[Senate Hearing 117-813]
[From the U.S. Government Publishing Office]
S. Hrg. 117-813
EXAMINING FEDERAL SENTENCING
FOR CRACK AND POWDER COCAINE
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
JUNE 22, 2021
__________
Serial No. J-117-24
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
54-573 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Grassley, Hon. Charles E......................................... 4
Booker, Hon. Cory A.............................................. 5
WITNESSES
Charles, Matthew................................................. 27
Prepared statement........................................... 48
Coleman, Russell................................................. 33
Prepared statement........................................... 63
Responses to written questions............................... 78
Garcia, Antonio.................................................. 29
Prepared statement........................................... 51
Responses to written questions............................... 82
Hutchinson, Asa.................................................. 9
Prepared statement........................................... 58
Responses to written questions............................... 87
LaBelle, Regina.................................................. 8
Prepared statement........................................... 55
Questions submitted with no response returned................ 72
Wasserman, Steven................................................ 31
Prepared statement........................................... 67
Responses to written questions............................... 92
APPENDIX
Items submitted for the record................................... 47
EXAMINING FEDERAL SENTENCING,
FOR CRACK AND POWDER COCAINE
----------
TUESDAY, JUNE 22, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room 106, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Feinstein,
Whitehouse, Klobuchar, Coons, Blumenthal, Booker, Ossoff,
Grassley, Cornyn, Lee, Cruz, Hawley, Tillis, and Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. The hearing will come to order. Today the
Senate is holding a hearing in this Committee on one of the
most indefensible disparities in our system of justice and the
bipartisan legislation designed to eliminate it once and for
all, The EQUAL Act. To start things off, I'd like to turn to a
video about the history of this disparity and the racially
disparate impact it's had.
[Video is shown.]
Chair Durbin. In November 1985, The New York Times ran a
front-page story warning of a ``new purified form of cocaine''
that had emerged on the streets of New York City. The article
characterized the drug as the wave of the future and quoted a
doctor who claimed that anyone who used it would be addicted
almost instantaneously. Over the next year, thousands of
articles and hours of breathless news coverage would be devoted
to the dangers of crack cocaine, but much of this coverage was
predicated on an outright falsehood, such as the notion that
crack is more addictive than powder cocaine or that it's more
likely to make its users violent.
Today, several decades removed from our mass panic over
crack cocaine, we know that powder cocaine and crack are simply
two forms of the same drug. Make no mistake, both are addictive
and dangerous. Once they reach the brain, they produce similar
physiological and psychological effects.
While the scientific consensus on crack has evolved over
the years, our Nation's drug sentencing policy has not. At the
height of the crack scare in 1986, facts fell victim to fear,
and fear inspired misguided and discriminatory policy. In
response to a nation in panic, we passed on a bipartisan basis,
a law that imposed a 100-to-1 sentencing disparity between
crack cocaine and powder cocaine offenses, the Anti-Drug Abuse
Act of 1986. To date--to this date, it is one of the worst
votes I ever cast. That legislation derived from a war-on-
drugs-era mentality that we could somehow incarcerate our way
out of a drug epidemic. That approach did not work with crack
cocaine. In fact, it has never worked.
In the 50 years since President Nixon declared our failed
war on drugs, drug use and drug availability has increased, our
Nation has endured a crack epidemic, a meth epidemic, and
currently an opioid epidemic. By now, I hope we all understand
that drug addiction is not a choice and just not a moral
failing, it is a disease. Instead of meeting the public health
crisis of addiction with care and compassion, we've met it with
punishment and penalties. The results have been devastating,
and when it comes to crack cocaine, we established a sentencing
disparity that has directly fueled the crisis of mass
incarceration in America.
During the first four decades of the war on drugs, our
Federal prison population grew by 700 percent, and the cost of
operating Federal prisons exploded by 1,100 percent. Those
bloated costs have diverted public safety resources away from
where they're needed and have made us less safe. Today, our
Nation is home to just 4 percent of the world's population and
about 20 percent of the world's prisoners. In America, we pride
ourselves as the land of the free, but the sad fact is, we have
the highest incarceration rate in the world. Worse yet, the
crack-powder disparity has exacerbated the systemic racial
inequities in our criminal justice system. We must bring this
injustice to an end, and we can begin by eliminating the crack-
powder disparity.
I'm confident we can achieve this on a bipartisan basis.
Over the years, I've worked with my Republication colleagues
like Ranking Member Grassley and even former Attorney General
Sessions to reduce the crack-powder disparity. In 2009, I
authored the Fair Sentencing Act. The bill I wrote would have
fully eliminated the crack-powder disparity, but to get it
across the finish line, I agreed to a compromise version with
then Senator Jeff Sessions that reduced the disparity from 100-
to-1 to 18-to-1. It was a good step forward, but not enough.
This lingering disparity means that a person arrested for
28 grams of crack--do we have that--I guess we don't have the
illustration. I'll skip that. As I've said, I'm confident we
can come together to finally resolve this injustice, because
there are other steps we have taken to address inequities in
our criminal justice system on an overwhelmingly bipartisan
basis, like the First Step Act. With that legislation,
Republicans and Democrats, with President Trump, worked
together to improve conditions in our Nation's prisons and
shorten mandatory minimum sentences for nonviolent drug
offenses.
We made the Fair Sentencing Act retroactive, allowing
thousands of people sentenced under the old 100-to-1 disparity
to petition for early release, including Matthew Charles, who
will speak to us today. Early evidence suggests that
retroactive application of the Fair Sentencing Act has worked
as intended. Last year, the Department of Justice reported that
the recidivism rate for those released under the First Step Act
was actually lower than historic recidivism rates.
This much is clear. Our past efforts of reform have been
bipartisan, and they're working. The task that now lies before
us is finishing the job we've started by eliminating this
disparity altogether. It has no basis in science. It's done
nothing to make us safer. It serves only to undermine trust in
our system of justice, especially among Black Americans, who
are six times, six times, more likely to be in prison on drug
charges than white Americans, even though the drug use is at a
similar rate between them. What's more, legal experts and
political leaders of all stripes agree Congress needs to finish
this job.
When I chaired a Subcommittee hearing on this issue in
2009, the Department of Justice testified in support of
completely eliminating the disparity. Today, 12 years later,
the Department of Justice again is calling for Congress to
eliminate it, in written testimony. I welcome the Republican
Governor of Arkansas, Asa Hutchinson, who testified at our 2009
hearing, again with us today, calling for Congress to pass the
EQUAL Act. Thank you, Governor.
Before I hand things off to Ranking Member Grassley, I want
to tell a story that is important and very personal. Ranking
Member Grassley has been an invaluable and trusted partner in
this effort. I know that he feels, as I do, that there are
thousands of people who should be seeing justice in this
country who are not, because of these guidelines. One person I
will never forget is a woman, Eugenia Jennings. She was
originally from Alton, Illinois. As a child, she was abandoned
and seriously abused. At the age of 15, she started using crack
to dull the pain of her life. At 23, she was convicted for
trading a small amount of crack for clothing for her kids.
The Federal judge, a personal friend of mine, Patrick
Murphy, delivered her sentence, and he said, quote, ``This is
not a sentence I am happy with. I'm not proud of it. Congress
has determined that the best way to handle people who are
troublesome is just lock them up.'' Eugenia Jennings, at the
age of 23, was sentenced to 22 years in a Federal prison for a
nonviolent offense.
She never gave up hope. While serving her time, she was a
model prisoner who did everything asked of her. Years into her
sentence, she developed a rare and serious form of cancer,
leukemia. I'll never forget the day that I personally met her
in the Federal prison in Greenville, Illinois. I sat down with
this lady and talked for over an hour. At the end of it, she
said, ``I don't know how much longer I'm going to live,
Senator, but I promise you this. If you can find some way to
get me out of this prison to be with my girls, I'll never do
anything wrong again in my life.''
I sat down and wrote a personal note to a former Senator
from Illinois named Barack Obama and asked him to commute
Eugenia's sentence. He did, and just in time for Eugenia to see
her eldest daughter graduate from high school. She died less
than 2 years later, at the age of 36.
As we approach the end of the graduation season this month,
I'd like us all to think about Eugenia. When she entered
prison, her daughter was 6 years old. The next time she saw her
in the outside world, her daughter was a young woman. Eugenia
missed her daughter's first day of high school, her prom, and
so many other rites of passage, and I want to salute her
brother, Cedric Parker, who was on the video, the earlier
video. He raised those kids while Eugenia was in prison, but
Eugenia missed them because the mythology surrounding crack
cocaine still dictates Federal policy.
Eugenia's gone, but there're still so many people like her,
counting on us to finally eliminate this disparity. Let's not
wait another day.
I recognize Ranking Member Grassley for his opening
statement.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman, for holding this
hearing. Before I begin my statement, just a comment. No
disagreement with the statistics you use, in regard to 4
percent of our population and 20 percent of--our imprisonment
is greater than any other society. Just a question that I don't
expect you to answer, and maybe there's no answer to it, but do
those figures include the Uighurs, the millions of Uighurs that
the Chinese have in prison in their concentration camps?
Chair Durbin. That's a very good point.
Senator Grassley. I'd like to have--see if we could find an
answer to that.
Drug sentencing laws are complex. They must be fair, and
they must be just, but prioritizing public safety is very
important. As such, they can't be based only on violent crime
risks, prevention efforts, or racial justice concerns. They
must be comprehensive. This is particularly true as we evaluate
today's topic, sentencing laws on crack and powder cocaine.
I've been a partner on this issue in the past. You've
recognized that today, and I appreciate that. I've indicated my
openness to re-evaluating the sentencing disparity between
crack and powder cocaine, but I do have some questions about
how to best do this. There are discrepancies between crack and
powder cocaine, in terms of recidivism rates, addiction, and
violent crime. These factors can't be ignored.
I'm hopeful today's testimony will touch on these aspects,
but I believe a comprehensive consensus hearing on cocaine
certainly would've highlighted these nuanced points. I asked
Chairman Durbin for a comprehensive hearing on cocaine, so that
we can have a complete understanding of all these issues. I
wanted a consensus hearing, meaning that everything was agreed
upon and that there were no minority or majority witnesses, but
that's not how this hearing unfolded. Today's hearing isn't
consensus, nor is it as comprehensive as it should be. Instead,
this hearing is focused only on sentencing issues, particularly
in deference to the EQUAL Act, and I have told people that I'm
willing to look at some sort of reduction in the disparity that
exists today.
I'm disappointed that my request for a comprehensive
hearing on cocaine was dismissed, particularly since I've
supported efforts to review crack and powder cocaine sentencing
issues in the past. I Co-Sponsored the Fair Sentencing Act,
which changed the 101-to-1 sentencing ratio for crack and
powder cocaine to where it is today, 18-to-1. I supported this
change being made retroactive in the First Step Act. I joined
an amicus brief submitted to the Supreme Court to review the
applicability of this provision, and I Co-Sponsored the First
Step Implementation Act, which further allows for retroactive
review and application of cocaine sentencing.
We've accomplished a lot in this area already, and maybe
there's more that can be done, and I've already indicated my
willingness to talk about those things. Today's hearing is
likely the first of many steps on cocaine sentencing, because
there's still a lot that we need to know. Today's Government
panel, for instance, shines a light on the vacuum of
information Congress is operating in. The Department of Justice
submitted a statement for the record in support of the EQUAL
Act.
[The information appears as a submission for the record.]
The Biden Justice Department support for this bill isn't
surprising. It's the same position as the Obama administration,
but nobody from the Justice Department is here to testify.
DOJ's absence makes it hard to fully evaluate and understand
the scope and impact of changing the law. While the United
States Sentencing Commission has released excellent reports on
Federal drug sentencing laws, its most recent comprehensive
report on cocaine sentencing was as far back as 2007. Also, the
last time the Sentencing Commission testified before the Senate
on this issue was way back, 2009. At that time, they stated the
sentencing ratio of crack and powder cocaine shouldn't be
higher than 20-to-1. It's currently at 18-to-1.
Where does all this leave us now? I'm worried we're
barreling down legislation without a complete picture of the
issue or the necessary Government witnesses before us today.
I'm nonetheless looking forward to hearing this hearing.
Learning as much as I can and discussing steps forward. I'd
like to be involved in those steps forward. I hope the future
of this discussion will highlight a variety of perspectives and
be more collaborative as we seek to find a solution together.
Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Grassley. Our work
together is a body of work which I'm most proud of, and I want
to continue it. Though we may have had a disagreement about the
elements and procedures today, there's no fundamental
disagreement between us, and I look forward to working with you
to have a complete hearing on all the important issues that
face us.
I'll now turn to Senator Booker, the Chair of the Judiciary
Subcommittee on Criminal Justice and Counterterrorism, for an
opening statement.
OPENING STATEMENT OF HON. CORY A. BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. Mr. Chairman, I thank you for the
opportunity to speak for a brief time at the top of this
hearing. I would like to submit my formal opening remarks for
the record.
I want to share with my colleagues, you know, there's
guiding principles to this country, where we aspire to the
highest ideals of humanity. It's what our Constitution is based
upon, by our Founding Fathers, who sought to make our Nation
one that best evidenced the ideals not just of humanity but of
divine providence. There is a--from the Abrahamic faiths, it's
an ideal. Come from Micah, ``What do you want, O Lord, from
your people?'', which is to do justice, to love mercy, and to
walk humbly. This is one of those areas of law where we have
created this disparity that, to me, violate those highest
ideals in a way that I can't identify as great as this in other
areas.
I have had the privilege in my life of living in different
types of communities. I lived and grew up in a wealthy
community where my family was the only Black family there. In
communities of wealth and privilege, I saw drug use and know
lots of people who were violating our laws. I've lived for the
last 20 years in a low-income, Black and brown community, and I
see the same human frailties. The consequences for those
lawbreakers is very different. When it comes to crack and
powder cocaine, it has been stunning to me to see how this law
has so terribly impacted the lives of folks, many of whom--who
need help, many of them who need treatment, but devastated
their lives with this disproportionate sentencing.
I am trying to live up to those ideals of humility. I've
listened very closely to all of the arguments that have been
against changing this, and I've been quite satisfied by the
data. I appreciate Chairman Grassley talking about the
concerns, because both sides of the aisle share the same
concern: public safety, public safety. All the data that I can
find that from objective sources gives no credence or validity
to some of the concerns that I hear most often. For example, in
2014, the Sentencing Commission, looking at the retroactive
reduction in crack cocaine guidelines, found that retroactive
sentence reductions did not result in higher recidivism rates.
The data is very clear.
I've heard concerns expressed about violent crime, that
somehow crack cocaine users, unlike powder cocaine users--and,
again, there's dramatic racial disparities--that somehow those
crack cocaine users were more likely to be engaged in violent
crime. I looked, with humility, toward the validity of those
arguments, and objective sources say, time and time again, that
is not the case.
