And I hope it gives her some hope to carry on. 
Maybe at the end of the day there will be justice, and I would 
love to see her back with those kids as soon as possible. I 
think that would really be justice and fairness at this point.
    Mr. Hutchinson, thank you as well.
    There are a lot of statements that will be made part of the 
record here, without objection--and there is no one here to 
object.
    [Laughter.]
    Chairman Durbin. Since there are no further comments from 
our panel, I would like to thank you all for being here. The 
record will remain open for a week for additional materials, 
and written questions for the witnesses may be sent your way, 
which I would appreciate timely response to.
    As we close this hearing, I urge everyone to remember 
Eugenia Jennings' children--Radley, Radisha, Cardez--and also 
Judge Murphy's plea to Congress when he sentenced Ms. Jennings 
to almost 22 years in prison, and I quote, ``It is an awful 
thing, an awful thing to separate a mother from her children.''
    This hearing is adjourned.
    [Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]
    [Questions and answers and submission for the record.] 

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