[Senate Hearing 111-559]
[From the U.S. Government Publishing Office]
S. Hrg. 111-559
RESTORING FAIRNESS TO FEDERAL SENTENCING: ADDRESSING THE CRACK-POWDER
DISPARITY
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HEARING
before the
SUBCOMMITTEE ON CRIME AND DRUGS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 29, 2009
__________
Serial No. J-111-17
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
57-626 WASHINGTON : 2010
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PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JOHN CORNYN, Texas
RON WYDEN, Oregon TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
Bruce A. Cohen, Chief Counsel and Staff Director
Nicholas A. Rossi, Republican Chief Counsel
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Subcommittee on Crime and Drugs
RICHARD J. DURBIN, Illinois, Chairman
HERB KOHL, Wisconsin LINDSEY O. GRAHAM, South Carolina
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York CHARLES E. GRASSLEY, Iowa
BENJAMIN L. CARDIN, Maryland JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota TOM COBURN, Oklahoma
EDWARD E. KAUFMAN, Delaware
Joseph Zogby, Democratic Chief Counsel
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
prepared statement........................................... 103
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 105
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina....................................................... 11
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 152
WITNESSES
Breuer, Lanny, Assistant Attorney General, Criminal Division,
U.S. Department of Justice, Washington, D.C.................... 4
Hinojosa, Ricardo H., Acting Chair, U.S. Sentencing Commission,
Washington, D.C................................................ 9
Hutchinson, Asa, Asa Hutchinson Law Group, Rogers, Arkansas, and
former Administrator U.S. Drug Enforcement Agency.............. 26
Parker, Cedric, Alton, Illinois.................................. 28
Timoney, John F., Chief of Police, Miami Police Department,
Miami, Florida................................................. 25
Walton, Reggie B., District Judge for the District of Columbia,
on behalf of the Judicial Conference of the United States,
Washington, D.C................................................ 7
QUESTIONS AND ANSWERS
Responses of Ricardo H. Hinojosa to questions submitted by
Senators Coburn and Grassley................................... 36
Responses of Asa Hutchinson to questions submitted by Senator
Grassley....................................................... 80
Responses of Reggie B. Walton to questions submitted by Senator
Grassley....................................................... 81
Questions submitted by Senator Grassley to John F. Timoney and
Lanny Breuer (Note: Responses to questions were not received as
of the time of printing, August 9, 2010)....................... 82
SUBMISSIONS FOR THE RECORD
Austin-Hillery, Nicole M., Director and Counsel, Brennan Center
for Justice, Washington, DC, statement......................... 84
Breuer, Lanny, Assistant Attorney General, Criminal Division,
U.S. Department of Justice, Washington, D.C., statement........ 90
Hall, John Wesley, President, National Association of Criminal
Defense Lawyers, Washington, DC, statement..................... 106
Hanson, Glen, Professor, Department of Pharmacology and
Toxicology, University of Utah, Salt Lake City, Utah, statement 110
Hillier, Thomas W., II, Federal Public Defender, Western District
of Washington, Chair, Federal Defender Legislative Expert
Panel, and Jon Sands, Federal Public Defender for the District
of Arizona, Chair, Federal Defender Sentencing Guidelines
Committee, statement........................................... 111
Hinojosa, Ricardo H., Acting Chair, U.S. Sentencing Commission,
Washington, D.C., statement.................................... 130
Hutchinson, Asa, Asa Hutchinson Law Group, Rogers, Arkansas, and
former Administrator U.S. Drug Enforcement Agency, statement... 146
Kosten, Thomas, MD and Andrea Stoler MD, Baylor College of
Medicine, Departments of Psychiatry and Neuroscience, Houston,
Texas, statement............................................... 150
Mauer, Marc, Executive Director, Sentencing Project, Washington,
DC, statement.................................................. 155
NAACP Legal Defense & Educational Fund, Inc, John Payton,
Director-Counsel and President, Washington, DC, statement...... 165
National District Attorneys Association, Joseph I. Cassilly,
President, Alexandria, Virginia, statement..................... 173
Parker, Cedric, Alton, Illinois, statement....................... 180
Price, Mary, Vice President and General Counsel, Families Against
Mandatory Minimums, Washington, DC, statement.................. 183
Seventy-Five Organizations & Law Professors in Support........... 189
Susman, Thomas M., American Bar Association, Washington, DC,
statement...................................................... 196
Timoney, John F., Chief of Police, Miami Police Department,
Miami, Florida, statement...................................... 204
Volkow, Nora D., MD, Director, National Institute on Drug Abuse,
National Institutes of Health, Department of Health and Human
Services, Washington, DC, statement............................ 207
Walton, Reggie B., District Judge for the District of Columbia,
on behalf of the Judicial Conference of the United States,
Washington, D.C., statement.................................... 215
RESTORING FAIRNESS TO FEDERAL SENTENCING: ADDRESSING THE CRACK-POWDER
DISPARITY
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WEDNESDAY, APRIL 29, 2009
U.S. Senate,
Subcommittee on Crime and Drugs,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Feinstein, Klobuchar, Kaufman,
Graham, and Hatch.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Chairman Durbin. This hearing will come to order. The
subject of today's hearing is ``Restoring Fairness to Federal
Sentencing: Addressing the Crack-Powder Disparity.''
This is the second hearing of the Crime and Drugs
Subcommittee in the 111th Congress, and first, a word about our
initial hearing, which focused on the greatest organized crime
threat to our country--the Mexican drug cartels. Based on what
we learned at the hearing, Senator Graham and I are working on
bipartisan legislation to crack down on drug cartels, which we
will introduce very soon.
There is a direct connection between Mexican drug cartels
and the subject of today's hearing--our drug sentencing policy
in America We learned at our first hearing that Mexican drug
cartels supply 90 percent of the cocaine in the United States
and that our drug policy, which focuses largely on criminal
sanctions instead of prevention and treatment, has failed to
stem America's insatiable demand for illegal narcotics.
Cocaine, whether powder or crack, has a devastating impact
on families and on our society, but we cannot address this
problem through law enforcement alone. We need a comprehensive
approach that cracks down on drug-trafficking organizations
while emphasizing prevention and treatment for addicts.
Our drug sentencing policy also is the single greatest
cause of the record levels of incarceration in America. Today
in the United States, more than 2.3 million people are
imprisoned. We have the most prisoners of any country in the
world, as well as the highest per capita rate of prisoners in
the world. One in 31 Americans are in prison, on parole, or on
probation, including one in every 11 African-Americans. And
over 50 percent of Federal inmates are imprisoned for drug
crimes.
The United States has made great strides in the last half
century in ensuring equal treatment under the law for all. When
it comes to the Federal criminal justice system, however,
inequalities are growing rather than shrinking. African-
Americans are incarcerated at nearly 6 times the rate of white
Americans, while Hispanics are incarcerated almost twice as
much.
Today we turn our attention to one especially troubling
aspect of our failed drug policy: The so-called crack-powder
disparity. It takes 100 times more powder cocaine than crack
cocaine to trigger the same harsh mandatory minimum sentences.
This chart here will indicate that disparity by chart. Under
current law, mere possession of 5 grams of crack--the weight of
five packets of sweetener--carries the same sentence as
distribution of half a kilogram of powder--or 500 packets of
sweetener. That is the difference.
The crack-powder disparity is one of the most significant
causes of the disparity in incarceration rates in America,
particularly the disparity between African-Americans and
Caucasians. The dramatically higher penalties for crack have
disproportionately affected the African-American community: 81
percent of those convicted for crack offenses in 2007 were
African-American, although only about 25 percent of crack
cocaine users are African-American. The low crack threshold
also diverts scarce law enforcement resources away from efforts
to combat major traffickers and drug cartels.
These racial disparities undermine trust in our criminal
justice system and have a corrosive effect on the relationship
between law enforcement and minority communities. As the U.S.
Sentencing Commission has said, and I quote, even ``perceived
improper racial disparity fosters disrespect for and lack of
confidence in the criminal justice system.''
This sentencing framework, created in 1986, was fueled by
fears about the newest drug epidemic and based on assumptions
that we now know were exaggerated or just plain false. And let
me tell you, I was one of those who voted for this disparity.
And if you look at the debate, when I was a Member of the House
of Representatives, you will find leading African-Americans in
the House of Representatives who were arguing for this
disparity. Crack was a new phenomenon. It was viewed as a
scourge. It appeared to be something out of control that needed
to be dealt with harshly and quickly, and that was the reason
that many of us supported that sentencing disparity. Today, on
reflection, we realize that decision was wrong.
We have learned a great deal since that vote. Vice
President Biden, the previous Chair of the Committee, was one
of the authors of the disparity himself. When he chaired a
hearing of this Subcommittee on this issue last year, he said,
``each of the myths upon which we based the disparity has since
been dispelled or altered.''
Some argue that the sentencing disparity is justified
because crack cocaine is associated with more violence than its
powder counterpart. But the truth is that crack-related
violence has decreased significantly since the 1980's, and
today 94 percent of crack cocaine cases do not involve violence
at all. And cases that do involve violence are subject to
increased sentences, anyway, including a mandatory minimum for
use of a weapon in connection with drug-trafficking offense.