Again, recent data dispels this notion that crack offenses
account for a higher rate of weapons possession than powder
cocaine. According to the data from the USSC in FY 2020, more
Federal offenders charged with powder cocaine offenses carried
weapons--490--than those charged with crack cocaine offenses--
468. In fact, it's the opposite. The data shows that powder
cocaine folks are more likely to have weapons. For me, there is
no substantive reason, from the actual chemical--they are the
same substance--all the way to the allegations that somehow
this will lead to more violence, will lead to more recidivism.
This is just not the case.
What is the case is that this has created within our
society deeper schisms along racial lines, where certain people
have had their lives devastated by this disparity. This is not
justice. This is not those high ideals of humanity that we talk
about in our most sacred civic documents, like the ideals of
equal justice under the law.
I am so encouraged that this is a bipartisan effort, that
there are numerous Republicans in the House, and Senator
Portman here, that are working with us in a bipartisan way to
end this stain of injustice in our community. I am so happy
that the very people who are out there enforcing our laws--from
law enforcement organizations, National District Attorneys, the
Americans for Prosperity, the Due Process Institute,
FreedomWorks, law enforcement leader after law enforcement
leader, are working together. From Right on Crime to the very
Sentencing Project are working together to end what is a
shameful chapter in our country.
You had Richard Nixon up there. All of us are mountain
ranges; I do not vilify anyone. We have all made good
contributions and tough contributions. You know, I want to end
with these words by Ehrlichman that really were at the
beginnings of the war on drugs, that sought to prey upon our
prejudices, to somehow deal with Black communities different
than others.
Ehrlichman, later in his life, admitted that so much of the
source of fear of Black people was a political strategy. ``We
knew,'' he says, quoting him, ``that we couldn't make it
illegal to be either against the war or being Black.'' He says
that these were the two groups that were most likely to be
against them. ``But by getting the public to associate hippies
with marijuana and Blacks with heroin, and then criminalizing
both heavily, we could disrupt these communities. We could
arrest their leaders, raid their homes, break up their
meetings, and vilify them night after night on the evening
news. Did we know we were lying about the drugs? Of course we
did.''
I live in a community now that, for a generation, has been
vilified. That on the evening news, we made people afraid.
Where words like ``super predators'' and others were heaped
upon Black communities. We have been devastated, in this
country, as a result of the disproportionate incarceration of
African Americans, even though there's no difference, no
difference in America, in the usage-of-drug rates along racial
lines. We need to end this nightmare. It is not just hurting
African-American communities; it is a stain upon our highest
ideals of humanity. We must, as a Senate, do as Micah commands.
Do justice, show mercy, and walk humbly with our Lord. Thank
you.
Chair Durbin. Thank you, Senator Booker. Senator Cotton, as
Ranking Member of the Subcommittee on Criminal Justice, will be
given an opportunity to submit opening remarks.
In the meantime, we will return to our witnesses in the
first panel. We welcome two distinguished witnesses to testify
about the continued disparities. Our first witness is Regina
LaBelle, the Acting Director of the Office of National Drug
Control Policy. Director LaBelle is also a distinguished
scholar and program director of the Addiction and Public Policy
Initiative at Georgetown Law's O'Neill Institute for National
and Global Health Law.
Our second witness is Arkansas Governor Asa Hutchinson,
whom I welcome back. Governor Hutchinson has served in his
current role, since 2015, as Governor. We see him every Sunday
morning on the news. Previously, he served as a U.S. attorney,
a U.S. Congressman, and Director of the U.S. Drug Enforcement
Agency. I'll lay out the mechanics of today's hearing after we
swear in the witnesses on the first panel.
Each witness will have 5 minutes for opening statements,
then rounds of questions from the Senators, at 5 minutes each.
I ask them to please stick close to 5 minutes, if you can.
Following that, we'll switch to our second panel, and Chairman
Booker, depending on the votes on the floor and such, may take
over that responsibility with 5-minute opening statements and 5
minutes of questions from each.
I'd ask if the witnesses on the first panel would please
stand to be sworn.
[Witnesses are sworn in.]
Let the record reflect that the witnesses answered in the
affirmative. Director LaBelle, please proceed.
STATEMENT OF REGINA LABELLE, ACTING
DIRECTOR, OFFICE OF NATIONAL DRUG
CONTROL POLICY, WASHINGTON, DC
Director LaBelle. Mr. Chairman, Ranking Member, Committee
Members, thank you for inviting me to testify on the important
issue of eliminating the sentencing disparity that remains
between sentences for people charged with trafficking of crack
versus powder cocaine. The Biden-Harris administration strongly
supports eliminating the current disparity in sentencing
between crack and powder cocaine. The current disparity is not
based on evidence. It has caused significant harm for decades,
particularly for individuals, families, and communities of
color. The continuation of the sentencing disparity is a
significant injustice in our legal system, and it's past time
for it to end. Therefore, the administration urges the swift
passage of the Eliminating a Quantifiably Unjust Application of
the Law Act, or the EQUAL Act.
The Biden-Harris administration is taking an evidence-based
approach to drug policy, and eliminating this disparity is in
alignment with that approach. I'd like to highlight some of the
significant evidence to support this position. First, the
sentencing disparity is not based on sound scientific evidence.
We currently have a system under which the same offense,
distribution of cocaine, results in radically different
sentences depending on the form of cocaine, even though both
formulations affect the brain in the same way.
Research suggests that the 100-to-1 sentencing disparity
under the Anti-Drug Abuse Act did not result in decreased crack
cocaine use. Similarly, the reduction of the mandatory
sentencing disparity to 18-to-1, under the Fair Sentencing Act,
was not associated with an increase in crack cocaine use.
However, data published by the United States Sentencing
Commission has shown that a higher percentage of Black
Americans are convicted in Federal court for crack cocaine
offenses versus powder cocaine offenses, and the sentencing
disparity has caused them to receive substantially longer
average sentence lengths for comparable offenses.
To put this in perspective, under the original 100-to-1
sentencing disparity, a 5-year mandatory minimum penalty would
be triggered by trafficking 5 grams of crack, whereas the same
penalty would only be triggered if someone trafficked 500 grams
of powder cocaine. Under the original law, simple possession of
any amount of crack cocaine exceeding 5 grams incurred a 5-year
mandatory penalty, but there was no corresponding mandatory
penalty for powder cocaine possession.
Under the original sentencing disparity, on average, Black
Americans were incarcerated for nonviolent offenses for almost
the same length of time as white Americans who committed
violent offenses. In 2010, Congress took the important step to
reduce this disparity to 18-to-1. However, in the past two
fiscal years, Black Americans accounted for 81 percent and 77
percent of all Federal crack cocaine convictions, respectively.
Because of the disparity, these convictions led to prison time
far longer than they would have been for equivalent amounts of
powder cocaine.
This sentencing disparity is part of a larger system with
separate, unequal tracks for people of color and white people
in the United States who use drugs or have a substance use
disorder. In 2018, the rate of incarceration for Hispanics was
3 times that of white Americans, and the incarceration rate for
Black Americans was 5.6 times that of white Americans. These
racial inequities are not limited to criminal justice. When
looking at access to substance use treatment, a recent study
showed that Black individuals generally enter treatment 4 to 5
years later than white individuals, even when controlling for
socioeconomic status, and in Hispanic communities, those who
need treatment for substance use disorder are less likely to
access care than non-Hispanics.
We know that substance use disorders can become chronic
conditions over time, and years spent without treatment and in
incarcerated settings can both exacerbate substance use
disorder and lead to other societal issues. President Biden has
emphasized the need to address racial inequities in the
criminal justice system. For example, he's been clear people
should not be incarcerated for drug use alone but should
instead be offered treatment. As a Senator, in 2007 he
introduced legislation to eliminate the sentencing disparity
entirely, and it's long past time to do this.
ONDCP's charge has always been to reduce drug use and its
consequences, and for far too long, our Nation's approach to
addressing substance use has led to disproportionate
consequences for communities of color. If we follow the
evidence and advance equity, as President Biden has directed
our agency to do, we need to eliminate the sentencing
disparity.
In closing, the Biden-Harris administration supports the
EQUAL Act and a complete elimination of the unfair sentencing
disparity between crack and powder cocaine. This was based on
inaccurate and unsound assumptions and has caused
disproportionate harm to our most vulnerable communities. Thank
you for your time, and thank you for holding this important
hearing that we hope will lead to real change.
[The prepared statement of Director LaBelle appears as a
submission for the record.]
Chair Durbin. Thank you very much. Governor Hutchinson.
STATEMENT OF ASA HUTCHINSON, GOVERNOR,
STATE OF ARKANSAS, LITTLE ROCK, ARKANSAS
Governor Hutchinson. Thank you, Chairman Durbin, for your
comments today. Ranking Member Grassley and Members of the
Committee. In 2009, I appeared before this Committee, as was
noted by the Chairman, and I appeared here on the same subject,
expressing my support for reducing or eliminating the disparity
of sentencing between crack and powder cocaine cases. As a
result of the work of this Committee, in 2010 the sentencing
disparity was reduced down to 18-to-1, but as noted, the work
is not yet finished, and I'm honored to be back today to
express my continued support for eliminating that disparity and
creating a greater sense of fairness in our criminal justice
system.
As noted, I've served this country in a variety of law
enforcement positions, from a Federal prosecutor to
administrator of the DEA, and now, as Governor, I continue to
be concerned about, first of all, reducing illegal drug use and
reducing the supply, but also--very concerned about fairness in
our criminal justice system. From my State perspective--and let
me just take a moment.
The presence of crack and powder cocaine is down in
Arkansas. Arkansas is part of the Gulf Coast HIDTA, High
Intensity Drug Trafficking Area, and the latest drug assessment
is that cocaine is ranked as the fifth greatest drug threat and
is considered a moderate threat within the Gulf Coast HIDTA
region. If you look at the statistics, we've had total pounds
of cocaine seized decrease by 42 percent from 2019 to 2020.
That's a nationwide statistic. Arkansas has adopted, or at
least we have in place, the 1-to-1 ratio for crack versus
powder cocaine in our State. I believe that is the right
standard that should be set, and let me summarize the need for
eliminating the sentencing disparity.
First of all, as been noted by our director of ONDCP, the
substances are chemically the same, and therefore they should
be treated the same for sentencing purposes. It's a fundamental
principle. Second, as noted by Senator Booker and others,
there's a disproportionate harm to communities of color. The
Sentencing Commission data shows that, in 2019, 81 percent of
crack cocaine defendants were Black. In the--2020, it was 76
percent of crack cocaine defendants were Black. Obviously,
whenever you sentence them to a higher level of punishment,
that is a disproportionate impact on African Americans. What's
interesting is that the SAMS data shows that crack cocaine
users are predominantly white, and so that adds to the sense of
unfairness in our criminal justice system.
That leads to the third reason, which is fundamental, and
that is that the sentencing disparity is unfair. Just as
importantly, it is perceived as unfair and undermines
confidence in our criminal justice system, in which all those
in law enforcement understands how critical a sense of fairness
is to achieving cooperation, respect, and to reinforce the rule
of law. Unfairness erodes cooperation, whether it's the
development of informants, to the ability to get cooperation,
to the working up the ladder of drug trafficking organizations.
Confidence in equal treatment under the law is the
foundation of our rule of law, and it is currently being
undermined by that disparity. I know it's been addressed that
there is more violence associated with crack cocaine, and there
might be some disagreement on the statistics there, but however
you conclude that topic, we have to recognize that the
sentencing guidelines has factors that will recognize the
degree of firearm use, whether there are victims that have been
harmed, and the criminal record of the defendant. All of those
are factors that can be brought to bear on the ultimate
sentence, versus using a much more unreliable indicator for
length of sentence, which would be the quantity. The sentencing
guidelines have plenty of leeway to account for violent crime
might be associated with crack cocaine use, versus simply
utilizing quantity as a chief indicator.
With that, I'm very honored to be here before many
colleagues that I respect, and this Committee and the work of
it, and I look forward to the question time. Thank you.
[The prepared statement of Governor Hutchinson appears as a
submission for the record.]
Chair Durbin. Thank you, Governor. Acting Director LaBelle,
from a scientific perspective, is there any rational
justification for reducing the sentencing disparity?
Director LaBelle. There--the scientific basis of both base
cocaine, which is crack cocaine, and powder cocaine--they're
similar, and they have similar effects on the brain. The issue
is how the drug is used. That's been the issue in the past.
Really, the drugs themselves, the form of the drug, is
essentially the same.
Chair Durbin. I don't know if this illustration will be
effective or not. [Holds up bags of flour.] First, this is
flour, and this is an indication of the amount of powder
cocaine that would result in the sentencing for this weighted
amount of crack cocaine, 100-to-1.
Unidentified Speaker: Eighteen.
Eighteen to one. I'm sorry, 18-to-1, which is an indication
that, if there's no science between the difference, the
sentencing is dramatically different. I think that is the
simple, direct point we're trying to make at this hearing.
Governor Hutchinson, you have seen this war on drugs from
so many angles. I can't think of a person who has the kind of
experience you do. U.S. Attorney for the Western District of
Arkansas, Member of the House, Administrator of the Drug
Enforcement Administration, Undersecretary for Border and
Transportation Security, and now Governor of Arkansas. I can't
tell you how much I appreciate your candor about the impact
that this has on respect for the law in some communities, when
African Americans disproportionately are penalized for this
sentencing disparity; what it must mean to the community. Have
you seen this firsthand, as Governor of your State or in your
previous assignments?
Governor Hutchinson. I have seen it in really all of the
assignments that you recited, and there's probably no one that
supports our law enforcement more than me. I've been a part of
it, I believe in them, I want to encourage them, and in each of
the roles that I've seen, unfairness undermines the respect for
the law, and that is so important to our law enforcement
officers. From a personal perspective, it's been different as
Governor, because I've seen clemency and pardon applications
come across my desk in which I've seen the unfairness play out
in the criminal justice system, and even though we have a 1-to-
1 ratio here in Arkansas, you still see the consequences of
severe penalties for a simple possession, multiple possessions
of drugs. You see the heartache, and you want to do everything
you can to eliminate unfairness so that we'll gain respect both
for law enforcement and for the system.
Chair Durbin. I think that's what I tried to allude to in
my opening remarks. The personal and family devastation of long
sentences and what it--I'm amazed that any of these prisoners
can come back, and I've seen so many of them come back after
serving long periods of time, to rebuild their families and
rebuild their lives, but it is devastating. I just want to add
one other element here. This sentencing disparity is not a
creation of law enforcement. It is a creation of legislators.
Congressmen, Senators who've come up with these laws on
sentencing disparities.
It is no reflection on law enforcement. It's our reflection
on us and what we have done in establishing these standards of
sentencing, and I think that's why we have such an awesome
responsibility. I can't thank you both enough for being here
today, your testimony. Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman. I'm going to
start out with Director LaBelle. According to the Institute on
Drug Abuse, treatment for stimulant addiction, including
cocaine abuse, is an under-researched area. Unlike treating
opioid abuse, there aren't any approved medications to treat
cocaine addiction. The majority of those seeking treatment for
cocaine smoke crack and are likely to be polydrug users.