Sadly, both the crack trade and, as we are witnessing along
our Southern border, the trade in cocaine powder are frequently
associated with violence. But the evidence just does not
justify a sentencing disparity between the two forms of the
same drug.
In the 110th Congress, I was the Chair of the Human Rights
Subcommittee, and we focused on issues like genocide in Darfur,
Internet censorship in China, and rape as a weapon of war in
the Democratic Republic of Congo. But Americans must also be
prepared to look ourselves in the mirror and recognize that we
are not above reproach. Our record-high incarceration rates and
the racial disparities in our criminal justice system are human
rights issues that we must face honestly.
The first important step we should take is to completely
eliminate the crack-powder disparity and to adopt a one-to-one
sentencing ratio for crack and powder cocaine. As the
Sentencing Commission has said, ``Revising the crack cocaine
thresholds would better reduce the [sentencing] gap than any
other single policy change, and it would dramatically improve
the fairness of the Federal sentencing system.'' Given what we
have learned during the last 23 years, the sentencing disparity
between crack and powder cocaine is both unjustified and
unjust.
During the course of these hearings this morning, we are
going to hear of one family that has been impacted, a family
from my State, by this sentencing disparity. It is shocking to
hear what has happened to this family because of a decision
which we made many years ago to create this disparity.
In closing, it is important to note that there is a
bipartisan consensus that we must address the crack-powder
disparity. In particular, I want to acknowledge and commend the
leadership of members of this Committee, Senators Hatch and
Sessions who have looked at this issue carefully themselves. I
look forward to working with them as well as my Ranking
Republican, Senator Graham, and other members of the Committee,
and the Obama administration to address this important issue on
a bipartisan basis.
Other members of the Committee will be joining us as we
proceed this morning, Senator Graham included, and he will have
an opening statement, which will be made part of the record at
this point in the record for this hearing.
Unless Senator Feinstein has an opening statement, I will
turn to our first panel of witnesses.
Senator Feinstein. If I could just say one thing. I have
been a cosponsor with Senator Hatch on changing the formula to
20:1. My interest in coming here this morning is to try and see
what the appropriate change should be. There are pros and cons,
if you go to 10:1, if you go to 0:0, whatever you go to. But
what I am most interested in, Senator--there is no question in
my mind that it needs a change--is to exactly what.
Chairman Durbin. Thank you, Senator Feinstein.
Now we will turn to our first panel. Each witness will have
5 minutes to make an opening statement before questions, and
their complete written statements will be included in the
record.
As is the custom of the Judiciary Committee, I ask the
witnesses to please stand and raise your right hand to be
sworn. Do you solemnly swear that the testimony you will give
is the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Breuer. I do.
Judge Walton. I do.
Judge Hinojosa. I do.
Chairman Durbin. Let the record reflect that the witnesses
answered in the affirmative.
Our first witness, Lanny Breuer, was just sworn in last
week--7 days on the job now--as Assistant Attorney General for
the Criminal Division at the Department of Justice, following
unanimous confirmation by the Senate last week. I am
appreciative that your first congressional testimony as head of
the Criminal Division is before this Subcommittee on this
issue. Your presence speaks volumes about the administration's
commitment to restoring fairness to Federal sentencing. It is
also a significant day because I understand Mr. Breuer is going
to make an important announcement, and we look forward to
hearing it.
Mr. Breuer began his career as an Assistant District
Attorney in Manhattan where he prosecuted both violent and
white-collar criminal cases. He later joined the law firm of
Covington & Burling, where he has worked with the exception of
a 2-year period, since 1989. From 1997 to 1999, Mr. Breuer
served as Special Counsel to President Clinton. He received his
B.A. and J.D. from Columbia University.
Thank you for being here today, Mr. Breuer, and please
proceed with your testimony.
STATEMENT OF LANNY BREUER, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Breuer. Mr. Chairman, thank you so much, Senator
Feinstein, thank you for giving the Department of Justice the
opportunity to appear before you today to share our views on
the important issue of the existing disparities in Federal
cocaine sentencing policy.
The Obama administration firmly believes that our criminal
and sentencing laws must be tough, predictable, fair, and not
result in unwarranted racial and ethnic disparities. Criminal
and sentencing laws must provide practical, effective tools for
Federal, State, and local law enforcement, prosecutors, and
judges to hold criminals accountable and to deter crime.
Indeed, the certainty of our sentencing structure is critical
to disrupting and dismantling the threat posed by drug-
trafficking organizations and gangs that plague our Nation's
streets. It is vital in the fight against violent crime, child
exploitation, and sex trafficking, and it is essential to
effectively punishing financial fraud.
Ensuring fairness in the criminal justice system is also
especially important. Public trust and confidence are essential
elements of an effective criminal justice system. Our laws and
their enforcement must not only be fair, but they must also be
perceived as fair. The perception of unfairness undermines
governmental authority in the criminal justice process. It
leads victims and witnesses of crime to think twice before
cooperating with law enforcement, tempts jurors to ignore the
law and facts when judging a criminal case, and draws the
public into questioning the motives of governmental officials.
Changing these perceptions will strengthen law enforcement,
and there is no better opportunity to address these perceptions
than through a thorough examination of Federal cocaine
sentencing policy.
Cocaine and other illegal drugs pose a serious risk to the
health and safety of Americans. Drug-trafficking organizations
and gangs that manufacture and traffic drugs have long posed an
extremely serious public health and safety threat to the United
States. The administration is committed to rooting out these
dangerous organizations.
In the 1980s, crack cocaine was the newest form of cocaine
to hit American streets. In 1986, in the midst of the exploding
epidemic, Congress passed the Anti-Drug Abuse Act, which set
the current Federal penalty structure for crack and powder
cocaine trafficking, punishing the crack form of cocaine far
more severely than the powder cocaine.
Since that time, in four separate reports back to 1995, the
Sentencing Commission has documented in great detail all of the
science of crack and powder cocaine, as well as the legislative
and law enforcement response to cocaine trafficking.
I will not review all of the information here other than to
note the mounting evidence documented by the Commission that
the current cocaine sentencing disparity is difficult to
justify based on the facts and science, including the evidence
that crack is not an inherently more addictive substance than
powder cocaine. Moreover, the Sentencing Commission has shown
that the quantity-based cocaine sentencing scheme often
punishes the low-level crack offenders far more harshly than
similarly situated powder cocaine offenders.
Additionally, Commission data confirms that in 2006, 80
percent of individuals convicted of Federal crack cocaine
offenses were African-American while just 10 percent were
white. The impact of these laws has fueled the belief across
the country that Federal cocaine laws are unjust. We believe
that the Commission's work forms the foundation for any
thorough review of Federal cocaine sentencing policy, and we
commend the Commission for all that it has done in this area.
Based in significant part on the work of the Commission, a
consensus has now developed that Federal cocaine sentencing
laws should be reassessed. Indeed, as set forth more fully in
my written testimony, may have questioned whether the policy
goals that Congress set out to accomplish have been achieved.
In the administration's view, based on all that we know
now, as well as the need to ensure fundamental fairness in our
sentencing laws, a change in policy is needed. We think this
change should be addressed in this Congress, and that Congress'
objective should be to completely eliminate the sentencing
disparity between crack cocaine and powder cocaine.
The administration is, of course, aware that there are some
who will disagree. The supporters of the current cocaine
penalty structure believe that the disparity is justified
because it accounts for a greater degree of violence and
weapons involvement associated with some crack offenses. This
administration shares these concerns about violence and guns
used to commit drug offenses and other crimes associated with
such offenses. Violence associated with any offense is a
serious crime and must be punished. And we think that the best
way to address drug-related violence is to ensure that the most
severe penalties and sentences are meted out to those who
commit violent offenses.
However, increased penalties for this conduct should
generally be imposed on a case-by-case basis, not on a class of
offenders, the majority of whom do not use any violence or
possess a weapon. We support sentencing enhancements for those,
for example, who use weapons in drug-trafficking crimes.
But we cannot ignore the mounting evidence documented by
the Commission that the current cocaine sentencing disparity is
difficult to justify. At bottom, the administration believes
that the current Federal cocaine sentencing structure fails to
appropriately reflect the differences and similarities between
crack and powder cocaine, the offenses involving each form of
the drug, and the goal of sentencing serious and major
traffickers to significant prison sentences. We also believe
that the structure is especially problematic because a growing
number of citizens view it as fundamentally unfair.
Accordingly, as I mentioned a moment ago, the
administration believes that Congress' goal should be to
completely eliminate the disparity.
Earlier this month, the Attorney General asked the Deputy
Attorney General to form and chair a working group to examine
Federal sentencing and corrections policy. I have the privilege
of being the Vice Chair of that effort.
In addition to studying issues related to prisoner re-
entry, Department policies on charging and sentencing, and
other sentencing-related topics, the group will focus on
formulating a new Federal cocaine sentencing policy, one that
aims to completely eliminate the sentencing disparity between
crack and powder cocaine, but also to fully account for
violence, chronic offenders, weapons possession, and other
aggravating factors associated in individual cases with both
crack and powder cocaine trafficking.