Our Federal drug sentencing laws should avoid creating more
victims and addicts in vulnerable communities. However, if we
end up legislating on crack and powder cocaine sentencing, we
should all be in agreement that deterring drug trafficking is
vitally important. First, do you agree, and second, would you--
would more research in cocaine dosage amounts, treatment
options, prevention tactics, and addictiveness of cocaine be
helpful?
Director LaBelle. Thank you, Senator, for that important
question. I came here from the Interdiction Committee. ONDCP,
as you know, has a wide array of authorities, including drug
interdiction, and so we are looking very closely at the efforts
that need to be taken to reduce drug trafficking coming into
the United States and then inside the United States. Certainly,
we agree and appreciate--it's one of our policy priorities, is
reducing the supply of drugs coming into the country and then
drug trafficking in the country.
Second, in your piece, we totally agree that we need a
whole-of-government approach and to look at the continuum of
care for people with substance use disorder. Prevention--
preventing substance use disorders and substance use from ever
occurring is an essential part of our strategy, just as
treatment is an essential part of our strategy. As you said,
there is no medication for cocaine use disorder, but that
doesn't mean there aren't effective treatments. We're looking
at the barriers that exist to one of the most effective forms
of treatment for cocaine use disorder. Those are things that--
we appreciate Congress's investments, significant investments,
through the American Rescue Plan and through the President's
budget that's been sent to the Hill. There's $10 billion to be
spent on addressing the demand side of the equation, and then
also we support money and investments on the supply side. Thank
you.
Senator Grassley. Your agency is tasked with making and
coordinating our nationwide drug control strategy. Your office
released a statement of drug policy priorities earlier this
year. It mentioned that we must reduce the supply of illicit
drugs. I think an effective way to stop the supply of deadly
drugs is to have an effective and consistent drug control laws
on the books. This is true for all controlled substances.
I'm confused why your statement on drug policy priorities
didn't outline a permanently--how permanently scheduling
fentanyl analogs would be essential to reduce their supplies.
Do you think permanently scheduling fentanyl-related substances
in the United States would reduce the supply of these illicit
drugs?
Director LaBelle. You've pointed out an incredibly
important issue, which is the fentanyl and fentanyl analogs in
the United States. We know that, of the 90,000 overdose deaths
from last year, from 2020, that 75 percent of them involved
an--a fentanyl or fentanyl analog. What we're doing is working
with the interagency to make sure that we can present to
Congress a solution on the permanent scheduling or scheduling
of fentanyl analogs. We're working with DOJ, DEA, and our
partners at HHS to send something to the Hill by the fall.
Senator Grassley. Are you working with Members of Congress
to do that? Because I'm committed to working with anybody that
wants to work with--on this issue, and working in a bipartisan
way with Congress to make sure fentanyl-related substances are
permanently scheduled would be very helpful. Are you doing
that?
Director LaBelle. Certainly, sir. We're--I know that my
staff has met with your staff. We just sent a letter, and we're
happy to have ongoing conversations.
Senator Grassley. Quickly, I'm not going to give a lead-in
to this question, because I don't have time. Can you agree with
me that these kinds of considerations are critical to review,
along with racial justice concerns? How can we ensure these
factors are considered when reviewing drug sentencing laws?
I realize I couldn't leave out the lead-in. I mentioned in
my opening remarks how there are many factors that must be
considered when reviewing sentencing laws of crack and powder
cocaine. This includes recidivism data, violent crime,
addictiveness, and racial issues. According to the Sentencing
Commission, crack offenders receive a weapons sentencing
enhancement more often than powder traffickers. Also, of all
drug trafficking offenders, crack cocaine dealers recidivate at
a highest rate. Do I need to repeat my question?
Director LaBelle. I think the main issue that you've raised
is one of--that when people leave incarceration, they often
recidivate. One of the reasons that happens is because when
people are incarcerated, they may not get the treatment that
they need for their substance use disorder. That substance use
disorder doesn't go away simply because they are incarcerated.
If someone has a cocaine use disorder, when they're
incarcerated they should be receiving treatment for that
cocaine use disorder so that when they leave, they won't
recidivate. I think that's one of the issues that ONDCP is
taking on in our policy priorities and working on in our drug
strategy.
Senator Grassley. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator. Senator Feinstein.
Senator Feinstein. Thanks, Mr. Chairman. Governor
Hutchinson, as the former head of DEA under President Bush, the
first Undersecretary for Border and Transportation Security at
DHS, and a former U.S. attorney, your law enforcement
credentials speak for themselves, yet you have repeatedly and
publicly advocated for the elimination of the sentencing
disparity between crack and powder cocaine. I'm not being
critical, but I think your views are really important in this
discussion, because you have this extensive background in law
enforcement and you have a career in public service. What led
you to speak out so much and so eloquently on this issue?
Governor Hutchinson. Thank you, Senator Feinstein. Being
personally aware of unfairness should call us all to speak out,
just as Members of this Committee has. You know, in the 1980's
when President Reagan--we started, really, the tough side of
the fight against drugs, which was--we--our targets, you know,
whenever we had our asset seizures, all of those things
toughened our fight against illegal drugs, and it really wasn't
until I got to Congress that, working with some of the--my
colleagues on the Judiciary Committee, that I saw how the
application of those--the disparate sentencing laws impacted
our community and the respect for our law, and so I----
Senator Feinstein. Are you----
Governor Hutchinson [continuing]. Started speaking out.
Senator Feinstein [continuing]. Referring to the 100-to-1
sentencing disparity?
Governor Hutchinson. Yes, I'm referring to--the 100-to-1
sentencing disparity was unconscionable, in my view. It was not
based upon good science. It ought to be changed because it was
unfair.
Senator Feinstein. We're 35 years later, and do you believe
that our understanding of the situation is better?
Governor Hutchinson. I do. We understand the science
better, we understand the impact, we understand the unfairness
of it. It's supported by statistics, and we also, you know,
have a good sentencing grid that can address the other issues
of violence associated with crime. We do understand it better,
and that should lead us to take the final step to eliminate
completely that disparity.
Senator Feinstein. Thank you very much. I think that's very
powerful testimony. Thanks, Mr. Chairman.
Chair Durbin. Thank you, Senator Feinstein. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Ms. LaBelle, I've
read over the Biden Administration's Statement of drug policy
priorities for year one, and I appreciate your testimony about
the importance of follow-on services for people who are
released from incarceration, so that they don't repeat their
mistakes. To that end, Senator Whitehouse and I recently
introduced a bill called the Residential Substance Use Disorder
Treatment Act of 2021, which would expand the use of
substance--would expand access to substance use treatments in
jails and prisons. I'm certainly with you on that and want to
continue to support those efforts.
In my State, in Texas, part of what we did on prison reform
is give people access to programs when they're in prison and
hope they don't recidivate once they get out, but it really
required follow-on services. We can't just expect that we're
going to let somebody out of prison and then they're not going
to go back to the same old neighborhood and be exposed to the
same old temptations, perhaps, and the same old associates.
Other than supporting the High Intensity Drug Trafficking
Areas program and attempting to work with commercial carriers
to intercept synthetic drugs being moved through postal and
parcel systems, what do you intend to do in your office to
improve domestic drug enforcement?
Director LaBelle. Thank you, Senator, for that question.
ONDCP, as you said, has many aspects to it. What we try to do
is look at source countries, so, Colombia, Mexico, et cetera,
and that's the first step, to keep the drugs from coming into
the United States. As you asked about domestic work, we have
the High Intensity Drug Trafficking Areas program, and they
work extensively with their State and local partners to disrupt
drug trafficking. A lot of our work is really focused on
working with the HIDTAs, having partnerships with the Drug
Enforcement Administration, and making sure that all the pieces
are in place to support law enforcement, first of all, to
divert people away from the criminal justice system, to support
law enforcement, to disrupt drug trafficking networks, and
then, last, for people who are involved in criminal justice, as
you said, making sure they get the supports they need, both
while they're incarcerated and upon re-entry.
Senator Cornyn. Do you recall how many Americans died of
drug overdoses in the last year?
Director LaBelle. Certainly, sir. There were 92,000. That's
as of October 2020.
Senator Cornyn. Do you agree with me that a lot of those
drugs come across our southwestern border?
Director LaBelle. The--what we know is that 75 percent of
the 92,000 overdose deaths involved fentanyl, and fentanyl--
right now, the most of the fentanyl is coming from Mexico.
Senator Cornyn. Ninety percent of the heroin that comes to
this country comes from Mexico, too. Is that--do you agree with
that figure?
Director LaBelle. I believe that's the current figure.
Senator Cornyn. Okay. We ought to all be concerned, should
we not--shouldn't the Biden administration be concerned about
the overwhelming flood of people coming at the border,
including unaccompanied children, and diverting the Border
Patrol from their law enforcement function, to taking care of
these unaccompanied children? Shouldn't that be a matter of
concern?
Director LaBelle. What ONDCP is doing--and yesterday,
actually, I met with the Mexican Ambassador to the United
States--is talking to them about their ports, about the
fentanyl coming into their country, to--again, to keep it from
even getting to the border, so, disrupting labs in Mexico.
Those are many of the high-level dialogs that we're having with
Mexican officials.
Senator Cornyn. Do you know how much of Mexico is
controlled by the cartels, as opposed to the government?
Director LaBelle. It's significant, sir.
Senator Cornyn. Right. It is significant. It's frightening,
in fact. You didn't answer my question about diverting Border
Patrol, but we'll move on to something else.
Governor Hutchinson, I have a lot of respect for your
public service, and certainly, I've followed it and worked with
you off and on over the years. I'm trying to figure out how
this disparity issue would apply in other contexts, not just a
cocaine--crack versus powder, because if you had the little
bags of flour that Senator Durbin had, that he showed, with the
18-to-1 disparity, and you had heroin in one and you had
fentanyl in another, there would be a--fentanyl's a whole lot
more powerful, as I understand it, than heroin, and I'm just
wondering, across different types of opioid, let's say, for
example, prescription drugs, heroin, and fentanyl, do you think
this same principle can be applied? I'm just wondering how that
would work.
Governor Hutchinson. I think that's an excellent question,
and I think there is a reason for a broader discussion about
our sentencing policy in relation to drugs. They're ultimately
set by Congress, and you have to look at the impact. You have
to look at the chemical qualities of it. I think we've made a
determination based upon science, as to the similarity between
crack and powder cocaine, but obviously there's distinctions
between fentanyl, which deserves all of the resources and
investigation that's possible, because of the harm that is
being done. I think those are very good discussions. I do
believe, as I said, that quantity is not always the best
indicator as to culpability and consequences and punishment. It
should be many more factors simply than quantity.
Chair Durbin. Thank you, Senator Cornyn. Senator
Whitehouse.
Senator Whitehouse. Thank you, Chairman Durbin, and thank
you for your long determination on this issue. It's much
appreciated.
I want to just open by echoing Governor Hutchinson's
comment that the--many of the factors that have been used to
argue for the sentencing disparity actually turn up separately
in the sentencing guidelines, and so to the extent that there
are dangers associated with certain episodes of crack cocaine
dealing, the sentencing guidelines are capable of taking that
up, and a judge is capable of ruling on that. I thought that
was a very important point and something that I certainly saw
in my time as U.S. attorney. Thank you, Governor, for that.
Ms. LaBelle, I want to double down on my friend Senator
Cornyn's reference to our Residential Substance Use Disorder
Treatment Bill. I hope we can get strong support from the
administration for that. As you have said, it's really
important to pick people up while they're incarcerated, well
before they're discharged, and to make sure that once they're
discharged, that treatment continues and that there is follow-
through through that entire process. We've seen, in Rhode
Island, when you do that, that it improves recidivism and it
also dramatically reduced opioid overdose fatalities in the
immediate aftermath of discharge. It's a lifesaver, in addition
to being the right way to handle this condition, and I
appreciate your recognition of that, and I'd love to work with
you to make sure this bill gets strong support from the
administration.
I would say the same about the CARA 3.0 measure. As you
know, Senator Portman and I wrote CARA many years ago, and it
passed with huge bipartisan support here in the Senate and
passed through Congress and was signed into law, and then we
got large chunks of our CARA 2.0 bill put into another measure,
and now we're working on CARA 3.0, which provides the kind of
comprehensive approach to combating substance use disorder that
the General Assembly of the United Nations has recommended when
they said evidence-based prevention, treatment, and recovery
options to drug users, engaging those who commit criminal
offenses in evidence-based treatment during and following, or
in lieu of, incarceration, to prevent relapse and recidivism.
We look forward to working with you and hope you'll support
both of those efforts.
Chair Durbin. Thank you, Senator Whitehouse. I'd like----
Senator Whitehouse. She's welcome to say whether she'll
support either of those efforts.
Chair Durbin. Ms. LaBelle.
Director LaBelle. Senator, I wanted to point out, when you
talk about the importance of the RSAT program and what happened
in Rhode Island, I think this is really significant that it's
a--you had a 60 percent decrease in overdose stats among people
who had just left incarceration and a 6 percent decrease
statewide. What happened in Rhode Island really lit a fire
around the country for more states to have treatment behind the
walls. Yes, we're happy to meet with you and talk to you about
all of this legislation that you mentioned, CARA and RSAT.
Senator Whitehouse. Be sure to thank your new Commerce
Secretary, Governor Raimondo----
Director LaBelle. Yes.
Senator Whitehouse [continuing]. Because she played an
important role in making sure that our prison administration
developed that and imposed it and enforced it and saw those
really good results.
Director LaBelle. Yes. Thank you, Senator.
Chair Durbin. Thank you, Senator. Before I recognize
Senator Lee, I would just--I'm glad Senator Cornyn is still
here. In FY 2019, Congress appropriated $570 million for U.S.
Customs and Border Protection to deploy nonintrusive inspection
systems--I think that's maybe Z Portals and perhaps some
others--along the southwest border: technology allowing our
border inspectors to X-ray the contents of trucks, cars, buses,
and cargo containers.
CBP officials have informed Congress this additional
funding will be used to obtain technology to increase the
scanning rate of commercial trucks to 72 percent and passenger
vehicles to 40 percent by FY 2024. We're still several years
removed, but if I recall, this was approved and supported by
the Trump administration, to put in this technology, and we
have been funding it. I thank you for raising that point.
Senator Cornyn. If I can just reply briefly, I think that's
good. That's a good thing, but you have to also recognize that
a lot of illegal drugs come between the ports of entry in
backpacks, by mules who are carrying drugs for the cartels, and
we don't know how many people that our Border Patrol can
actually encounter, because you don't know the ones that you
don't run into. You can pick up the ones that you do run into
and have a hope of interdicting them, but right now, 40 percent
of the Border Patrol are taken off the front lines because
they're taking care of unaccompanied children, because of the
current humanitarian crisis at the border. That leaves an
opening, a huge opening for the cartels to run drugs through
those gaps in Border Patrol coverage. I think the technical
means is helpful, but it certainly doesn't address the concern
that I have about the fact that the Biden administration
doesn't appear to have any concerns whatsoever about the
current crisis. Thank you.
Chair Durbin. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Ms. LaBelle, I'd like
to start with you. CBP saw a sharp increase in the number of
total enforcement actions from FY 2018 to 2019, with
enforcement actions now on track to almost double in FY 2021.
These include actions related to inadmissibles to apprehensions
and arrests along the border. During that same time, we've
witnessed a 73 percent increase in the amount of cocaine seized
at the border. Would you agree that these numbers suggest that
there's a huge increase in the amount of cocaine entering the
United States from the southern border?
Director LaBelle. Thank you, Senator, for that question.
We're not seeing--I mean, yes, we've seen some increase in
cocaine, but over time, over the last couple years, it's been
relatively stable. What we're very concerned about is certainly
increased cultivation numbers in Colombia, because I think what
we have to do is make sure that it never reaches that stage.
The efforts that are being made at the border, most of these
come through the ports of entry, through vehicles, and that's
where the scanning information, the scanning devices, come
through, certainly for fentanyl. What we're seeing over the
course of a couple years is that it's relatively stable, but we
have to look back at the introduction--interdiction piece in
Colombia, and cultivation numbers are up.
Senator Lee. What about these--the increase that we're
seeing in FY 2021? Isn't it possible that at least some of
those are attributable to the open-border policies of the
current administration?
Director LaBelle. Thank you for asking that question,
Senator. I think that we, you know--so, flow doesn't always
equate to seizures. Some of that maybe have been because we
had, actually, earlier this year, during COVID, fewer people
coming across the border. Again, you know, we work with CBP
very closely to make sure that they have the support they need
to prevent cocaine from coming into this country. Again, I want
to go back to the interdiction work that we do, that the Coast
Guard does, and the work that we do with the country of
Colombia, to make sure that the--those drugs never even make it
that far.
Senator Lee. Okay. Let's talk about the relationship
between sentencing and drug interdictions and drug activity.
Setting aside for a minute the disparity issue, just assume
categorically that if we started sentencing cocaine, generally,
less harshly, wouldn't that have some risk of increasing or at
least incentivizing drug trafficking across our southern
border?
Director LaBelle. Senator, I want to go back to--what we're
looking at right now is--I mean, is the disparity issue, and I
think what we're talking about is that 18-to-1. I don't--we
haven't seen an increase in crack cocaine use, and, in fact,
it's pretty--it's a tiny proportion of people in this country
who have substance use disorders who use crack, and for powder
cocaine, it's about twice as much. Really, we haven't seen the
relation between sentencing guideline and use, or even
trafficking, in the country.
Senator Lee. Given the fact that we've got--I mean, let's
assume, for sake of argument, that these drugs should be
treated the same way for sentencing purposes and that there
shouldn't be this disparity. This still does leave an
outstanding issue that I'm not sure the bill we're discussing
today addresses. Given how dangerous that both crack cocaine
and powder cocaine are, and the current triple increase in the
number of cocaine-associated deaths over the last decade,
should we--why shouldn't we be concerned about raising the
amount of crack cocaine needed in order to trigger the
mandatory minimum, rather than lowering the amount of powder
cocaine? Do you understand my question?
Director LaBelle. I think so, but I want to--so, cocaine
overdose deaths are up; however, what's up, what's causing that
increase, is the presence of fentanyl in people who have died.
It's not cocaine use solely. Cocaine use is actually somewhat
down over the last----
Senator Lee. Yes, but they're still dying because they
purchased and used cocaine. I mean----
Director LaBelle. Well----
Senator Lee [continuing]. Yes, it's tainted cocaine, and
it's been cut with something that is very deadly, but these are
still deaths. They are still cocaine overdose-related deaths.
There's another complicating factor, but I'm not sure that
negates the sentencing concern I'm talking about. In other
words, my question is, do we need to be concerned about--you
know, what's the appropriate level to set it? I think there is
widespread agreement on this Committee that the disparity is
difficult to defend. The question becomes, what do we do about
the disparity? Do we raise the threshold for one or reduce the
threshold for the other?
Director LaBelle. I think what the bill calls for and what
the administration supports is reducing the crack cocaine
threshold to make it even with cocaine--with powder cocaine. I
don't think we're requesting an increase. I don't think that's
related to either cocaine use or overdose deaths.
Senator Lee. Mr. Chairman, my time's expired. Can I ask one
follow-up question to--Governor Hutchinson, do you have any
response to that question? Do we raise one, lower the other? Do
we meet in the middle?
Governor Hutchinson. That's a great question. The--my
answer to that is, again, I think we're better off addressing
the concerns of these substances in terms of increased
penalties based upon whether there's a firearm at the time,
whether there's other violence, or the victims and the--those--
and the prior record. Those are things the sentencing judge can
consider, and I think that's preferable. With where we are
right now, I believe that the Act, as addressed and as drafted,
is a good remedy for it.
Senator Lee. Thank you.
Chair Durbin. Senator Coons.
Senator Coons. Thank you, Chairman Durbin, and thank you
for your years of leadership on this important issue, Ranking
Member Grassley, Senator Booker. I just want to thank our
witnesses for being here today, as well, and commend the
leadership of those on this Committee who are working hard to
advance the EQUAL Act and the Biden administration that is
calling on all of us to apply evidence-based policy in a way
that actually addresses racial inequalities in criminal
justice.
To Acting Director LaBelle, I've long worked closely with
the ONDCP in my 10 years in local government and as a Chair and
Ranking Member of the FSGG Appropriations Subcommittee and look
forward to working with you more closely. I think it's a vital
office. I'm glad that it has survived unscathed the attempts to
restructure it and realign it in recent years, and I had a
great series of visits to Delaware of the previous Director and
hope that whoever is the next Director will commit to coming to
Delaware to visit us, as well.
I just would be interested in hearing from you why the
crack cocaine sentencing disparity does more harm than good in
our communities and what the Biden administration is calling on
this body to do about it and then what the administration will
be doing to address drug crime with a whole-of-Government
approach.
Director LaBelle. Thank you, Senator. Thanks for your
longtime involvement with ONDCP and support for the office. I
think what really we're looking at today is to restore trust
and faith in our criminal justice system. Also, for drug
policy, one of our policy priorities is to advance equity.
That's a huge, huge undertaking, but this is one step we can
take today after a number of years.
It--our policy priorities, as we sent to the Hill,
include--there are seven of them. One of them is racial equity.
It also includes supply reduction, so, reducing the supply of
drugs that are consumed in this country. That's not only
domestic law enforcement. That, as I've said, includes going to
source countries. I mean, I would think that half of my time is
spent on international issues, and so it's that whole-of-
Government approach that we need, to address the issue.
Senator Coons. I look forward to working more closely with
you on that, both the transnational issues and the domestic
issues.
Governor, if I could, I just am so grateful for your voice
and your leadership on this. This isn't a partisan issue, and
as the Acting Director said, it's long overdue. My predecessor
in this seat, then-Senator Biden, back in 2007, introduced
legislation to eliminate this disparity.
Can you speak to how these disparities have damaged
communities and why you support rectifying it and, in
particular, why the retroactive provisions of the EQUAL Act are
important to make a difference to families and communities that
have already been harmed by this long-standing sentencing
disparity?
Governor Hutchinson. Senator, it's fundamental to
everything that we believe about our legal system--is that
everyone is treated equally under the law. Whenever that
fundamental point is undermined, then you have juries that
believe in the jury nullification, the community does not want
to hold people accountable because they see the entire system
unfair, you see a lack of cooperation and respect among the
police, and then you have communities that are impacted because
of long periods of incarceration that is not included--
applicable to other communities. All of those reasons--I think
it is one of the most important things we can do, to build
confidence in our criminal justice system and with law
enforcement, is to equalize that treatment between powder and
crack.
Senator Coons. Thank you, Governor. Thank you, Acting
Director. I look forward to the swift passage of the EQUAL Act.
It belongs on the President's desk and it belongs in law, and
we have a lot more to do, past that, but this would be a great
next step. Thank you. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Coons. I understand she is
remote and virtual, but Senator Klobuchar is seeking
recognition. Is that true?
Senator Klobuchar. That is correct, Mr. Chair.
Chair Durbin. Take it away, Senator.
Senator Klobuchar. All right. Thank you, Senator Durbin,
for your longtime leadership on addressing this disparity.
Ms. LaBelle, as you described in your testimony, the crack
cocaine and powder cocaine sentencing disparity has had a
disproportionate impact on communities of color. The impact
continues today. Do you agree that eliminating this disparity
is a key component, as we look at issues of race disparity in
the criminal justice system?
Director LaBelle. Absolutely, Senator. Thank you.
Senator Klobuchar. What more should the Federal Government
do to help address the long-term impact that the sentencing
disparity had in communities of color?
Director LaBelle. I mean, I think I outlined some of that
in my remarks, that we need to make sure, first of all, to
restore trust that--in our criminal justice system, in our drug
policies. We also need to make sure that we have equity when we
are looking to get--to prevent substance use from ever
occurring and to treat people, make sure we're getting access
to treatment for people in need, regardless of their color.
That's another piece in our policy priorities that we're
working on.
Senator Klobuchar. Exactly. For me, it's been a lot about--
from my old days in my other job as a county attorney, it's
been expanding drug court, expanding access to drug court, and
making sure they're available to everyone.
Governor Hutchinson, many States have taken action to end
the disparity in sentencing. In Arkansas, in Minnesota, the
criminal code provides the same sentencing guidelines for crack
and powder cocaine. What impacts have you observed in States
that have moved to equal sentencing for crack and powder
cocaine? What lessons have you learned from your State that
have led you to be testifying today?
Governor Hutchinson. Thank you, Senator. I can't speak for
every State, but you start with equal treatment, and that's
what a 1-to-1 ratio gives us. You know, in terms of the impact
on communities, you can see that many times these cases are
brought into Federal court, and while, you know, we have it 1-
to-1 at the State level, as everyone knows, through the task
forces and through Federal prosecutions, that these cases will
wind up in Federal court. While our ratio is good, that
difference with the Federal system really, for the person out
there who's a defendant, they just see it as one system. We
have to really bring that sense of fairness together at the
State and Federal level.
Senator Klobuchar. Are you a believer in drug courts? We--I
just discussed them with Ms. LaBelle.
Governor Hutchinson. Listen, thanks for raising that. I'm a
big supporter of it. I supported that while I was head of the
DEA, even, and then carried it out as Governor. We're a very
active drug treatment court system, and I've seen them
operational across the country. They're one of the most
effective tools we can have, that brings accountability but
also treatment that goes along with it.
Senator Klobuchar. Thank you. Back to you, Ms. LaBelle.
Justice Sotomayor recently noted, in a case called Terry v.
United States, that there is, and these are her words, ``an
extensive record of race-based myths about crack cocaine that
the media `branded into the public mind and the minds of
legislators.' '' I'd like to run through with you a few of
these, to make clear why we should take action to continue to
eliminate this sentencing disparity.
First, is it true that the science does not support
treating these two drugs differently? Yes or no?
Director LaBelle. Yes.
Senator Klobuchar. That the science does not support it?
Director LaBelle. The science does not support treating
these two drugs----
Senator Klobuchar. Exactly.
Director LaBelle [continuing]. Differently. Yes.
Senator Klobuchar. Okay. Is it true that both powder and
crack cocaine are addictive and pose serious health risks, both
of them?
Director LaBelle. Yes.
Senator Klobuchar. Okay. Is----
Director LaBelle. Yes, they're both----
Senator Klobuchar [continuing]. Its true that there is not
data to support the claim that crack cocaine causes violent
behavior?
Director LaBelle. No. There's no research on that--to
support that.
Senator Klobuchar. Okay. Could we go back to the first one
on--or the second one, about the addiction and the serious
health risks and powder versus crack cocaine, just what the
science really shows on that?
Director LaBelle. It's based on what--how you use it, as
opposed to the drug itself. Most people use crack cocaine; it's
vaporized and it goes into the bloodstream much faster, and it
affects your brain in a faster way. However, powder cocaine can
be injected, and it has similar properties to, and affects the
brain in the same way as, vaporized crack cocaine.
Senator Klobuchar. Then back to the other one on violent
behavior, there are--I know there are some incidences involving
cocaine, of violent behavior, but what you're saying is there's
not actually data on this?
Director LaBelle. The research shows that it's not an
individualized issue, that it's really about drug trafficking
itself.
Senator Klobuchar. What do you mean by that?
Director LaBelle. It's the trafficking that leads to the
violent behavior. As Governor Hutchinson said, you know, there
are ways in which our sentencing provides for more violent
crimes to increase sentencing based on the act itself, as
opposed to the drug.
Senator Klobuchar. Okay. All right. Thank you very much. I
appreciate your work. Thank you.
Chair Durbin. Thanks, Senator Klobuchar. Senator
Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. Thank you and
Senator Booker and others on our Committee for their work on
this issue, and I strongly support this legislation. Governor
Hutchinson, you talked in your testimony, and I'm going to
quote it, about incarceration, generally. ``As a Nation, we
should not rely on incarceration as the first, best, and only
response to drug offenses.'' You go on to talk about the costs
of incarceration, generally. ``The American public understands
that we are not reaping the societal benefits that we
previously hoped might come with an incarceration-first model,
and they are looking to the Nation's State and Federal leaders
to adjust their approach and find evidence-based solutions that
work.''
I served as United States attorney in Connecticut, as well
as the State Attorney General. I think both of us, having
sought harsh sentences--and I did my share of requests for
``throw the book at this defendant,'' but I've come to see that
incarceration, generally, has very, very, very mixed results,
often exactly the opposite of what we hoped as prosecutors to
achieve. I wonder if you could talk about that issue and, as
well, the way that sentencing involves very unjust and unfair
disparities, not just in drug offenses, but from the first
sentencing I observed, as a law clerk to a district judge--
often, personal factors that differ from one judge to another
and lead to judges being known as harsh sentencers or lenient
sentencers. It just seems like the whole criminal justice
system is bedeviled by disparities in sentencing that is a
focus here in very dramatic terms but, in one way or another,
characterize our criminal justice system.
Governor Hutchinson. Thank you, Senator. The disparities in
sentencing across the board are always a challenge. The Federal
level addressed it through the sentencing guidelines, which I'm
supportive of as long as there are some escape clauses for the
judge whenever there's unusual factors in it. At the State
level, we are not as reliant upon sentencing guidelines. We
have those, but there's much more discretion among the
prosecutors, as you know, in the sentencing, and so you wind up
having differences between jurisdictions, so then you have big
differences between those that plead versus those that go to a
jury trial. Those are disparities that I struggle with as
Governor.