We look forward to working closely with Congress, Mr.
Chairman, and the Sentencing Commission on this important
policy issue and finding a workable solution.
As I stated at the outset, this administration believes
that our criminal laws should be tough, smart, fair, and
perceived as such by the American public, but at the same time
promote public trust and confidence in the fairness of our
criminal justice system. Ultimately, we all share the goals of
ensuring that the public is kept safe, reducing crime, and
minimizing the wide-reaching negative effects of illegal drugs.
Thank you for the opportunity to share the administration's
views, and I welcome any questions you may have.
[The prepared statement of Mr. Breuer appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Breuer.
The next witness is Judge Reggie Walton, here to represent
the Judicial Conference of the United States. After being
nominated by President George W. Bush, Judge Walton has served
on the U.S. District Court for the District of Columbia since
2001. He previously was an Associate Judge of the Superior
Court of the District of Columbia from 1981 to 1989, and from
1991 to 2001, having been appointed by Presidents Reagan and
George H.W. Bush. Between 1989 and 1991, Judge Walton was
Associate Director of the Office of National Drug Control
Policy and Senior White House Adviser for Crime. From 1976 to
1981, he also served as a Federal prosecutor. He received his
B.A. from West Virginia State College and his J.D. from
American University. Judge Walton has been outspoken about the
need to address the crack-powder disparity as well as other
racial disparities in our criminal justice system.
Thank you for your leadership on this and so many issues
and for joining us today. The floor is yours.
STATEMENT OF HON. REGGIE B. WALTON, UNITED STATES DISTRICT
JUDGE FOR THE DISTRICT OF COLUMBIA, ON BEHALF OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES, WASHINGTON, D.C.
Judge Walton. Thank you very much. Good morning, Chairman
Durbin and Senator Feinstein. I would ask that my written
testimony be made a part of the record, which I would like to
summarize.
Chairman Durbin. Without objection.
Judge Walton. It is an honor to have the opportunity to be
here on behalf of the Judicial Conference of the United States
to address what I believe is one of the most important issues
confronting our criminal justice system today. No one can
appreciate, I think, the agony of having to enforce a law that
one believes is fundamentally unfair and disproportionately
impacts individuals who look like me who appear before me all
too often and we have to impose sentences that we know are
unjust. And I hope that we finally have reached the point in
our history that we are prepared to address this significant
issue.
I, too, when I was a part of the Drug Office, advocated in
support of disparity between crack and powder because I, too,
thought, based upon the information available to us at that
time, that disparity at least on some level was appropriate.
However, we now know, as you indicated and as Mr. Breuer
indicated, that we were mistaken in many respects in reference
to crack cocaine. And I can tell you in reference to the issue
of violence that I see no greater level of violence in
reference to the cases that come before me involving crack
cocaine as compared to any other drug. And I think that alone
is sufficient justification to address this issue.
One of the other things I do in addition to my judicial
responsibilities is I chair the National Prison Rape
Elimination Commission, and in that capacity, I have traveled
all over the country into prisons and jails and held hearings
on that issue. And the one thing that I always find very
disturbing is when I go into prisons, even in parts of the
country where you think there are not a lot of African-
Americans, our jails are loaded with people who look like me.
And I believe that we have to do something and we have to do
something now to address this phenomenon that is affecting our
country and having a devastating impact on the African-American
community.
The problem not only affects what happens in the Federal
system, but it also has a significant impact on the entire
system. As a District of Columbia local judge, I experienced
circumstances, even though the sentencing law did not apply to
cases brought in the District of Columbia court system, when
jurors were unwilling to serve, who knew about the disparity
and said that they could just not do it because they thought
the process was unfair. I know of jurors who would tell me
after the fact, when they refused to convict, that even though
they thought the evidence was overwhelming, they were not
prepared to put another young black man in prison knowing the
disparity that existed between crack and powder in those types
of cases. And I think it is very unfortunate in America that we
have a sizable portion of our population who feel that the
system is unfair and feel that race underlies what is being
done in reference to how we prosecute and how we sentence
certain offenders.
So I hope that the Congress, with the support of the
administration and the understanding that the judiciary also
supports the effort, will finally address this problem. This is
not an issue that relates to the question of whether we are
being lenient on crime by addressing this problem. If that is
what it was about, people who know me know I would not be here
testifying because I believe that when people engage in
aberrant behavior, punishment is appropriate. But punishment
has to be fair, and it has to be perceived to be fair. And we
have to ensure that our citizenry is supportive of our laws,
because when you think about it, it is amazing that our court
system has the authority that it does within our society
because we do not have armies to enforce what we do. People go
along with what we do because they believe, by and large, that
the process is fair. But as I say, there are many of our fellow
Americans who do not believe that is true, and therefore, I
think it is time that we address this problem because
fundamental fairness requires that it be done.
Thank you.
[The prepared statement of Judge Walton appears as a
submission for the record.]
Chairman Durbin. Thank you, Judge Walton.
Judge Ricardo Hinojosa is Acting Chair of the U.S.
Sentencing Commission. After being nominated by President
Reagan, he served on the U.S. District Court for the Southern
District of Texas since 1983. He is also an adjunct professor
at the University of Texas Law School, and prior to being
appointed to the Federal bench, Judge Hinojosa was a partner at
the law firm of Ewers and Toothaker. Judge Hinojosa is a
graduate of the University of Texas and Harvard Law School. I
want to thank the Sentencing Commission for its efforts over
the last 14 years to call attention to the unintended effects
of the crack cocaine sentencing disparity. Since 1995, the
Commission has issued several reports exhaustively documenting
these effects and has consistently urged Congress to address
the disparity. I hope 2009 will be the year that Congress
responds to the Sentencing Commission's recommendations.
Judge Hinojosa, thank you very much for being here today,
and you may proceed with your testimony.
STATEMENT OF HON. RICARDO H. HINOJOSA, ACTING CHAIR, UNITED
STATES SENTENCING COMMISSION, WASHINGTON, D.C.
Judge Hinojosa. Chairman Durbin, Senator Feinstein, I
appreciate the opportunity on behalf of the United States
Sentencing Commission to discuss this morning Federal cocaine
sentencing policy.
As you have stated, Chairman Durbin, the Commission has
considered cocaine sentencing issues for many years and has
worked closely with Congress to address the disparity that
exists between the penalties for crack cocaine and powder
cocaine offenses.
As everyone knows, in the year 2007 the Commission
promulgated a crack cocaine guideline amendment to address some
of the disparities, but was and continues to be of the view
that any comprehensive solution to the problem of Federal
cocaine sentencing policy requires revision of the current
statutory penalties and, therefore, must be legislated by
Congress. The Commission once again urges Congress to take
legislative action on this important issue.
In the interest of time, I will briefly cover some of the
information submitted in my written statement.
Of the information that was sent to the Commission for
fiscal year 2008, approximately half of the cases that are
drug-trafficking offenses were either crack cocaine cases or
powder cocaine cases. Approximately 5,913 defendants were
sentenced for crack cocaine, about 24 percent of the drug-
trafficking cases, and 5,769 powder cocaine defendants were
sentenced in fiscal year 2008, which represents about 23
percent of the drug-trafficking cases.
African-Americans continue to comprise the substantial
majority of Federal crack cocaine offenders, approximately 80.6
percent of the defendants sentenced in fiscal year 2008, while
Hispanics comprised the majority of the powder cocaine
offenders. Approximately 52.5 percent of powder cocaine
offenders are Hispanic.
Federal crack cocaine offenders consistently have received
longer average sentences than powder cocaine offenders. In
fiscal year 2008, the average sentence for crack cocaine
offenders was 115 months compared to 91 months for powder
cocaine offenders, a difference of approximately 24 months, or
about 26.4 percent. Most of the difference is due to the
statutory mandatory minimum penalties. In fiscal year 2008,
crack cocaine and powder cocaine offenders were convicted under
mandatory minimum penalties at virtually equal rates--about 80
percent of the offenders--even though the median drug weight
for powder cocaine offenses was 7,000 grams of powder compared
to 52 grams for crack cocaine offenders.
In fiscal year 2008, only 14.3 percent of crack cocaine
offenders compared to 42.4 percent of powder cocaine offenders
received relief from the statutory mandatory minimum penalties
pursuant to statutory and guideline ``safety valve''
provisions. This is partly attributable to differences in
criminal history and weapon involvement.
In fiscal year 2008, 28.1 percent of crack cocaine
offenders compared to 16.9 percent of powder cocaine offenders
either received the guideline weapon enhancement or were
convicted pursuant to Title 18 U.S. Code Section 924(c). Crack
cocaine offenders generally have more extensive criminal
history, and 77.8 percent of crack cocaine offenders were
ineligible for the safety valve because they were in criminal
history categories higher than Criminal History Category I,
compared to 40.0 percent of powder cocaine offenders.
Another factor is the applicability of mitigating role
adjustment as provided by the courts in fiscal year 2008.
Approximately 5.1 percent of the crack cocaine offenders
received the mitigating role adjustment as opposed to 20
percent of the powder cocaine offenders who received the
mitigating role adjustment.
The sentencing disparity has been the subject of recent
Supreme Court case law. In Kimbrough v. United States, the
Court relied on the Commission's conclusion that the disparity
between the treatment of crack cocaine and powder cocaine
offenses fails to meet the sentencing objectives set forth by
Congress in both the Sentencing Reform Act and the 1986 Act.
The Court held that a sentencing court may consider the
disparity when determining an appropriate sentence in a crack
cocaine case.
In the Spears case, the Court held that under Kimbrough, a
sentencing court may vary from the crack cocaine guidelines
based on policy disagreements and may substitute with regards
to crack and powder its own drug quantity ratio with regards to
the crack cocaine guidelines.
With regards to the operation of the Commission's decision
to retroactively apply the 2007 guideline amendments, I would
like to give some information.
In the 1 year since the guideline amendment of 2007 was
made retroactive, the Commission has received approximately
19,239 sentence reduction motions that have been acted on by
the courts. Of those, approximately 70 percent--13,408--have
been granted, and the average reduction was 24 months from
approximately 140 months to 116 months. Approximately 30
percent have been denied, 5,831. Some of those have been denied
because the defendant had not been sentenced with regards to
crack cocaine. Others have been denied because the defendant
was not eligible either because of statutory mandatory minimums
or a career offender or armed career offender status and/or
were denied on other reasons on the merits.
The Commission's belief continues to be that there is no
justification for the current statutory penalty scheme for
powder cocaine and crack cocaine offenses and is of the view
that any comprehensive solution requires revision of the
current statutory penalties by Congress.
The Commission remains committed to its 2002 recommendation
that such statutory drug quantity ratio should be no greater
than 20:1 and recommends further that Congress increase the 5-
year and 10-year statutory mandatory minimum threshold
quantities for crack cocaine offenses, repeal the mandatory
minimum penalty provision for simple possession of crack
cocaine, and reject addressing the 100:1 drug quantity ratio by
decreasing the 5-year and 10-year statutory mandatory minimum
threshold quantities for powder cocaine offenses.
The Commission believes that the Federal Sentencing
Guidelines continue to provide the best mechanism for achieving
all of the principles of the Sentencing Reform Act of 1984 and
recommends that congressional concerns about the harms
associated with crack cocaine are best captured through the
sentencing guideline system.
The bipartisan United States Sentencing Commission
continues to offer its help, support, and services to the
Congress, to the Executive, and to the Judiciary branch, as
well as to all others interested in the subject who are
interested and continue to be interested in this important
issue and requests that any congressional action include
emergency amendment authority with regard to guideline
amendments so that they would go into effect as soon as
Congress acts.
Again, on behalf of the United States Sentencing
Commission, we thank you very much for holding this hearing,
and we appreciate the continued interest in this very important
subject.
[The prepared statement of Judge Hinojosa appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Judge. And before we
ask questions of the panel, I would like to invite my Ranking
Member, Senator Graham, to make an opening statement.
STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. I will be very
brief. I think this is a topic long overdue for discussion.
When you look at your panel, you have got a very unusual group
of people, political divergent who have the same message. I am
looking forward to listening.
Chairman Durbin. Thank you very much.
I would like to ask the first question of Mr. Breuer so
that there is clarity on the record. I listened carefully to
your testimony. You testified the administration believes
Congress should completely eliminate the sentencing disparity
between crack cocaine and powder cocaine. To be perfectly
clear, does the administration believe that Congress should set
the sentencing ratio for crack and powder at 1:1 ?
Mr. Breuer. Mr. Chairman, the administration does believe
that. We believe that should be part of a comprehensive
approach, but that is the position of the administration.
Chairman Durbin. There may be some disagreement among those
who are on the panel here, but I would like to go to the next
question that crosses my mind. What are we to do with all the
people who were sentenced over the last 23 years with this
disparity of 100:1 ? What is the appropriate thing, the just
and fair thing to do, for those who are currently in prison?
Mr. Breuer. Mr. Chairman, that is, of course, a very
difficult question, and, of course, within the Department of
Justice at the Attorney General's request, we are having right
now a Sentencing Working Group that is going to go and reach
out to members of the Commission, the judiciary, and all the
stakeholders. Whether at the end of the day the issue of
retroactivity is one that should be adopted, I am sure that
will be a topic that will be discussed.
Senator, it is a very hard issue. I do not think there is
an easy fix to it. I think the process is just going to have to
take forth so we can figure out the best resolution there.
Chairman Durbin. If I could ask the two other witnesses
that question, and add a little context to it. In December
2007, the Sentencing Commission unanimously decided to apply
its reduction in crack sentences retroactively. The Commission
estimated that it would affect the sentences of approximately
19,500 inmates over the course of several years. At the time,
opponents of retroactivity argued that the courts would be
flooded; the judiciary would be hard pressed to handle all
these cases.
So what is the verdict? I ask of the two other witnesses.
Have the courts been flooded, or has the process gone smoothly?
Has ever defendant seeking a sentence reduction received one?
And if not, why not? And are judges still able to consider the
individualized factors such as the use of a weapon or crimes of
violence and an offender's criminal history while incarcerated
and similar aspects? I would like to ask Judge Walton and Judge
Hinojosa to respond.
Judge Walton. As you know, there was tremendous concern
when the Commission was considering the issue of retroactivity
as to whether it would overload the court process. And I had
some of those concerns, but the Criminal Law Committee did
recommend to the Judicial Conference that we support
retroactivity, and we did so.
My feeling is that the process, as far as the District of
Columbia is concerned, has gone smoothly, and based upon what I
know from my colleagues throughout the country, it has gone
smoothly also. Has it placed a burden on the courts? Yes, it
has. But I do not think we can let that burden impair us from
doing what fundamentally has to be done to make our process
fair.
So if it means my probation department and as individual
judges we have to work a little harder in order to address the
problem, we are prepared to roll up our sleeves and do it.
Chairman Durbin. Judge Hinojosa.
Judge Hinojosa. Chairman Durbin, with regards to that
issue, the Commission, when it acted in 2007 amending the
guidelines, seriously looked at the issue of retroactivity. As
you know, the statute gives the Commission the opportunity when
it changes guidelines to decrease sentences, to apply them
retroactively and allow the courts to apply them retroactively
if they so desire.
We held hearings. We heard from individuals from the
judiciary as well as other interested groups, as well as the
executive branch of the Government, and then decided
unanimously to apply it retroactively. We did put it off for a
period of about 3 months. This was going to be the largest
number of defendants that had ever been eligible for a sentence
reduction. This gave the courts, as well as the executive and
defenders' organizations, an opportunity to be prepared with
regards to the motions that would be filed.
We also amended Section 1B1.10 of the guidelines with
regards to the matters that could be considered by a court in
determining whether to reduce the sentence.
I will indicate that it appears to have run smoothly across
the country so far. We have received information as of March of
2009 of approximately 19,239 motions, as I indicated. About 70
percent of those have been granted; 30 percent have been
denied, as I stated a little while ago. About 11 percent of
them have been denied because defendants filed them who did not
have crack cocaine convictions. The others have been denied
either because the mandatory minimums apply and/or career
offender status or armed career offender status applies as well
as for other reasons on the merits.
It is totally discretionary with regards to a sentencing
judge as to whether to grant the motion to reduce the sentence,
and the Commission provided some guidance with regards to that.
I will indicate that any action on the part of the
Commission with regards to retroactivity would be guided, as it
always has, by deliberative effort, certainly consultation with
the other branches of Government, as well as individuals who
are interested on this issue; and we would certainly proceed to
act in that way to make a decision with regards to any
guideline amendment that would come as a result of any
reduction that might apply.
Chairman Durbin. Thank you.
In addition to considering the impact or burden of
retroactivity, I want to share with the panel some statistics
from our Nation's capital. In Washington, DC, 52 percent of
Federal cases involve crack cocaine--52 percent. That is 2\1/2\
times the national average. Then 92.8 percent of the city's
incarcerated population is African-American and over 50 percent
of young black men in the city are either incarcerated or under
court supervision. Over 50 percent.
Judge Walton, you sat on the Federal bench here for 8 years
and presided over hundreds of cases involving crack cocaine. In
your experience, what effect does this sentencing disparity
between crack and powder have on the criminal justice system? I
gave as an illustration earlier that this much crack would be
viewed the same as this much in powder cocaine. To put that in
dollar terms, 5 grams of crack now selling at $69 would market
for $342, would merit the same criminal penalty at 500 grams of
powder cocaine now selling at $73 on the street, $37,000--$342,
$37,000, same sentencing aspect.
So can you tell me, have you--you have seen this up close,
and we are going to hear some further testimony on this. Can
you tell me the burden on the current system and the impact
this has on the sentencing aspects?
Judge Walton. Yes, Senator. As I indicated in my opening
remarks, I know from personal experience jurors during the voir
dire process who would come up and say that they were not
willing to serve as a juror because they know about the
disparity, and I think that is unfortunate when our citizenry
is not prepared to participate in our judicial process because
they believe it is fundamental unfair.