In terms of incarceration, you've got to distinguish--I
mean, I believe in incarceration of those violence, those that
are a risk to public safety, as I'm sure you do, but we have to
distinguish those that have both a criminal problem and an
addiction problem. That's what we're trying to identify through
our drug treatment courts, the nonviolent offenders that have
addiction issues, and they might be selling to support their
habit. If we can identify those, then incarceration is not the
first answer. There is other options that we should look at.
Senator Blumenthal. I completely agree that incarceration
serves a valid, important function when there is a threat to
the public, when that threat can be addressed through
confinement, but I agree with you also that dealing with
substance abuse disorder is certainly a key to making
incarceration productive.
Let me ask you, if I may, Ms. LaBelle--I gather your view
is that Colombia is now again the source of the major influx of
cocaine into this country? It was for a while, and then it
abated, and now it is again. Is that correct?
Director LaBelle. It's about 90 percent of U.S. cocaine
comes from--is sourced from Colombia.
Senator Blumenthal. Can the same tactics be used as before,
to reduce that flow?
Director LaBelle. We have--we're working on a plan to
address the issue both from land titling, redevelopment, and so
that--all those things are being worked on right now. There
will be elements of the previous approach. We have a great
relationship with Colombia, and we can build on those
relationships to have an effective approach to reducing
cultivation in Colombia.
Senator Blumenthal. Thank you very much. Thanks, Mr.
Chairman.
Chair Durbin. Senator Booker.
Senator Booker. Thank you very much, Mr. Chairman.
Governor, it's just such an honor that you would take time to
be here, and I'm just so grateful for your loud voice on
rational sentencing. You come at it with a tremendous amount of
gravitas because of your service not just as a Governor but
really someone who was responsible as a head of the Drug
Enforcement Administration.
I just want to ask you, so maybe go into details--like, you
said in a recent editorial that--in support of the EQUAL Act,
that this is--that our efforts are failing in getting the real
high-level drug traffickers. If it's failing in that, who is
getting churned into the system? What kind of folks are--if
we're not getting the--through the sentencing, if we're not
getting the major traffickers, who are we getting?
Governor Hutchinson. It's hard to get major traffickers,
and that's where I agree totally with our interdiction efforts
that the Director referenced. We have to disrupt that supply
chain, but it's hard to get the level of cooperation you need
to go up the chain. In terms of--but we have to stay after
that, first of all.
Second, in terms of who we are prosecuting, you know, we've
seen instances at the Federal level where someone is
peripherally involved in a drug trafficking organization, but
they get hammered under the conspiracy for the major elements
of it, and so Congress has addressed some of that, and I
applaud them for it. We have to continually to work to separate
those that have true addiction problems versus that are in it
for the economy, for the money, the profits, and are engaged in
the violent activities of it.
I think law enforcement does a terrific job in terms of
putting their priorities on the right places, and society has
changed. I think we've learned that, you know, if you've got
somebody who's genuinely selling, incarceration is necessary,
whether it's methamphetamine or whether it's cocaine, but if
you've got somebody who has an addiction problem, then--and
that's why they're engaged in the minor selling of it, then
let's look at alternatives.
Senator Booker. That--and that's--two more points. One is,
so, that's my concern, and this has been the best area of
bipartisan work I've had as a Senator, and the thoughtfulness
of people on both sides of the aisle are really good. I thought
my friend, Senator Lee, asked a really good question. For a lot
of these offenders, for--at sort of that first level, that gets
you 5 years, or the second level gets you 10 years, why not
just--why is the EQUAL Act the right way to go, of lowering the
crack disparity to the cocaine level? Why not raise the cocaine
level that triggers those higher-end sentences, to the crack
level? Why is the EQUAL Act the one you're endorsing, of those
two strategies, when it comes to public safety and helping
people that might be engaged in the usage of small amounts?
Governor Hutchinson. That's a great question and one that I
wrestled with, because to me the most important thing is to
equalize it so it is fair. Where we are right now, it'd be hard
to justify increasing the penalties or change, adjust the
amounts upwards in terms of the powder cocaine. It's just--I
think you get broader support, I think you accomplish the
objective, and whenever I look at the concerns about a career
criminal, about violence, all of those things, they could be
factored in separately, in the sentencing guidelines.
Senator Booker. If I may interrupt, you have seen now
what's happened when we acted in a bipartisan way to lower
sentencing. You've seen when we've given judges more
discretion. Has that generally, that trend, been a good thing,
or are you concerned, in Arkansas and other places, about
public safety?
Governor Hutchinson. From what I see in the data--that
there's not been an adverse consequence from those changes.
Senator Booker. Yes. Okay. Then the last thing I just want
to ask you to make a comment on--so, one of my biggest concerns
is the faith with which people have in law enforcement, the
faith that we, as a society, have in our justice system.
Really, our justice system sits on that foundation. Even Judge
Learned Hand once said the Constitution is not--is only worth
as much as the paper it's written on, unless it's in the hearts
of the people.
I would imagine, in your experience right now, you know
that there's minority communities who have a lot of cynicism
about our criminal justice system that has been bred from bad
experiences with feeling like they've witnessed this disparity.
In your experience, what would be the effect of leveling this,
finally be in the confidence people have in the justice system
in general?
Governor Hutchinson. It would be a significant step forward
in rebuilding confidence in our criminal justice system. I
don't necessarily think it ends there. I think we have to
continually look at our policies, our incarceration, and to
make sure that we have the resources to stop violence in our
minority communities, as well as making sure that we have
community support and that we have drug treatment courts and
those treatment facilities that are available, as well.
Senator Booker. Thank you very much. I'm sorry, Ms.
LaBelle, I didn't have any questions for you, but you were
still amongst my two favorite LaBelles in America.
[Laughter.]
Senator Booker. Thanks.
Chair Durbin. Let me guess the other. Thank you, Senator
Booker. We're now going to thank the two witnesses for joining
us today, and their testimony was terrific. Appreciate the
sacrifice they made, to be here. Thank you very much, Governor.
Thank you, Ms. LaBelle.
I'd like to say a few things for the record, here. First,
the Department of Justice fully supports the EQUAL Act. A
Department witness would have been here in person to explain
that support, but for the fact that he had a previously
scheduled family vacation this week. They have sent a
statement--I hope you get a copy of that, Senator Grassley--in
support of the EQUAL Act, which I'd ask unanimous consent to
enter into the record.
[The information appears as a submission for the record.]
Chair Durbin. I'd like to make a couple points on questions
raised during the course of this first panel. The U.S.
Sentencing Commission reports that crack cocaine offenses have
declined significantly since the sentencing guidelines for
crack cocaine offenses were first reduced more than 10 years
ago, from merely--from nearly 6,000 cases in 2009 to just over
1,200 cases in FY 2020. The DEA's 2020 National Drug Assessment
reports that in 2019, the number of cocaine reports to the
DEA's National Forensic Laboratory Information System was the
lowest number report in the past 6 years, and those cocaine
reports represent less than half the number reported in their
peak in 2006. A change in sentencing has not resulted in more
cocaine being reported or offenses being reported, as well.
I'd like to ask consent that statements in support of the
EQUAL Act by the Major Cities Chiefs, faith leaders, Americans
for Prosperity, American Conservative Union, civil rights
organizations, law enforcement, and others, including the
Marion County attorney from the great State of Iowa, will be
entered in the record without objection.
[The information appears as a submission for the record.]
Chair Durbin. Senator Booker has graciously agreed to come
forward for the second panel, and we'd ask them to please come
to the table to be sworn in. I hereby authorize Senator Booker
as Chairman to swear in the next panel of witnesses.
Senator Grassley. Before you swear them, I would ask
permission--I'd like to submit, for the record, a number of
letters from the prosecuting and law enforcement community, on
cocaine and the sentencing disparity between crack and powder
cocaine. These letters highlight a fraction of the issues and
opinions, and I hope to create a more complete and robust
picture of how to approach the issue.
These letters are from the individual prosecutors, the
executive director of HIDTA programs, the Heritage Foundation,
the National Narcotics Officers' Associations' Coalition, and
the National Association of Police Officers.
[The information appears as a submission for the record.]
Senator Booker [Presiding]. Thank you very much to the
Ranking Member. I want to thank everybody for their patience.
It's so great to see this panel here. I want to introduce the
majority witnesses of our second panel, and then I'll return to
the Ranking Member Grassley to introduce the minority
witnesses.
First, Matthew Charles is joining us today. Thanks to the
First Step Act--under the 100-to-1 disparity, Mr. Charles, my
friend, was sentenced to 35 years in prison. He was a model
inmate. That is not a reflection of his looks but his behavior.
A Federal judge ruled, in 2016, that he should be released
under the retroactive sentencing guideline reductions that
resulted from the first--the Fair Sentencing Act.
After rebuilding his life for almost 2 years, an appellate
court ruled that Mr. Charles had been released in error. After
the First Step Act passed, Mr. Charles was eligible for
resentencing, and thank God, he was released again. He has been
extraordinary in his activism, leadership, and service in the
community, further tribute to the model citizen he is, as he
was a model inmate.
We have also been joined by Mr. Russell Coleman. Mr.
Coleman was the U.S. Attorney for the Western District of
Kentucky during the Trump administration. He has also
previously served as a staffer for the minority leader, Mr.
McConnell. I want to thank Mr. Russell publicly for his service
to our country, his years of commitment to making this Nation
better.
Ranking Member Grassley, would you go ahead and introduce
the other two witnesses?
Senator Grassley. I'm not prepared to do that now.
Senator Booker. All right.
Senator Grassley. Somebody screwed up here.
Senator Booker. That's okay, sir. I will take the blame. Do
not----
Senator Grassley. Okay.
Senator Booker [continuing]. Put it on your staffer. I'm
sure it was me.
Unidentified Speaker. I stood at the wrong moment.
Senator Booker. Yes. I do want to just--while we're waiting
perhaps for that, I do just want to make sure everybody does
know that this is, indeed, flour. I've tested it.
Senator Grassley. What have you got?
Senator Booker. I was a little concerned.
Senator Grassley. Where's the other one?
Senator Booker. I was--it is not gluten-free flour, though,
so it's a dangerous substance.
Senator Grassley. Okay. Obviously, I'm not going to read a
whole dissertation, here. Forget it. Just let them introduce
themselves.
Senator Booker. Gentlemen, you're going to introduce
yourselves when you speak. Would the witnesses please stand, to
be sworn in?
[Witnesses are sworn in.]
Senator Booker. Okay. Thank you all. Mr. Charles, would you
please proceed with your opening statement? Mr. Charles, we're
going to get your microphone on, one way or the other.
Mr. Charles. Okay.
STATEMENT OF MATTHEW CHARLES, JUSTICE
REFORM FELLOW, FAMM, NASHVILLE, TENNESSEE
Mr. Charles. Thank you, Chairman Durbin, Ranking Member
Grassley, Senator Booker, and Members of the Committee. Good
morning. My name is Matthew Charles. It's an honor to have this
opportunity to speak with you today, just as it was an honor
for me to be at the State of the Union address 2 years ago and
receive a standing ovation from Members of the House and
Senate.
Some of you know my story. As a young man, I was on the
wrong path. I grew up in a cramped public housing unit in North
Carolina with a father who was both physically and verbally
abusive. I was angry and lost, and I began to mimic that
behavior I experienced at home. I share this not as an excuse
but to help you understand why I made the bad choices that
resulted in my incarceration.
At 18, I tried to escape home life and joined the Army, but
I was still angry and mad at the world. For the next decade, I
was in a dark place. I sold drugs and spent about 5 years in
State prison, but I had not yet hit rock bottom. In 1995, I was
arrested for selling 216 grams of crack cocaine to an informant
and illegally possessing a firearm. Because of my prior
criminal activity and because I sold crack cocaine instead of
powder cocaine, I was given a 35-year sentence. If crack and
powder were treated the same back then, my sentence could've
been only 15 years, not 35, but the 100-to-1 disparity was in
place at that time, and I honestly didn't seem like someone who
deserved a break.
While in the county jail, I met a guy named Jesus Duran.
When he was sentenced and transferring, he left me his
possessions. Among those things was a Bible. I read the Bible
for the first time in my life, and the hard shell that I had
constructed to protect myself began to crack. I gave up the
anger and pain that had controlled me. I surrendered my life to
the Lord Jesus Christ. That decision changed my attitude toward
people.
I went to Federal prison and continued to live out the new
life that I had accepted. Doing so allowed me to live a
positive lifestyle and afforded me the opportunity to work as a
GED tutor, a law clerk, and to mentor some younger people. Over
the next 21 years, I didn't receive a single disciplinary
infraction.
When Congress passed the Fair Sentencing Act in 2009, I
believed I was eligible for a sentence reduction. I was
following the debate at the United States Sentencing Commission
and in Congress very closely, as were others serving time for
crack-related offenses, and we knew that the basis for treating
us differently had evaporated. What was clearest of all to us,
a fact we saw every day inside prison, was that the stiffer
penalties for crack were being applied disproportionately to
Black people.
People of color have been adversely affected for decades
and have suffered grave injustices and irreparable harm through
criminal prosecutions of low-level drug offenders and addicts.
We know the harm these excessive sentences caused to our
children, our families, and our communities. We had hoped
Congress would eliminate the unjustified disparity in 2010, but
we saw political compromise reduce it to 18-to-1. The Fair
Sentencing Act did not apply retroactively, but the U.S.
Sentencing Commission made those changes retroactive.
In 2013, I applied for a sentence modification. At my
resentencing hearing, the judge commended my rehabilitation and
reduced my sentence. I left prison in 2016. At that time, I
moved to Nashville, got a job as a driver, reconnected with
family, volunteered weekly at a food pantry called The Little
Pantry That Could, and became deeply involved in my church. I
was doing everything I could to make my second chance a
success, but after a year and a half of freedom, the Obama
Administration's Department of Justice okayed the prosecutor to
appeal my release, and the appeals court reversed the reduction
in sentence.
I was sent back to prison for 7 months, until the passage
of the First Step Act. Thanks to many of you, especially
Senators Grassley and Senator Durbin, I was spared from
spending another decade behind bars. I left prison for good on
January 3d, 2019, just 2 weeks after President Trump signed the
bill into law.
I've spent the last two and a half years advocating for
those left behind. People tell me my story is unique, but I
know there are a lot of people like me who are committed to
making changes and finding a new path and who do not need to
spend decades in prison to learn their lesson. I deserved to go
to Federal prison for my crimes, but I didn't need a sentence
of 35 years, especially when 20 of those years were due to the
fact that I sold one type of crack--one type of cocaine rather
than another.
The Fair Sentencing Act might have been the best political
compromise Congress could have reached 11 years ago, but the
unfairness it sought to address remains. The U.S. Sentencing
Commission recently found that Black people made up 77 percent
of all Federal crack convictions in 2020, a percentage nearly
as high as it was in the years before Congress reduced the
disparity to 18-to-1. In other words, we used to see a
tremendous amount of racial discrimination; now we see a little
less. Even a little less discrimination is too much.