As I also indicated, we have had jurors who have said after
the fact, who would not convict and there was a hung jury, that
the reason they would not convict is because they know of the
disparity and they were not prepared to contribute another
young black male--who it usually is--to the system knowing the
unfairness of the process.
I know, because I spend a lot of time talking to people in
the community, that there are people who are unwilling to come
forward and cooperate with law enforcement because, again, they
believe the system is unfair.
So I think it does have a perverted impact on the attitude
that many people in our country have about the fairness of the
process. And whenever that happens, I think it builds
disrespect for our judicial process, which obviously has an
overall impact. And as I said, it is just not within the
Federal system, because when I served on the superior court,
even though the Federal sentencing laws did not impact what was
taking place in that court, we had the same attitude being
expressed by jurors and other citizens about the fairness of
the process. So it had an impact on the process in that system
also.
Chairman Durbin. Thank you very much.
Senator Graham.
Senator Graham. Thank you. A very good discussion.
Generally speaking, do you believe that crack cocaine has
been a detriment to minority communities in terms of their
health and their future, Judge?
Judge Walton. Absolutely. There is no question that crack
cocaine has had a devastating impact on African-American
communities. I know that there are people who are afraid to
even come outside of their homes because of the violence that
exists. But I have seen violence in reference to other drugs in
addition to crack. And as I indicated earlier, I cannot say,
based upon the cases I see coming before me, that at this time
the level of violence is any greater as it relates to crack and
other drugs.
We know a lot of our children who are having difficulty
educationally, academically, are children who were born to
women who used during their pregnancy. So, yes, it has had a
tremendous impact. But it also has had a tremendous impact
because the breakdown of the African-American family has had a
devastating impact on the African-American community, and to a
large degree, when you go into many of these communities, there
are no men because so many of our young black men are locked
up. And I think that is a major problem that this country has
to confront.
Senator Graham. The only reason I mention that, you know,
when you go back and look at a law, there is a reason that laws
exist, and history sometimes will say that was a dumb reason.
We have had laws to do some things that, in hindsight, were
just really racially motivated or just, you know, Neanderthal.
But when it comes to this drug, I think I understand why
people back in the 1980s and the early 1990s really wanted to
declare war on crack cocaine and making it very difficult to be
involved with its use or sale. So I think Senator Durbin
probably during that period of time had that motivation,
anybody that supported this original statute.
The one thing we can say for us is that all this
enforcement and punishment you said--has it gone up or down
throughout the communities? Has it had any impact in terms of
deterrence?
Judge Walton. I do not have any statistics or empirical
data I can provide to you to support the position I am going to
take. But I have come to believe, in the context of this type
of crime, that certainty of punishment is more important than
severity of punishment. Obviously, for repeat offenders and for
offenders involved in large trafficking organizations or those
involved----
Senator Graham. With that in mind, Judge, a mandatory
minimum, does it have a place here for simple possession, do
you think?
Judge Walton. Not for simple possession. The Judicial
Conference has opposed mandatory minimums.
Senator Graham. OK. From the administration's point of
view, do you have any--could you give me an answer to that
question; has the use of crack cocaine gone up or down after we
passed these very tough statutes?
Mr. Breuer. Senator, it is my understanding that use of
drugs throughout has somewhat gone down, so not just for crack
cocaine. Whether that is the result of this sentencing regime,
I think one would be hard pressed to say it is the result. But
I think overall what we say about crack cocaine would be true
for other drugs and powder cocaine as well.
Senator Graham. I think the most revealing testimony is the
fact you talk about jurors who openly understand that--you
know, they understand the consequences of one type drug versus
the other and are very reluctant to find people guilty. So I
think the Committee is doing a good job here to try to figure
out how to create justice. But the goal is to protect people
from the scourge of this drugs. Let us do not lose sight of
that. And from the Sentencing Commission point of view, if you
have applied--if you did away with the simple possession
standard and you went back in case files and you reviewed cases
of people who are in jail based on simple possession of crack
cocaine with a mandatory sentence, how many people are we
talking about letting out of jail?
Judge Hinojosa. Last fiscal year of 2008, I believe it was
about 105 cases of simple possession, and about half of those
cases were subject to mandatory minimums.
Senator Graham. So not that many people.
Judge Hinojosa. It was a small number, but, nevertheless,
it is the only drug that carries a mandatory minimum for simple
possession.
Senator Graham. So if you did away with the mandatory
minimum, you are not--it is only 105 cases that it was used in,
right?
Judge Hinojosa. It was 105 cases, and about half of those,
I believe, actually were subject to the mandatory minimum.
Nevertheless, it is about 50-some defendants who were affected
by mandatory minimum with regards to that particular drug who
were not affected with regards to any other--possession of any
other drug.
Senator Graham. Well, here is my statement to you and the
Committee as a whole, and really to the country, I guess. If we
change the law to do away with what appears to be an injustice,
that you get so much more punishment for one type of cocaine
versus the other, and it has such a disparate effect in terms
of our demographics, what do we do if we change the law to do
away with that harshness and make the law still punishment,
what do we do to prevent the problem? I mean, isn't that the
goal? The goal is to prevent the problem. And if I thought
passing a 1,000:1 ratio would do it, I would vote for the law.
Obviously, it is not and it is creating a counter-effect, and
it is creating a backlash that is not what we want. We do not
want the community to stop convicting people because they think
it is unfair. We want people convicted that deal in this stuff
and abuse it. But we also want to help them get off of it. So
if you could just in a minute or so, tell me what do we do if
we change the law to make it less punitive. How do we fix the
problem?
Mr. Breuer. Well, Senator, from the administration's point
of view, what we would do is we would have a regime that would
be more case specific. So we would have very severe punishments
for those who are deserving of severe punishments. If you are a
serious or major trafficker, you are someone involved in
violence, you use children, you sell to children, you sell near
schools or whatever, in that case you should get--and there
should be certainty to it. And with that, in the comprehensive
approach we would want rehabilitation so that if you are
someone who has simple possession or you are someone who has
had just a small amount of cocaine or such a substance, but you
do not have violence, that once you are out of jail, if you go
to jail, that we have some way of dealing with you so that we
do not have you re-entering the Bureau of Prisons system.
Senator Graham. One last question. If we change the law or
we change the sentencing to be more balanced and, quite
frankly, fair given powder cocaine, do you worry that we send
the wrong message?
Mr. Breuer. Senator, from the administration's point of
view, we think today we are sending the right message. We are
sending------
Senator Graham. Do you agree with that, Judge?
Judge Walton. I do. I agree with everything that Mr. Breuer
has indicated about how we should address this problem. And I
do not think we send the wrong message. I believe that
enforcement is very important to addressing this problem. But I
also believe that prevention works, and I also believe that
treatment works. But we have not made the investments in those
arenas that I believe are necessary.
Senator Graham. Thank you.
Chairman Durbin. Without objection, a statement by Senator
Leahy will be entered into the record.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Breuer, obviously this is a very major recommendation,
and it carries with it a lot of concomitant issues, and not the
least of which is retroactivity. And it seems to me you cannot
eliminate the disparity without having a program to release
people from prison who are under these laws, thereby unfairly
sentenced. And I think we need to know exactly what we are
talking about.
Mr. Hinojosa, I was reading your written statement, and the
question you just answered, and I read something different from
what you have just responded to. On page 3, powder cocaine and
crack cocaine offenses together historically have accounted for
nearly half of the federally sentenced drug-trafficking
offenders; 24,600 total drug-trafficking cases in 2008; there
were 5,900 crack cases. That is 24 percent of all drug-
trafficking cases, and 5,760 powder cocaine cases. That is 23
percent of all drug-trafficking cases. So there are a lot of
people in prison with this disparity.
Do you want to say something on that?
Judge Hinojosa. The number I gave was those that were
eligible with regards to the 2007 guideline amendment. Some of
them had already served their sentences, some of them had been
obviously released, and some were not eligible for other
reasons. And so the number that I gave is not everyone who had
been sentenced under the crack-powder ratio, but those who
might be eligible with regards to the 2007 guideline amendment.
We have done no study with regards to eligibility with regards
to any others, nor have we looked into that.
Senator Feinstein. Well, what would be the eligibility of
people in prison for immediate parole, assuming there was
retroactivity and the 1:1 standard was in place?
Judge Hinojosa. That would depend on what the ratio was and
what Congress actually decided the ratio should be.
Senator Feinstein. Well, I am just saying the
administration has suggested a ratio. Supposing that were, in
effect, the law. How many Federal offenders would then be
subject to release? Because you would have a clamor if we
changed the disparity and kept people in prison.
Judge Hinojosa. If that were the case and that was the
legislation, of course, we would do all the numbers with
regards to whatever that might be.
Senator Feinstein. But right now we do not know how many
people would be------
Judge Hinojosa. No, but we would be glad to get that for
you, and we have prepared some information with regards to the
reduction possibilities, but not with regards to the numbers
presently in custody that might be eligible for retroactivity,
if that was the way it was proceeded with.
I will say that one of the things the Commission is also
attempting to do and has started doing--and this does take some
time--is to look at the recidivism rates with regards to those
who have had retroactivity applied with regards to the 2007
guideline amendments.