Proverbs 11:1 says, ``Dishonest scales are an abomination
to the Lord, but a just weight is his delight.'' The difference
in crack and powder drug weights wasn't just in 1986, it wasn't
just in 2010, and it isn't just now. It's time to finish the
job, and I urge you to pass the EQUAL Act. Thank you for
allowing me to testify.
[The prepared statement of Mr. Charles appears as a
submission for the record.]
Senator Booker. Mr. Charles, thank you very much. I have
been somewhat deputized by the Ranking Member. Mr. Garcia,
you're going to speak next, but I just want to say, sir, that
you serve as the Executive Director of the South Texas High
Intensity Drug Trafficking Agency, HIDTA, and you've done that
since 2008. That is extraordinary, because the South Texas
HIDTA includes part of the southern border that is the highest
drug trafficking area, one of the highest drug trafficking area
in the United States.
You have been--showed extraordinary commitment to your work
in protecting your community and making us a stronger and safer
nation. From 2007 to 2008, you were the director of the New
Mexico HIDTA, and so you have tremendous experience when it
comes to issues of drug trafficking. You've worked your whole
life, though, in public safety: 31 years serving as the
narcotics deputy commander, narcotics captain, narcotics
sergeant, narcotics agent, and a trooper. Sir, it's an honor to
have you. Would you please give us your testimony?
STATEMENT OF ANTONIO GARCIA, EXECUTIVE
DIRECTOR, SOUTH TEXAS HIGH INTENSITY DRUG
TRAFFICKING AREA, SAN ANTONIO, TEXAS
Mr. Garcia. Thank you, Senator Booker. Chairman Durbin and
Senator Grassley, thank you so much for the opportunity to have
a chance to come before you. Senator Grassley has been an
instrument of support for law enforcement in general, and in
particular when it comes to the use of the National Guard
Training Program. Senator, thank you so much for your work and
effort.
Senator Booker, when then-Colonel Rick Fuentes and I worked
together on the A--IACP Committees, along with Governor
Hutchinson, it was something that he came up with, because of
your support, something that is now modeled as a National model
in drug monitoring initiatives. Thank you, sir, for your
efforts. Many of you have helped the law enforcement community
out. Senator Feinstein, Senator Cornyn, Senator Cruz, all of
you understand the importance behind the law enforcement
community, and I think that it's critical today for us to
recognize that.
I've been in law enforcement, like you said, Senator, for
45 years. Forty-two of those years I have spent in narcotics
enforcement. I have personally witnessed the devastation that
drugs cause our community. The international criminal
organizations, the drug cartels, the drug trafficking criminal
organizations, the drug smugglers, and the local drug dealers
are what I consider to be the predators that feed upon the
innocence and the gullibility of the most vulnerable citizens
of our country. Many of those citizens live in lower
socioeconomic areas. These predators, they don't discriminate.
They care not what color their victims are, as long as their
profits continue to roll in.
No judicial system is perfect, and we applaud you, in the
law enforcement community, for working to make it better. We
believe that the sentencing guidelines are the consequences
used to hold traffickers accountable for their actions. These
guidelines are established to act as deterrents to the would-be
criminals, and if these are removed, we send the wrong or, at
best, a very mixed message.
In the 2-year timeframe, as an example, from 2019 to 2020,
the agencies that currently report drug seizures to the
National Seizure System at the El Paso Intelligence Center
reported the seizure of over 125,000 kilograms of cocaine. For
that same timeframe, the HIDTA groups along the United States-
Mexico border, in the designated counties, not the entire
State--of the 4 States along the border, we reported 68,376
kilograms, combined, of the cocaine. When you combine those at
the current market-value price per kilo, that means that we
were able to take away from those drug cartels $5,000,708,965.
That's a lot of money, which is why they are in the business.
It is for the profit.
According to the Drug Enforcement Administration forensic
laboratory, cocaine purity levels continue to be at high
levels, at an average of 83 percent. Cutting agents are used to
increase the weight and profit for the cartels. In 2016, 60
percent of those 1,500 drug submissions reported the use of
fentanyl mixed in with that cocaine. Street-level dealers, like
their cartels, fight for control over sales territories, which
is one of the things that makes them violent, and the innocent
are the ones that suffer. The replacement of a street-level
dealer happens almost instantaneously if they are arrested. Any
change in our laws that minimizes the consequences of actions
by these monsters gives the impression that our society is
willing to tolerate the abuse of our public by individuals that
care not who they hurt, as long as there is a monetary gain for
them.
Narcotics officers will continue to fight to lower the
availability of illicit drugs, and a modification in our
judicial system has to be made, but not at the expense of those
that are already suffering from the drug use disorders. Thank
you, gentlemen, all of you, for your endeavors to make these
corrections and for doing your part to protect our citizens.
Thank you for the opportunity to testify, and I look forward
and welcome your questions.
[The prepared statement of Mr. Garcia appears as a
submission for the record.]
Senator Booker. Mr. Garcia, we are grateful that you are
here. I also have the privilege of assuming a role of Deputy to
Chuck Grassley again in just giving a brief introduction to
Steven Wasserman. Mr. Wasserman, you come also with a great
demonstrated dedication to the country. You are--have been an
assistant U.S. attorney in the District of Columbia since 2003.
Today you're appearing in your capacity as a Member of the
Board for the--of Directors for the National Association of
Assistant U.S. Attorneys. You obviously have distinguished
yourself within that organization, because you were vice
president of policy for its executive committee from 2018 to
2020. Your legal experience is significant, and previously you
were a trial attorney focused on organized crime at the United
States Department of Justice from 1996 to 2003.
If you'll allow me, sir, you and I have something in
common. We are both--stand in the shadow of siblings that are
better than us. Your sister is Debbie Wasserman Schultz,
someone who people on both sides of the aisle have a lot of
affection for. Thank you very much. Would you please give us
your testimony?
STATEMENT OF STEVEN WASSERMAN, VICE
PRESIDENT FOR POLICY, NATIONAL ASSOCIATION
OF ASSISTANT U.S. ATTORNEYS, WASHINGTON, DC
Mr. Wasserman. Thank you, Chairman Durbin, Ranking Member
Grassley, Senator Booker, and Members of the Committee, for the
opportunity to appear before you. It's an honor to testify as
vice president for policy for the National Association of
Assistant U.S. Attorneys. I'm here today solely in my
individual capacity with NAAUSA and not on behalf of the
Department of Justice or my U.S. attorney's office.
NAAUSA represents our Nation's more than 6,000 Federal
prosecutors and civil attorneys across our 94 judicial
districts. We stand firm in our oath to protect the innocent
and prosecute the guilty. We are guided by the Constitution and
will always enforce the laws of Congress equally and fairly. To
that end, we're not here today to oppose or support any
legislation but rather provide practical insights into our
experience in the field and on the front lines of our Nation's
justice system.
While the underlying rationale behind the EQUAL Act is that
powder cocaine and crack cocaine should be treated the same for
purposes of sentencing, make no mistake, powder cocaine and
crack cocaine are not equal. There are several reasons that
support this reality that I'd like to highlight in my
testimony.
First, crack is more addictive than powder and thus more
destructive. Second, crack offenders have more troubling
criminogenic characteristics. Finally, third, the continued
rise in drug dependency in this country counsel caution in
moving forward with reforms that increase the number of
potentially recidivist offenders in communities.
First, the manufacturing process for crack cocaine makes
the substance more concentrated. The method of ingestion,
smoking, makes the effects shorter lived. Although chemically
crack and powder cocaine are similar, the intense, short-term
high produced by crack results in increased binge use, chronic
use, and greater risk of overdose compared to powder cocaine.
The more addictive nature of crack only enhances the risks of
death and community harm.
Federal law enforcement efforts are focused on drug
trafficking rather than possession. In these cases, there are
significant differences in the criminal histories, recidivism
rates, and involvement with weapons and violence between those
who traffic in powder cocaine and those who traffic in crack.
According to a 2017 report from the U.S. Sentencing Commission,
federally prosecuted crack offenders typically had a more
serious criminal history than federally prosecuted drug
trafficking offenders as a whole, including those who sold
powder cocaine.
Federal sentencing guidelines outline six criminal history
categories. Powder cocaine traffickers are 20 percent more
likely to be in the lowest criminal history category than are
crack traffickers. Further, 5.8 percent of crack offenders fell
within the highest criminal history category, and another 5.1
percent were designated as career offenders. Conversely, only
1.8 percent of powder cocaine traffickers fell within the
highest criminal history category, and 3 percent were
designated as career offenders.
Crack offenders have the highest recidivism rate of all
drug offenders, at 60.8 percent. This is nearly 20 percent
higher than the recidivism rate for powder cocaine traffickers.
For crack traffickers, assault was the most prevalent and
serious recidivist offense, with a rate of 27.4 percent. Drug
trafficking offenses represented the second most prevalent and
serious offense for crack offenders, at over 17 percent.
Rather than allowing more individuals to re-enter
communities earlier, only to re-offend and create additional
victims, we encourage Congress to ensure effective methods are
in place to prevent recidivism prior to release. While the
worst violence associated with the crack cocaine epidemic of
the 1980's and 1990's has subsided over the last 25 years,
Federal crack offenders continue to possess weapons at a higher
rate than powder cocaine traffickers. For example, the U.S.
Sentencing Commission reported that, in FY 2020, 39.3 percent
of crack offenders had their sentences enhanced for possessing
a weapon, 20 percent more often than powder cocaine
traffickers. The data further demonstrates that mark--this data
further demonstrates the marked differences between Federal
crack cocaine offenders and powder cocaine offenders.
As this Committee is likely aware, drug use and overdose
deaths are an epidemic deeply damaging our Nation. Cocaine
remains one of the most common causes of overdose deaths and is
now often mixed with other dangerous drugs. According to the
U.S. National Institute on Drug Abuse, between 2012 and 2016,
there was a 23-fold increase in the number of deaths involving
cocaine in combination with synthetic opioids like fentanyl and
fentanyl analogs. Reducing sentences for the most common re-
offenders and some of the most violent drug traffickers at a
time when drug use is so lethal and prevalent is concerning.
Should Congress ultimately determine that action is warranted
to equalize the penalties between powder cocaine and crack--and
also would encourage Members to consider lowering the quantity
thresholds for powder cocaine to match the existing thresholds
for crack?
As the Committee moves forward, we urge you to consider the
impact of these decisions on communities as a whole and the
potential victims of drug trafficking and recidivism. We thank
the Committee, Chairman Durbin, Ranking Member Grassley,
Senator Booker for providing us the opportunity to speak
regarding this important issue, and I look forward to your
questions. Thank you.
[The prepared statement of Mr. Wasserman appears as a
submission for the record.]
Senator Booker. Thank you very much. I would like to turn
to the Ranking Member, actually, to start with questions, if
possible.
Senator Grassley. I appreciate that privilege very much.
Thank you, Senator Booker. To----
Senator Booker. Mr. Ranking Member, obviously I am rusty as
anything about serving in this role. I skipped over a witness--
--
Senator Grassley. Well----
Senator Booker [continuing]. Who shot me a glance that is
illegal in the State of New Jersey, but----
[Laughter.]
--We're in DC, so--can I--may I allow him to speak?
Senator Grassley. Yes.
Senator Booker. Thank you very much, Mr. Ranking Member.
Mr. Coleman, forgive me. Would you please give your 5 minutes
of testimony, which will be followed immediately by the Ranking
Member Grassley's question?
STATEMENT OF RUSSELL COLEMAN, MEMBER,
FROST BROWN TODD, LOUISVILLE, KENTUCKY
Mr. Coleman. Thank you, Mr. Chairman, although I would say
I'm quite certain the Ranking Member's questions were much more
value-add than what I might bring to the Committee today. It is
an extraordinary privilege to sit at this table, in this room,
before the Committee. It's also an extraordinary privilege to
sit with this particular witness panel. With Mr. Charles, his
story of redemption. With Mr. Garcia, who represents an
entity--HIDTA is one of those acronyms that matter, in terms of
saving lives, in terms of empowering Federal, State, and local
aggressive drug task force efforts, and I applaud him for his
30 years of public service.
It's also a real privilege to sit with someone who
represents our Nation's assistant United States attorneys. As
your former colleague, then-Attorney General Sessions would
say, AUSAs are the coin of the realm. They're the coin of the
realm in implementing what this Committee and what Congress
passes, and they do an amazing job serving our country, and so
it's a real privilege, gentlemen.
This room, this beautiful wood-paneled room, is very far
from Louisville, Kentucky, and I take you to Louisville,
Kentucky in 2020. I take you to Louisville, Kentucky, last
year, a city where the relationship between law enforcement,
the relationship between public safety, the rule of law,
disappeared. I take you to a place where there was not a window
in downtown Louisville that one could look through without
seeing a piece of wood. I take you to a place where faith in
law enforcement by communities that were also wracked by the
highest homicide rate in the history of Louisville--a community
where overdose rates were up 5 percent for many of the
dangerous substances that we're talking about here. I take you
to a community that was broken.
As Justice Jackson, then-United States Attorney General in
1940, said to a group of U.S. attorneys in his favorite speech,
he said, ``Humility is the No. 1 characteristic that you need
as a U.S. attorney.'' I found, in the summer of 2020, in
Louisville, that's going to be the case whether you want it or
not, because I take you back to--and I'm so grateful for this
Committee, and hopefully there's no buyer's remorse. I'm so
grateful for this Committee in moving forward my nomination and
allowing me to serve as United States attorney in 2017.
After I took that oath, I was under the direction to charge
the most serious readily provable offense, and we did that in
the Western District of Kentucky. We used every tool in our
tool kit. We increased Federal firearms prosecutions 67 percent
over a 2-year period. Why did we do that? Because we were
looking at a homicide rate that had increased 110 percent. That
was the tool we thought we had in our tool kit, and at the end
of 2019, after we'd increased our gun prosecutions, we still
had almost 100 homicides.
Humility, Mr. Chairman, became the name of the game, as
United States attorney, because we increased our engagement
with our State and local partners. I have a one-pager, here, we
call it, that's covered by the tools that we're not talking
about: weight-based mandatory minimums, 924(c), 924(e), the
recidivist--851 recidivist enhancement, that's such a--these
are powerful tools that aren't on the table today. These
remain, and I wouldn't be at this chair, Mr. Chairman, if we
were removing these powerful tools, but what we're talking
about is building trust and more effectively using resources,
because the wheels came off, in terms of trust, in Louisville,
Kentucky, in 2020, between law enforcement and the communities
that we should serve.
I'm not a Pollyanna, to say that equalizing the disparity,
in this particular bill--that that would eliminate the
significant challenges between law enforcement and the
communities we police. I'm not a Pollyanna in that regard, but
this is a significant--this disparity is a significant limiting
factor in the relationship between communities of color, those
that are primarily impacted by violent crime and overdose death
in Louisville, Kentucky, and law enforcement. It is a limiting
factor.