Senator Feinstein. Well, let me ask you, I would appreciate
getting those numbers, because I think we have to look at this.
Philosophically, I agree with what the administration has said.
Practically, before we proceed, I sure want to know the impact.
And so I think we need that. Now------
Judge Hinojosa. And I hope I did not leave you with the
impression, Senator, that the number I had used involved if
there was a change to 1:1. It was simply the number with
regards to the 2007 guideline.
Senator Feinstein. I understand. Thank you. That is
helpful.
Now, there are 14 States that do have crack cocaine
disparities, mine being one of them. Our disparity in
California is based on the actual minimum sentence, with crack
defendants sentenced to a
3-, 4-, 5-year term, and powder cocaine to 2-, 3-, 4-year
terms. So that is not, I think, as difficult to change. But,
again, I would want to know what is the practical impact of
this.
Let me ask you, Mr. Breuer, I am sure that when you make
this suggestion, you have analyzed the practical impact of this
both on the Federal system and the fact that States are apt to
follow and what the impact would be with those States that do
have disparities.
Mr. Breuer. Well, Senator, what I would say with respect to
that is that, of course, this is the very beginning of the
process, and we have a working group where we want all the
stakeholders to get involved. The issue of retroactivity I
think will be an issue------
Senator Feinstein. Is the answer that you have not looked
at that?
Mr. Breuer. Well, the answer is not that we have not looked
at it, but the answer is that in speaking--for instance, I
personally in the first week on the job, when I have spoken to
those like Judge Walton and Judge Hinojosa and other judges,
they have said in the past when, for instance, the Sentencing
Commission decided to have a two-level reduction, that those
people thought in the beginning that it would be overwhelming,
that, in fact, judges, as Judge Walton said, were able to do it
and roll up their sleeves.
Whether or not if we were to do this now it would create an
overwhelming burden I do not think has yet been quantified. But
I think it is an issue and, on the one hand, will be the
practicality of doing it and, as the Senators have indicated,
is the fundamental justice in doing that. Somewhere in that
will be where that discussion comes out.
Senator Feinstein. I am sure you have talked with law
enforcement.
Mr. Breuer. Yes.
Senator Feinstein. What is the law enforcement view of
this?
Mr. Breuer. Well, Senator, I think like everything, there
is not unanimity. I have had the privilege--yesterday, I spoke,
for instance, with Chief Bratton, the police chief in Los
Angeles, who said to me, ``Lanny, you should quote me as saying
I fully support 1:1, and I fully support the administration's
position.''
I see Chief Timoney there, and I had the pleasure of having
breakfast with him about a week ago, and I think there is a lot
of support for it.
I do not want to suggest there is unanimity, but I think a
lot of law enforcement believes that the current status is
unsatisfactory. There is probably going to be some debate
whether it should be 1:1 or something else, but I think there
are a lot of informed sources who are now very much in
agreement with this position.
Senator Feinstein. What would be the administration
recommendation on retroactivity?
Mr. Breuer. I do not think yet, Senator, we have one, and
the reason we do not have one is that in beginning this
process, I think the administration believes it is essential
that in a more comprehensive way, we are able to reach out to
law enforcement, to the Congress, and to other stakeholders.
Intuitively, there is a lot about retroactivity that seems
right. But I think if we were to take a firm position now, we,
in fact, would disenfranchise those who we very much want to
bring into the process as we all discuss in an informed way
this issue.
Senator Feinstein. For whatever it is worth, it is my
position that any change has to have retroactive consideration,
because we have to know what we are doing when we do it and
what the practical application of what we are doing is, not
just the theoretical application, because you are going to have
14 States very concerned as well.
So I would very much appreciate it, Mr. Chairman, if it is
agreeable with you, that the Attorney General's Office really
look into this and give us some recommendations of what they
think this should be as part of any bill.
Mr. Breuer. Senator, just to reassure you, our goal, in
fact, for the working group is that the working group within a
period of a few months, not very long, will, in fact, have
coalesced all of these issues, and we would be delighted to do
exactly that.
Senator Feinstein. That would be very helpful.
Thanks very much, Mr. Chairman.
Chairman Durbin. Thank you, Senator Feinstein. I agree with
you on that point. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to all of you.
As you know, I am a former prosecutor, and when I was
listening to Senator Graham talk about going back to how this
happened, these disparities in the first place, I think part of
this was--which I still see today--the scourge of crack cocaine
and what it does and the very violent offenses that get
committed with it. So I think it is very clear to say that we
are not talking about decriminalizing this--right, Mr. Breuer?
Mr. Breuer. That is exactly right.
Senator Klobuchar. All right. Very good. And that we
understand it is a very serious problem.
On the other side, I think of a judge in Minnesota named
Pam Alexander, who was a district court judge, who was one of
the first to strike down the crack cocaine disparity in
Minnesota. It went up to the Supreme Court, and in 1991, in the
case of State v. Russell, the Minnesota Supreme Court struck
down our disparity in our State.
Pam Alexander was nominated or her name was seriously
considered for Federal district court judge, and I hope she is
watching this hearing today, because she was not able to
advance because of this decision that she had made.
So I am well aware of this issue, and I think the first
thing I wanted to say and ask you about was that there were
reasons given back then for this disparity--and I am sure some
of them were real, but some of them were--that crack could be
worse, the effect it had on babies and things like that. And is
that still true, the crack cocaine? Any comments on that?
Mr. Breuer. Senator, based on my understanding of the
Commission's excellent work and its work with respect to
science, there is no basis for that conclusion.
Senator Klobuchar. All right. And then, second, the fact
that sometimes crack, for maybe reasons outside of the drug
itself, it is involving more gun offenses, more violence; it
may be those that are using this illegal drug compared to those
that are using cocaine; it may have nothing to do with the
drug, but there was some more propensity of cases involving gun
and violence with crack.
Mr. Breuer. I think though the numbers have gone down,
there is still some more prevalence of those who are on the
streets trading in crack possessing guns or using guns. It is
why the administration feels we should have a much more
targeted approach.
Senator Klobuchar. So your answer to that, for my law
enforcement people out there who are listening to this very
carefully, would be that it is not like we are going to
disregard the fact that guns are used with these crack crimes,
that you are going to use enhanced sentences. Or how are you
going to get at that fact? Because, clearly, when you have guns
with drug cases, it means something more.
Mr. Breuer. That is exactly right, Senator. What we would
propose is through the working group and making recommendations
ultimately is either through enhancements or through further
legislation that we ensure that those who are trafficking in
crack cocaine, for instance, who are using guns, that they get
extremely severe sentences. And so we are not in any way
proposing that we are going to ignore it. Through a
comprehensive regime of legislation and enhancements, we very
much want to address that issue.
Senator Klobuchar. OK. I think that is very important for
people to know, and I do think it gets at Senator Feinstein's
retroactivity question to some degree, which I think is going
to be very difficult, and that is that perhaps--I am just
guessing this, judges, but because of the sentences for crack,
that sometimes those sentences were used, weapons charges may
have been dropped even though a weapon was present. And so the
retroactivity argument becomes more difficult in those cases.
You may have a severely violent case or a gun case, but because
the crack sentence was so long, perhaps those charges were
dropped. Do you want to address that at all? It just
complicates saying, well, because someone was put in for a
crack charge for this long, they should be let out, when, in
fact, maybe there were other factors there.
Mr. Breuer. Senator, I think that is exactly right. I defer
to the judges on the implementation, but, of course, any issue
of retroactivity will have to be case by case for the very
reasons you have identified.
Senator Klobuchar. Judge.
Judge Hinojosa. Senator, I do want to make it clear that
the guidelines themselves do provide some enhancements already
with regards to a weapon involvement if you are not convicted
under the statute. They also provide enhancements for use of
minors, enhancements for roles in the offense, as well as some
of the other matters that would be of concern to individuals.
They are provided within the Sentencing Guideline system with
regard to some of these enhancements that have been talked
about with regards to certain specific characteristics of the
way a defendant may be involved in a particular case.
And so some of these individuals may have already gotten
the weapon enhancement under the Sentencing Guidelines even
though they were not convicted under the statute itself.
Senator Klobuchar. I understand. My focus here is that you
may have some violent offenders that were simply convicted
under this crack law, and so it just makes it much more
complicated to look at the retroactivity issue.
The other thing that was raised and Senator Graham
addressed was just other reasons to look at changing this
disparity, and one of them is that the judges have been
downgrading the sentences out of a realization of what they
perceive is this unfairness, as well as the fact, which he
referred to, that juries are aware of this in many parts of the
country and have reactions to this, or people. And I am very
interested in mostly effectively using our laws and making sure
they are targeted, as Mr. Breuer pointed out, at where we need
them. But could you comment a little bit about that? I think it
was you, Judge Hinojosa, that brought up the issue of the
judges' departing downward.
Judge Hinojosa. There has been some since Kimbrough and
Spears. Post Spears, the departure or variance rate that is not
Government sponsored is about 18 percent in crack cocaine
cases, which is higher than it had been. It was probably 3
percent lower than that prior to that, and so there has been an
increase. That is only with 900-some cases that have come in
since Spears that we have been able to code. We will continue
to put out that information. It is different than it has been.
We have seen about five cases where judges actually decided
to use their own ratio. Some have used 20:1. Some have used
1:1. And so this may lead to disparity with regards to how
individual judges look at what they feel might be the ratio.
And so we are coding that information and would certainly make
it available.
Senator Klobuchar. Thank you.
Judge Walton, do you want to comment at all on this?
Judge Walton. Which particular----
Senator Klobuchar. Well, just on the judges' departing
downward, maybe your own feelings or changes in your feelings
about this disparity in these laws over time.
Judge Walton. Under our current system, I do have concerns,
because I know within my own courthouse there is a difference
of view of what that disparity should be. So you do have some
judges going 1:1, 10:1, 20:1, and I think that is problematic
because I think disparity is a problem within our system. So,
to the extent that there can be greater uniformity, I think
that is important.
On the issue of retroactivity, I agree, that is a
significant issue. There are a lot of factors that have to be
weighed in assessing whether it would be appropriate to do
that, and one of the things I do not think I would be saying
off the reservation on behalf of the court system to say this
is that if retroactivity is a reality, then I would hope that
the needs of the court financially would be considered, because
if we need additional resources in order to carry it out, I
would hope that they would be made available to us.
Senator Klobuchar. OK. I could tell you that I totally
understand that from seeing court cases, but, again, the public
safety issues with making sure that any retroactive changes
that are made are going to also be, I think, foremost in
people's minds. But thank you.
Judge Walton. But I think one thing that is important, if
you look at the statistics that Judge Hinojosa indicated with
the experience of what has happened now in reference to what
the Commission did, there has not been a significant number of
people who have been released who have come back into the
system. According to the statistics, it is only about 0.6
percent of the individuals released pursuant to the action of
the Commission who have committed new offenses and come back
into the process because of that.
Senator Klobuchar. Right, and I am a big supporter of
treatment. I come from the land of, well, 10,000 treatment
centers--that is what we say--in Minnesota, and we believe in
it. My own father is a recovered alcoholic, so I completely
believe we need to look at that and drug courts as part of our
laws, and that there are much better ways we can handle this.
But at the same time, I want to make very clear to the public--
and Mr. Breuer did that--that we are not talking about
decriminalizing that, that we are going to move very carefully
as we look at any talk of retroactivity, and that we do
understand that crack cocaine is, as Senator Graham said, a
scourge on our community and that we want to do everything to
get people off of it and to make sure the laws are enforced and
to focus very much on these violent offenses and gun offenses,
while understanding that this disparity has not been fair and
it has not seemed to have been effective in how we enforce our
drug laws.
So thank you very much, all of you.
Chairman Durbin. Senator Kaufman.
Senator Kaufman. Mr. Chairman, I want to thank you for
holding this hearing. I think this will go a long way to deal
with popular misperceptions about the disparity between the
crack cocaine and powder cocaine differences, and I think it is
a real service.
Mr. Breuer, I want to follow up on Senator Klobuchar's
question. I know about the children, but what are the things
that we have learned since 1986 that make us now, the
Department, to feel that it is important to remove this
disparity?
Mr. Breuer. Well, Senator, where we were right, of course,
and what we have known throughout is that crack cocaine, drugs
in general, such as crack cocaine and powder cocaine, are, in
fact, a scourge and they are very bad for the community and
they can be associated with violence. What we have learned is
that if we punish based on a class as opposed to case specific
or one form versus another, then, in fact, what we begin to do
is deteriorate the public's confidence in our justice system,
as Judge Walton so eloquently described, and that cannot be the
case.
We need to protect our citizens. They need to know there is
certainty of punishment. And they need to know that we are
putting in jail those who should be in jail as opposed to, as
Judge Walton said, young African-American men who have no
business being in jail perhaps for as long as they are based on
the crime. That is a terrible injustice. I think that is the
lesson we have learned.
Senator Kaufman. To follow up on that, one of the findings
in the Sentencing Commission's most recent report to the
Congress said that more than one-third of all crack cocaine
cases in 2006 involved fewer than 25 grams while powder cocaine
cases typically involved far larger quantities.
Can you kind of talk about how that happens?
Mr. Breuer. Well, Senator, I think what has happened under
the current regime is that, in essence, there is sort of a de
facto process, and because the quantities are lower in some
cases, people are targeted because there is a sense that
perhaps they are more involved in other kinds of criminal
activity.
The result, however, is somewhat artificial. If we had a
1:1 level, then, in fact, I think what we would find is
sentences throughout would be proportional based on what they
should be. Now I think what is happening is people are using
their own independent judgments to try to take the system that
most people think is not working and try to make it work a
little better. But that is a very imperfect system.
Senator Kaufman. Thank you. Now, we know, talking about
doing away with the disparity--and I think there seems to be
good agreement on that. I mean, do you have any thoughts about
whether we are going to raise the current powder levels or
lower certain crack levels in order to get to what we should be
doing? Just your thoughts on that.
Mr. Breuer. Well, Senator, based on the Commission's work
and the work that we have heard about, I am not aware of any
compelling arguments--at this point, none--to say that we
should raise the powder cocaine penalties or raise the powder
cocaine. But I must say that the working group will do what we
have said it will do. It will remain open to all issues, and so
if there are those arguments, we want to hear them, and we want
to assess them. But at this point, I have not heard any
compelling arguments there, and I do not think the Commission
in its work has found any.
Senator Kaufman. Thank you for that.
Judge Hinojosa, on the subject of violence, does your data
suggest that the violence associated with crack distribution
has changed at all over the years?
Judge Hinojosa. The last coding project that we did with
regards to violence was that there was a slight difference
between crack and powder cases. It was not present in about 89-
point-some percent of the crack cases and not present in about
93 percent of the powder cases. And so that was a coding
project with regards to 2005 cases.
The other thing that we judge it by is the weapon
enhancement, which is applied in about 28.1 percent of the
crack cases and 16.9 percent of the powder cases. And so,
therefore, that is the information that we do have.
Senator Kaufman. All right. Thank you.
Judge Walton, obviously, in addition to your long service
as a trial judge, you served with the Office of National Drug
Control Policy. How has that experience affected your positions
and your views on this issue?
Judge Walton. Well, as I indicated earlier, I did advocate
a disparity when I worked in the Drug Office because of the
information we had available to us at that time. As has been
indicated, a lot of that information we know was incorrect, and
so it has altered my view about the disparity, coupled with the
fact of my experience that I have had with people who would
come into the process, like jurors, who did not want to be a
part of the process because of the disparity.
So I think, as I have indicated before, that public
confidence is critical if our laws are going to be respected
and followed, and I think this adversely impacts the ability to
have that occur.
Senator Kaufman. Great. Thank you all for your comments.
Again, Mr. Chairman, thank you for holding this hearing.
Chairman Durbin. Thank you, Senator Kaufman, and I would
like to thank this panel for their testimony. I believe this
has been long overdue, and your statements are going to help us
understand this issue and I hope motivate us to move forward.
Some of the little huddles that you have seen taking place here
are among Senators who are thinking about what is the next
step, so we are consciously thinking of an active response to
your suggestions today, and I thank you for motivating and for
joining us.
Judge Walton. There is one statement I would correct. I
said that it was 0.6 percent who have been rearrested who had
been released. It actually is 0.6 who were revoked based upon a
rearrest.
Chairman Durbin. I see. Thank you very much, Judge Walton.
Thank you all.
Chairman Durbin. We now invite the next panel of three
distinguished witnesses to join us, and before swearing them
in, while they are taking their seats, I will give you a little
background on each one of them.
John Timoney is going to testify first. He is the Chief of
Police of the Miami Police Department. He has been in that
position since January of 2003. His law enforcement career
began in 1967 when he joined the New York City Police
Department. After serving in a variety of leadership positions
during three decades with NYPD, Chief Timoney was for 4 years
the police commissioner of Philadelphia, where he commanded a
force of approximately 7,000 officers. He is President of the
Police Executive Research Forum, serves on the Board of Penn
Institute for Urban Research in Philadelphia University, Co-
Chairman of the FBI's South Florida Joint Terrorism Task Force.
His 40 years of local law enforcement experience give him a
unique perspective on these issues. I thank him for being here.
Asa Hutchinson is a familiar face here on Capitol Hill,
currently practicing law at the Hutchinson Law Group which he
and his son founded. He began his legal career as a city
attorney in the famed Bentonville, Arkansas, before he was
appointed by President Reagan as U.S. Attorney for the Western
District of Arkansas. He served in the U.S. House of
Representatives from 1997 to 2001, appointed by President Bush
as Administrator of the Drug Enforcement Administration in
2001; 2 years later, he became the first Under Secretary for
Border and Transportation Security at the newly created
Department of Homeland Security. He has an undergraduate degree
from Bob Jones University and a law degree from the University
of Arkansas. Mr. Hutchinson, welcome.
Cedric Parker, one of seven children, born in Tampa,
Florida, grew up in Alton, Illinois, home of the Red Wings.
Upon graduating from Southern Illinois University, he joined
the U.S. Army and served his country for over 7 years. Mr.