You didn't mention in my--and I'm grateful for the
introduction. I served as an FBI Special Agent for a number of
years. Information is the name of the game in allowing us to
have clearance rates to more significantly impacting and
protecting people. The information flow is broken. The jury
nullification issue is a significant issue when communities of
color, those most significantly impacted, are not engaging with
law enforcement. It does not allow us to do our jobs as
effectively as we could. We have to look at different tools. We
have to look at trust-building.
This is--this modest proposal is a way of not touching the
significant mandatory minimums, frankly, that we need, that I
would argue we need in the Federal system, but allows us to
build bridges to a community that needs better relationship
with law enforcement. I close, other than saying how honored I
am to be joined by the National District Attorneys Association,
who carry the bulk of prosecutions in this country, by the
Major City Chiefs, who attempt to police urban areas that have
seen this wrenching of relationship torn apart between those
that we're seeking to protect and law enforcement--I close by
an eloquent comment from the gentleman who sat here just a
moment ago, Governor Hutchinson. He said, ``The efficacy of law
enforcement is dependent upon the community's confidence and
trust in the justice system. It must be fair and equitable.''
For us to do our jobs as law enforcement officers, we have
to try new approaches. We have to concede with humility where
we've failed. This is an effective tool that leaves our most
significant weapons in place. It leaves them alone but allows
us to tackle those that should be brought into the Federal
system and leave the street-level dealers to our National
District Attorneys Association colleagues to move forward on.
[The prepared statement of Mr. Coleman appears as a
submission for the record.]
Senator Booker. Thank you very much for that testimony. I
will turn to Chairman Durbin first and then followed directly
by Ranking Member Grassley.
Chair Durbin. Thank you, Mr. Chairman. Mr. Wasserman, I'm
going to keep on trying to come up with a bill that the
organization you belong to supports, but it's been difficult.
NAAUSA opposed the bipartisan First Step Act, which Ranking
Member Grassley and I helped to write, and if you had prevailed
in that situation, Mr. Charles would still be in prison. I'm
glad he's not. Your organization opposes the EQUAL Act, too,
which puts you out of step with many major prosecutor and law
enforcement organizations, the National District Attorneys
Association, Major Cities Chiefs, law enforcement leaders,
Association of Prosecuting Attorneys, and Law Enforcement
Action Partnership.
I'm trying to reconcile some of your testimony, and it's
difficult. I'm not an expert, and I'm not a scientist. I'm a
political scientist, whatever that is, and went to law school.
It doesn't qualify me as a scientist. When I read your
testimony distinguishing crack and powder cocaine, and you
refer to ``the intense, short-term high produced by crack
results in binge use and the rest'', and I'm quoting, it would
seem to me that you're saying that when you smoke it--cocaine--
as opposed to ingesting it, it creates this sensation in your
body.
I don't doubt that. It's quite possible. I would like to
ask you, couldn't we say the same for marijuana? Would a
marijuana brownie have--I don't know; no personal experience.
Would a marijuana brownie have less impact than smoking
marijuana, for example?
Mr. Coleman. I'm having a little trouble with my
microphone. Thank you, Chairman, for the question. Let me just
correct one thing. It's important to note that my association
is not opposing or supporting the bill. I think you mentioned
that we are opposing it. We have expressed concerns about it.
With respect to your question about marijuana and its
impact depending on how it is ingested, I think there can be
differences. I'm not a scientist, so I can't tell you the
differences in--at least as it relates to marijuana, how
ingesting it may impact the user. What I can say, though, is
that with respect to crack cocaine, as a member of the law
enforcement community, I can speak to the increased rates of
addiction, death, and recidivism that we consistently see with
crack compared to powder cocaine.
Drugs, in our society and in our sentencing scheme, are
differentiated based upon their perceived harm. Marijuana is
penalized significantly less than other drugs like cocaine,
crack, heroin, meth----
Chair Durbin. May I interrupt your----
Mr. Coleman [continuing]. Because of the perceived harm.
Chair Durbin. We do not make a distinction, do we, under
the law--marijuana in cigarette form as opposed to marijuana in
some other form? It probably is a mistake to use marijuana,
because the whole body of law relating to marijuana is changing
so dramatically in my State and others, but the point I'm
getting to is, marijuana is usually prosecuted by weight, is it
not, as opposed to the manner of ingestion?
Mr. Coleman. It's prosecuted by weight, as is--as are the
other drugs. I would note that crack cocaine is specifically
manufactured to be smoked for the effects that it has on the
user and because it's cheaper.
Chair Durbin. I would just say that I have been convinced,
or I wouldn't have embarked on this journey, that the science
is not on your side, on this. I would also add that the points
that you made use a word I've not seen before,
``criminogenic.'' Is that--yes, it is, ``criminogenic.'' When
we're dealing with Federal crack offenders with extensive
criminal histories or use of firearms, there is no argument in
the EQUAL Act that that should be ignored or forgotten. In
fact, it is certainly likely to come up in the sentencing
proceeding, as it should. Criminal histories, use of firearms,
all of those things should be considered, but we have addressed
ourselves primarily to nonviolent drug offenses. Senator
Grassley and I agreed that would be the standard, the threshold
which we'd use.
I'd just like to close, and I only have a few seconds.
Thank you to the whole panel. I'm sorry we couldn't get into
more detail, but the reason for this effort is Mr. Charles, a
man facing 35 years in prison. That is a rare sentence in its
severity, thank goodness, but to imagine that he was facing
that, based on the mistakes that he made in life, which he
readily acknowledges--it is always our first human instinct to
believe that raising the penalties on crimes will lead to
deterrence. We have clear evidence that did not work when it
came to the 100-to-1 disparity in sentencing. We ended up with
more addicts and a cheaper product on the street, just the
opposite of what we were counting on.
We've got to think anew on this, and I think we are
learning that drug addiction is, in fact, a disease that needs
to be treated as such. I think we're learning, also, with drug
courts, which many people applaud, including the previous
panel, that when you sit down with someone who is accused of a
drug crime, who is addicted, and deal with them in a more
humane and personal way, absent criminogenic elements, absent
guns and such, that you get a much better result and make the
communities that they're living in much safer. I thank this
panel very much.
Senator Booker. Thank you, Chairman. I'd like to go to
Ranking Member Grassley now.
Senator Grassley. Thank you, Senator Booker. First of all,
to Mr. Charles, not a question, but it's great to see you here
today, and it's wonderful to have somebody like you, with the
experience you've had, to testify about the inequities of our
judicial system. I'm grateful for your continued support of the
First Step Act and for your voice of being part of the
conversation today.
My first question's going to be to Mr. Wasserman and Mr.
Coleman. Leading into that question: the vast majority of
Federal inmates will one day leave prison, re-enter society.
Former inmates should be productive citizens upon release and
shouldn't return to a life of crime. The First Step Act
encourages successful re-entry through prison programs--re-
entry programs. That's why I'm concerned by the Sentencing
Commission's data in which--the FY 2020 report showing that
those offenders who distribute crack cocaine have higher rates
of recidivism than any other drug dealer. To you two, as
prosecutors with firsthand knowledge of how these
investigations and prosecutions go, is recidivism an important
factor that Congress should weigh, in evaluating any change in
the sentencing laws for cocaine? Why or why not?
Senator Booker. Mr. Wasserman.
Mr. Wasserman. Thank you, Ranking Member Grassley.
Absolutely, recidivism is an important factor in how the Senate
should move forward. As I mentioned, crack offenders recidivate
at the highest level of all Federal drug offenders--crack
traffickers, I should say. What we're talking about, really, is
that these people are going back into their communities and re-
victimizing the members of their community. It is, I think, an
oversimplification to focus solely on disparate impact based on
race, because you have to consider the fact that the
disproportionate negative impact of addiction and violence that
flows from crack cocaine on primarily the African American
community also needs to be considered, and recidivism only
magnifies that problem for communities of color.
Mr. Coleman. I'd go back to your comment, Senator Grassley,
that we must prioritize public safety at all times. Everything
must be viewed through the lens of prioritizing public safety.
If you look, and we have a tremendous amount of data from those
released under the First Step Act--very low recidivism rates,
to begin with. Very low recidivism rates. We retain tools when
recidivism does occur. We retain enhancements, we retain the
ability to return those individuals into custody, if need be,
but the reality--and it's an important point that we haven't
talked about much here--is the infrequency of seeing crack
cocaine now.
I won't presume to say we're--it's not still extant.
Certainly, it is, but in the Western District of Kentucky,
during the three and a half years I served as United States
attorney, it was exceedingly rare to see crack cocaine. It is--
it remains a threat. I would not for a moment hesitate in
saying that we must treat it as a dangerous substance. We still
have the mandatory minimums, if this bill were to go forward,
to do that, but we're simply not seeing it at any degree of
quantity. The threat is elsewhere now, sir.
Senator Grassley. To Director Garcia, you mentioned in your
testimony that the stream of cocaine coming to the U.S. from
Mexico is consistent. You also noted that cocaine being mixed
with synthetic opioids like fentanyl is a growing problem. Do
you think that lowering the sentencing ratio of crack to powder
cocaine could make it easier or more appealing for Mexican drug
cartels to smuggle cocaine across the border?
Mr. Garcia. Thank you, Senator. The lowering of the
sentencing guidelines for crack cocaine--I don't know that it
would make it easier for the drug cartels to bring it in. The
drug cartels are not bringing in crack cocaine; they're
bringing in cocaine. It is only, as Mr. Wasserman said, then
cheaper to sell the crack cocaine, so therefore the street
dealer that buys a kilogram of cocaine can break it down into
so many smaller pieces that he can make more money of it, and
so therefore we believe that the lowering of the sentencing
guideline for crack cocaine, in and of itself, would not have
that type of effect.
As Senator Lee said earlier and Senator Booker followed up
on, the concern is, do we want to lower cocaine sentencing
guidelines, or do we want to raise cocaine sentencing
guidelines so that there's not that disparity between the two?
I think that that's something that this body has to take into
consideration.
Chair Durbin [Presiding]. Thank you, Senator Grassley.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Mr. Garcia, I want
to direct some questions to you. First of all, thank you for
being here today, and thanks for your service to the people of
Texas and the United States. I think the Southwest Texas High
Intensity Drug Trafficking Area program plays a very important
role in dealing with the scourge of illegal drugs.
I think what you can offer us is a reality check for how--
what conditions are on the ground. One reason why I hope that
the Vice President, as the designated individual to help the
administration deal with the current border crisis, will
actually travel to the border, is that she can do what I try to
do every time I go to the border, which is to listen to the
experts and understand the circumstances on the ground and what
we might be able to do to make them better. Can you explain
what effect the current border crisis, this surge of 180,000
people a month on the border--what impact has that had on your
work and the work of your colleagues who are trying to stop the
flow of this poison across the border into the United States?
Mr. Garcia. Thank you, Senator. As you discussed earlier
with the previous panel, our partners at the Border Patrol are
overwhelmed. They are swamped with having to deal with this
humanitarian issue. As a result, in the State of Texas, the
Governor has instructed the Texas Department of Public Safety
to step up and fill that void. At the same time, our local
sheriffs have taken up that responsibility to fill some of that
void.
Even with the amount of--even with the reduction of tourism
and travel between the two countries, the levels of cocaine
seizures that were done in 2020 remain the same as that prior
to the COVID situation, so we know that it's still coming in.
We understand that our drug trafficking organizations are
international criminal organizations. They're taking advantage
of the situation. They're finding that loophole. They're
finding that ability to come in, and that's exactly what
they're doing.
Senator Cornyn. As I mentioned to Ms. LaBelle, in my visits
to the border and talking to the Border Patrol, they tell me
the very fact that they're having to deal with all these
unaccompanied children, for example, has taken a lot of that--
lot of Border Patrol off the front lines. Do you believe that's
part of the business model or plan or strategy on the part of
the cartels, to flood the Border Patrol and the border so that
it can open up gaps that they can then exploit?
Mr. Garcia. On a personal level, yes, sir, I believe so.
Senator Cornyn. Yes.
Mr. Garcia. I think that they tried it several years ago,
when we had the first wave of undocumented children that came
in, and we--they saw what they could get away with. I believe
that this is just another way for them to do a distraction so
that they can move their poison in.
Senator Cornyn. Senator Sinema, from Arizona, another
border State Senator, and I, as well as Henry Cuellar, a
Congressman from Laredo, and Tony Gonzales, who represents the
23d Congressional District, have introduced a bipartisan,
bicameral bill to try to provide additional tools to Border
Patrol and those Government officials responsible for dealing
with this surge, to try to begin to mitigate some of the pull
factors. I realize you're probably not an immigration
specialist. You're a law enforcement officer, and you deal with
investigating and prosecuting people for crimes. You mentioned
the fact that this is not only having an impact on the Border
Patrol themselves but also on the border communities, including
the local sheriffs and police departments. Are they seeing an
increase in crime and other offenses, as a result of the fact
that there are not just children coming across; there are
actually sex offenders, people who have committed numerous
crimes for which they've been convicted, but they mix
themselves in with these other migrants who are coming for
other reasons? Are those threats to local communities and to
the United States, in your opinion?
Mr. Garcia. There has been an increase that we have noticed
in the amount of crime; that has stepped up. Primarily, it's
the crimes of theft, burglaries that have occurred because the
migrants are coming in or these individuals are coming in, and
they are in need of things, and so they go after it. What is
most affecting is the destruction of property to the ranches
and to the farms that are happening.
The sheriff's departments, again, as I said, are
overwhelmed. Their jails are also full. We have no--they have
no place to house them. All of those things combined take what
I would consider a snowball effect upon this country and upon
the law enforcement officers that are sworn to protect it.
Senator Cornyn. Thank you, Mr. Garcia. Thank you very much,
Mr. Chairman.
Chair Durbin. Thank you, Senator Cornyn. To your point that
you've raised twice, now, I hope we can get some data. I think
we both want to see it. The best data I can come up with on
drug seizures, ports of entry versus between ports of entry, is
2020, FY 2020. It would not reflect the current surge in border
activity. Maybe if we can get that information, it would be
helpful in understanding this.
Senator Cornyn. Oh, I'm sure Mr. Garcia may be able to
enlighten us a little bit, but of course they're coming in both
places, both across the ports of entry--and you've made the
important point that the ability to scan and detect bulk drugs
coming across the ports of entry are--that's important, and it
needs to get better, and it sounds like we're on a pathway
there, but the cartels are not stupid, and they realize if they
can't get the drugs across the ports of entry, they're going to
come between the ports of entry. That's why you see reports of
people dressed in either camo or all in black, carrying
backpacks of drugs across the border, through--between the
ports of entry, and of course, as we've pointed out, fentanyl--
it doesn't take a lot of fentanyl to kill somebody or to--that
you can put a lot of it in the backpack. Let me just put it
that way. Thank you.
Chair Durbin. Thank you very much, Senator Cornyn. I now
turn back over to Senator Booker. Musical chairs. Here we are.
I'm going to vote on the floor, as he just did.
Senator Booker [Presiding]. All right. Do I need to hold--
so, this is when the trouble starts, when all my Senior
Senators leave the room and leave me alone with the panel.
[Laughter.]
Gentlemen, you should be afraid. I'm grateful, again--let
me just get my questions open, here. Mr. Charles, clearly I
want to start with you, my friend, because I've gotten to know
you quite well over these years, and what I'd like to know,
first and foremost, is, what do you think about, in general,
about the mandatory minimums, in your own experience--that
difference between 10 years and 35 years?
You've been really blunt with me about sort of the people
you observed. Can you maybe just say, for the record, sort of,
are the longer--decades longer, often--do they make a
difference in terms of the impact on individuals? Maybe even
just from your own calculations, when you were living a life,
as you admit, of crime, were you--were mandatory minimums
affecting your thoughts? Were they acting as a deterrent of
you, should you have gotten caught?
Mr. Charles. Oh. No, the mandatory minimums--I'm dead set
against mandatory minimums, the reason being is because I
believe that the judge should have discretion to be able to
sentence a person based on the particulars of that person: in
other words, the past criminal history of that person, their
role in the offense, as well as their culpability. I believe
that the judge has the discretion to sentence a person to a
shorter sentence or a longer sentence, based on that. When it
comes to the mandatory minimums, you are bound by the
guidelines to impose this sentence.
In my case, when I received 35 years--and the mandatory
minimum was invoked because the United States Sentencing
Guidelines was mandatory when I was sentenced in 1996, and
because of that, I received the 35-year sentence. As I stated
earlier in my testimony today, that sentence exceeded by 20
years what a sentence of 1-to-1 would have been, had my offense
been powder cocaine. As a matter of fact, the judge that
actually released me in 2019, Judge Aleta Trauger, she stated
that, because I had satisfied my sentence for the other
offenses, that I was entitled to immediate release. I satisfied
those other sentences 10 or 12 years ago. It was the crack
cocaine that continued to hold me bound.
Senator Booker. The weapons possession and all that, you
satisfied those, and in many ways you were seeing a longer
sentence for yourself than actual violent offenders got for
other crimes. That's correct, right?
Mr. Charles. That is correct, sir.
Senator Booker. You were a nonviolent drug offender, in for
a longer period of time than people who showed a propensity
toward violence; indeed, were convicted of violence. Thank you
very much, Mr.--Mr. Coleman, you heard me, I had a great
conversation with Senator Lee, and we were both talking about
what the right rectification of this was, whether to lower the
crack criminal penalties to equal the powder ones, or to raise
the powder ones to equal the crack cocaine penalties. Could you
give some thought--I asked Governor Hutchinson about that. I'm
curious, from your perspective, what you think.
Mr. Coleman. I'm grateful for the opportunity to revisit,
because my default reaction was the converse of where we sit
today. My default was, as a prosecutor, why should we concede?
Why shouldn't we take the alternate route in bringing down
those thresholds for powder? As I looked at the bill, and based
upon my experience the last few years as a United States
attorney and coupling it with the trend that--and that arc of
justice with this Committee is toward removing low-level
offenders from the Federal system so we can better steward our
finite resources.
As much as our NDAA, often times our State partners think
we have unlimited resources in the Federal system, we don't. We
can always use additional assistant United States attorneys. We
can always use new agents. If we could take some of those
resources that are being utilized to house low-level offenders
or avoid, in this hypothetical, raking in a whole new category
of low-level offenders that the State system is uniquely
equipped to address, then that would be the preferred route.
Again, my default reaction was just as you suggest, just as
Senator Lee raised, to go the other route, but if we're
attempting, as this Committee is, and what makes sense on the
ground, to better steward limited resources and remove the
lower-level offenders--from the Federal system, that is--again,
by not--leaving in place--and I know there's disagreement in
terms of mandatory minimums, but leaving those powerful tools
in place, this route, your route, this bill, coupled with the
ability to build that bridge, start building that bridge,
addressing the limiting factor that we have between communities
of color and law enforcement--again, this won't eliminate that,
but this matters to communities in Louisville, Kentucky,
African-American communities.
I've heard it time and time again. They may not know the
specific 841 provision, but they know that there's a disparity
there. In terms of whether I'm trying to recruit a source or
garner information or affect clearance rates, it's a limiting
factor for law enforcement efficacy.
Senator Booker. Mr. Coleman, I have another question for
you, but I'm going to use the Chairman's prerogative and yield
to my friend from Texas, Senator Cruz. He's got, I'm sure, a
million things to do; I'm here for the duration. I'm going to
yield and let my friend go ahead.
Senator Cruz. Thank you, Mr. Chairman. We have a drug
crisis in America. We have an opioid crisis in America that is
taking far too many lives. Unfortunately, this drug crisis is
getting worse with the open-border policies of Joe Biden and
Kamala Harris. Since 1999, according to the CDC, nearly 850,000
people have died from drug overdoses. One of those 850,000 was
my sister Miriam.
This is a crisis that affects everyone in America. The
numbers are staggering. In the 12-month period ending in
September 2020, over 90,000 people died of an overdose, a
nearly 30 percent increase over the previous year. Cocaine
overdose deaths are at record highs. Between 2013 and 2019,
deaths involving cocaine more than tripled, and in 2020 alone,
the CDC estimates that 20,000 Americans died from a drug
overdose involving stimulants, including cocaine.
Drugs not only take the lives of the users, but they lead
to violence. Criminal dealers, cartels, gangs ruthlessly employ
violence. According to the U.S. Sentencing Commission, weapons
were involved in 25 percent of all drug trafficking offenses.
Strikingly, nearly 40 percent of individuals convicted of
trafficking crack cocaine carried a weapon. We're seeing the
consequence in our communities as violent crime is soaring.
Indeed, just today the White House has come out
acknowledging the violent crime epidemic that is happening on
this administration's watch. New York, for example, had 45
percent more murders and 97 percent more shootings last year.
Chicago had 274 more murders and almost 1,500 more shootings in
2020 than in 2019.
Fentanyl seizures this year are up 264 percent over last
year. Cocaine seizures are up 149 percent from last year.
According to the CBP, the southwest border is the key entry
point for most drugs. Yet this Committee is not debating, ``How
do we stop this massive flood of drugs that is killing
Americans, killing children, killing vulnerable Americans,
leading to violence, leading to trafficking, leading to gangs
and cartels?'' We're not debating that.
Mr. Garcia, would the bill before this Committee in any way
address the problem of Mexican drug cartels smuggling cocaine
and other dangerous drugs across the border?
Mr. Garcia. Not that I can think of, Senator.
Senator Cruz. When I visited the southern border this past
March, the Laredo field office of the CBP told us that fentanyl
seizures were up 2,067 percent. Cocaine seizures were up 187
percent over the previous month. Mr. Garcia, do you agree that
the current situation at the border makes it easier for Mexican
drug cartels to smuggle illegal drugs like cocaine into the
country?
Mr. Garcia. We believe that the current situation at the
border and how it has tied up our partners in the Border
Patrol, primarily, has opened the door for those cartels to
increase their smuggling of the various type of drugs.
Senator Cruz. Can you please describe for this Committee
the human consequences, the very real human consequences and
harms that come from dramatically increased illegal drug
traffic that is coming across our southern border right now?
Mr. Garcia. The illegal drug trafficking trade, Senator, is
the fact that it doesn't affect only those citizens here in
this country. It affects the citizens from the source
countries, to begin with, the transportation and the
transnational company--countries that they traverse. At the
border, it affects those people that are involved in the
smuggling of it.
It--forget the environmental impacts that it might have,
but as those drugs reach the United States and they are
distributed across this country, we don't know what it is
that's being mixed with them. They found out that the use of
fentanyl and fentanyl analogs, in addition to marijuana,
cocaine, heroin, you name it--they're mixing it in with
everything that they can, because the people that they're
selling this poison to are getting an effect of it. To answer
your question, it is devastating. It continues to devastate.
Senator Cruz. A final question. If the Biden administration
continues its open-border policy and we continue to see more
and more illegal drug smuggling into this country, should we
expect more and more overdoses, more and more violence, and
more and more murders?
Mr. Garcia. Senator, I speak to you as a law enforcement
officer, not as the representative for ONDCP or even the HIDTA
program, other than my fellow law enforcement officers. I come
to you because you, as this body, have to do something to
correct our judicial system. You have to do something to fix
this.
I'm providing you my experience and my expertise in law
enforcement to tell you, whether it is the Biden administration
or whether it's the prior administration or any other
administration that comes after, if we don't secure our border
and if we don't curtail the amount of drugs that are coming
into this country, our citizens will continue to suffer. As a
result, we have limited control over the violence, over the
deaths, over the other types of crimes that are a result
thereof.
Senator Cruz. Thank you.
Senator Booker. Thank you, Mr. Cruz. I would like to turn
to Senator Blackburn now for her questioning.
Senator Blackburn. Thank you, Mr. Chairman. Mr. Charles, I
just want to say I am so delighted to see you here today.
Mr. Charles. Thank you.
Senator Blackburn. I want to thank you for continuing to be
a voice and to speak up. I think it's necessary, and I think
you have an important message, and you're an important voice in
this entire discussion. Thank you very much for taking the time
to be here today. You probably have found it's about as hot
here as it is in Nashville.
Mr. Charles. Yes, ma'am.
Senator Blackburn. Welcome to this muggy weather.
Mr. Garcia, I want to talk with you for just a moment, if I
may. You were just talking about the impact of drugs and what
you're seeing at the border, and of course you're right there
in Texas. In Tennessee, I many times will say, because of the
open-border situation that we're facing right now and have for
the last several months, every town is becoming a border town
and every State a border State. Certainly when I speak with law
enforcement, they are living this out every day because of the
impact of drugs on our city streets and in our communities.
As I talk to moms, one of the things that they have
mentioned to me is fentanyl, and you were just referencing
this, so--and the distress that they're seeing with fentanyl
now being used in pills that are made to look like prescription
pills, fentanyl that is laced into marijuana, fentanyl that is
laced into cocaine. These--this is deadly. It is absolutely
deadly. If you would speak to the volume that you are seeing
come across the border and how that compares to what we have
seen in years earlier.
Mr. Garcia. We're seeing--thank you, Senator Blackburn. We
are seeing an increase in the amount of fentanyl coming across
the border, not only in the south Texas area but primarily in
Arizona and southern California. The fentanyl that is being
produced in Mexico is being produced, namely, by the Sinaloa
Cartel, as well as the----
Senator Blackburn. That is El Chapo's cartel?
Mr. Garcia. Yes, ma'am.
Senator Blackburn. Okay.
Mr. Garcia. The Cartel Nueva Generacion, the CNJ Cartel,
that is also from the western part of the country. Therefore,
in south Texas, although we are seeing an increase in fentanyl,
we're not seeing it to the degree that our counterparts in
Arizona and in southern Florida are.
Senator Blackburn. The majority of drugs that are on the
street in the country come across the Arizona border, correct?
Mr. Garcia. I'm sorry?
Senator Blackburn. The majority of street drugs that are in
the country come across the Arizona border, correct?
Mr. Garcia. The majority of the street drugs that are in
this country come across the entire southwest border.
Senator Blackburn. Okay.
Mr. Garcia. From Brownsville to San Diego, it's--that's
where it's coming across.
Senator Blackburn. Okay.
Mr. Garcia. Our fentanyl has increased, like I said, but
for us, it is not our No. 1 drug of concern. Our No. 1 drug of
concern right now is methamphetamine, but the problem that we
face, as you stated earlier, Senator, is the fact that the
fentanyl is being mixed with pretty much every other drug.
Senator Blackburn. The number of deaths--Mr. Wasserman, I
would assume you all are tracking deaths that are related to
fentanyl. Have you seen an uptick? What kind of uptick are you
seeing?
Mr. Wasserman. I mean, the data from the government
indicates that--and I believe Director LaBelle testified that
75 percent of the deaths in 2020, of the 90,000 or so, had some
opioid--and she may have even said fentanyl, if I heard her
correctly--involved in the death. While I work in the District
of Columbia, my knowledge is certainly more focused on that
area. My understanding of the larger fentanyl problem is, yes,
it's a serious epidemic.
Senator Blackburn. I will tell you that this is something
that moms talk about a lot, and the dangers that are associated
with this, and the absolute fear. They look at how this has
moved into middle school kids and the concerns that are there;
children that do not know what they're coming up against. This
is something that is just so deadly. We thank you for the work
that you're doing. Mr. Charles, we thank you for your voice in
this discussion.
I have some other questions that will be submitted for
responses in writing, and I thank you all for taking your time
to come before us today. Thank you, Mr. Chairman.
Senator Booker. Senator Blackburn, we thank you always for
your thoughtful questions. This has been a really constructive
hearing. We're going to have to bring it to a close.
I do want to say, on behalf of Senator Durbin, he called
the first--12 years ago, the first hearing for the complete
elimination of this disparity. He thought it was unjust then,
and he's still been leading, in many ways, as my mentor in this
effort. The Fair Sentencing Act, the First Step Act have
brought us closer to doing away with this wrong, but we can't
let another decade go by without addressing this injustice. We
need the EQUAL Act, and we need to pass it into law.
I know Senator Durbin pledges himself to this mission. I
do, as well, and the great thing is, we have a bipartisan
coalition that's growing, and some of my colleagues today have
demonstrated their openness, at least, to potentially working
with us on that.
I want to put into the record letters of support for the
EQUAL Act from the Major City Chiefs Association, from the Due
Process Institute, from the National District Attorneys
Association, from the Americans for Tax Reform, from R Street,
and from the American Conservative Union.
[The information appears as a submission for the record.]
I want to say one more time to the witnesses, thank you for
being here. All four of you, as I tried to indicate, and I hope
people understand, are living your lives in accordance to the
hope that we can make this Nation safer and stronger and better
for all.
I do, unfortunately, want to burden you a little bit more,
because questions for the record will be open until Tuesday. As
my friend Senator Blackburn said, she's going to have some
questions for you all for the record. I imagine my team will,
as well. The record's going to be open until June 29th, 2021,
at 5 p.m., and the record will remain open to letters and
similar materials.
Senator Booker. With that gentlemen, I apologize; there is
a lot going on, on the floor, right now, and I'm going to have
to head there, and I won't be able to--Charles, I won't be able
to get down there and hug you. I'm going to have to sprint out
this way, man. I just try to hug all the bald people I see,
brother, and you've got such a great head on your shoulders. No
disrespect to the other gentlemen, but come on.
Thank you, gentlemen. This has been really helpful. With
that, this hearing is adjourned.
[Whereupon, at 12:47 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Miscellaneous submissions:
Heritage Foundation.............................................. 101
National Association of Police Organizations, Inc. (NAPO)........ 109
National Narcotic Officers' Associations' Coalition (NNOAC)...... 98
Office of the Special Narcotics Prosecutor for the City of New
York.......................................................... 96
San Diego Imperial Valley HIDTA.................................. 110
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