Parker, after leaving the military, returned to Alton,
Illinois, where he managed a residential diagnostic and
treatment facility for troubled and abused adolescents. He met
his wife, Christie, there, who is a psychotherapist in private
practice. Their four children--one son and three daughters--
range in age from 24 years to 11 months.
That is a wide spread there, sir. Mr. Parker, thank you for
the sacrifices you made to be with us today.
He is here to testify about his sister, Eugenia Jennings,
and before I--I will wait and show that a little later. We have
a picture here of the family which we would like to show when
the time comes for your testimony.
If I could ask the three witnesses to stand to be sworn in,
I would appreciate it. Do you solemnly swear that the testimony
you are about to give is the truth, the whole truth, and
nothing but the truth, so help you God?
Chief Timoney. I do.
Mr. Hutchinson. I do.
Mr. Parker. I do.
Chairman Durbin. Thank you. Let the record indicate that
all the witnesses responded in the affirmative.
Chief, I am going to let you open up. The floor is yours.
STATEMENT OF JOHN F. TIMONEY, CHIEF OF POLICE, MIAMI POLICE
DEPARTMENT, MIAMI, FLORIDA
Chief Timoney. Thank you very much, Mr. Chairman, and good
morning to the distinguished members of the Committee. I want
to thank you for affording me the opportunity to testify
regarding reforming the Federal cocaine sentencing laws,
commonly referred to as the ``crack-versus-powder cocaine
controversy.'' As you mentioned in your introduction, I have
spent the last 40 years in local law enforcement--the last 6\1/
2\ years as the Chief of Miami, 4 years before that as the
police commissioner of Philadelphia, and then 29\1/2\ years in
the NYPD, beginning as a young cop in the South Bronx and
working my way up through the ranks to become the youngest
four-star chief in that department's history. So I come at this
as a police professional.
Others this morning have testified regarding the 100:1
disparity, and you had very good graphics there, Senator. They
testified to the efforts of many, including the United States
Sentencing Commission, to try to rectify or mitigate the
disparity. To date, none of these efforts have been effective,
having, for whatever reason, fallen on deaf ears. I am here
today to lend my voice to the chorus pleading with Congress to
right a wrong.
I have no idea if the original reasons for establishing
this dichotomy that somehow crack cocaine was more powerful
and, therefore, deserved a stiffer sentence--I did not know if
they were right or wrong. I have heard the arguments on both
sides. But what I can tell you from a practitioner's
perspective is that the results or the unintended
consequences--and I do not think the consequences were ever
intended in this situation. But the results have been one
unmitigated disaster.
Making an artificial distinction about a particular form of
the same drug is a distinction without a difference, and that
is bad enough. But when the distinction results in a dramatic
disparity in sentencing along racial lines, then that
distinction is simply un-American and intolerable. Furthermore,
it defies logic from a law enforcement perspective, and here is
what I mean.
If I arrest a guy carrying 5 grams of crack cocaine--that
is less than a fifth of an ounce--I figure this guy is a low-
level street corner dealer, or maybe he just has a good amount
of crack for personal consumption. But if I arrest a guy with
500 grams of powder cocaine--and that is about half a kilo--I
assume that this individual is a serious trafficker in
narcotics. The notion that both of these guys are equal and
deserve the same sentence is just ludicrous on its face.
Now let me take my two guys and show you how the monetary
value of their illegal contraband plays out in the street. In
Miami today, you can purchase 5 grams of crack for around $150.
In New York and in Philadelphia, my prior two cities, it will
cost you around $200--a little more expensive. In Miami today,
my undercover officers for powder cocaine spend between $700
and $1,000 per ounce, or around $14,000 for half a kilo, which
is 500 grams. In New York and in Philadelphia, probably $2,000
more. The bottom line is the difference--it is a hell of a
difference. It is $150 versus $14,000.
Now, if you were to present those numbers to the average
eighth grader, they could figure out who is the narcotics
trafficker and who is not. It is quite simple. And the answer
is quite simple.
Finally, when unfair laws are passed, police officers see
the impact at the local level. Citizens do notice the things
you do up here in Washington, and they do play out in the
street. And in this case, the people become cynical.
I remember back in 1974 when I was a young cop in the South
Bronx, and President Ford issued the pardon to former President
Nixon. I was amazed at how many times that issue was thrown up
in our face as we made arrests on the street. We would get the
accusation: ``Oh, Nixon gets pardoned, but the poor people get
arrested.''
Now, I know a lot of that was just street-level nonsense
and jargon, but the point was well taken. And police
departments across America face a much more difficult challenge
gaining the trust of their communities if there are glaring
inequities in the justice system that are allowed to persist.
These inequities breed cynicism, mistrust, and should be
eliminated.
Thank you, Senator, for your indulgence today.
[The prepared statement of Chief Timoney appears as a
submission for the record.]
Chairman Durbin. Thank you for your testimony.
Mr. Hutchinson, you have an opportunity now, 5 minutes, and
we, of course, will enter into the record any written statement
you would like to submit. Please proceed.
STATEMENT OF ASA HUTCHINSON, ASA HUTCHINSON LAW GROUP, ROGERS,
ARKANSAS, AND FORMER ADMINISTRATOR, UNITED STATES DRUG
ENFORCEMENT AGENCY
Mr. Hutchinson. Thank you, Senator. I am delighted to
appear before your Committee. I am grateful for the invitation.
I am here today, of course, reflecting my background as a
Federal prosecutor in the 1980s, when we really commenced the
strong effort against illegal drugs. I am reflecting my
background as a Member of Congress when I had oversight
responsibilities on the House side for some of our law
enforcement agencies; and then, most significantly, as a former
Administrator of the U.S. Drug Enforcement Administration. In
all of those recent positions, Congress and the DEA, I have
been a long-time advocate for reducing the sentencing disparity
between crack and powder cocaine. I have advocated this
position for a couple of very simple reasons:
One, the justice system should be about fairness, and I do
not believe that this sentencing disparity reflects the
fairness that is required.
Secondly, it obviously has a disparate racial impact on our
communities and undermines what we are trying to accomplish in
the justice system.
Today I express my support for legislation for Congress
addressing this disparity, and I believe that this is the time
that this can be done. The reasons that I am strongly
advocating congressional action in this regard are that I see
the impact of the disparity as undermining the confidence,
credibility, and cooperation that are important in our criminal
justice system; and also--and I think this has not been talked
about enough--the present disparity skews law enforcement
priorities. It encourages law enforcement to pursue lengthy
sentences when the offenders are not high-level dealers. In
Arkansas, where I hail from, I want to cite this particular
statistic: 41 percent of the drug-related Federal offenses in
Arkansas are crack related--41 percent--and that is compared to
a national average of 20 percent. Powder-related Federal
offenses in Arkansas are 12 percent of all Federal offenses, or
drug-related offenses. That compares with 22 percent
nationwide.
In Arkansas the African-American population is
approximately 16 percent, but we have a higher percentage of
crack-related offenses compared to the national average. I
believe that congressional sentencing priorities impact law
enforcement patterns and practice to our detriment in
effectively fighting the war on drugs.
Now, perhaps the easier part of this debate is to convince
policymakers that we have got to do something. The more
difficult aspect is to address how to do it, and what is the
right way to do it. Let me just offer a couple of views in that
regard.
First, the issue of retroactivity has been discussed today,
and I applaud Congress that in implementing the changes of the
Sentencing Commission last fall you did not reverse the
retroactive application. As Judge Reggie Walton, who previously
testified, has said, ``I do not see how it is fair that someone
sentenced on October 30th gets a certain sentence when someone
sentenced on November 1 gets another sentence.'' And so
whatever changes you make, I do believe have to be applied
retroactively.
The most strenuous objection comes from the Department of
Justice, who says it takes extraordinary U.S. Attorney
resources and court resources to process these. The courts do
not object, and since they have gone through the resentencing
on many, you have not seen any mass resignations of U.S.
Attorneys or Assistant U.S. Attorneys saying they are
overworked. So the process has worked, and, most importantly,
when you are dealing with an issue of fundamental fairness,
adjust the resources, apply the resources, make changes where
necessary to make sure that the individualized approach can be
handled and they can be reviewed.
Second, I would suggest that in terms of adjusting the
disparity, mandatory minimum sentences required of cocaine
traffickers should be more clearly directed toward those who
are engaged in the business of trafficking, and it should not
all be quantity based. Right now you have got the sentencing
disparity because it is all based upon quantity. Well, a mule
who is transporting a large load of cocaine across the border
is not the high-level trafficker we actually want to get. We
have got to adjust our sentencing priorities to include
different criteria rather than simply the quantity aspect.
Under the current formula, a dealer charged with
trafficking 400 grams of powder worth approximately $40,000
could receive a shorter sentence than a user he supplied with
crack valued at $500. Obviously, there has to be more than
quantity. We have to adjust that criteria. Quantity should be
one factor, but it has been an unreliable ally in determining
sentencing priorities and in determining law enforcement
priorities.
And, finally, whatever Congress does in terms of changing
the sentencing structure, give it time to work, and then listen
to the Sentencing Commission as they review what has been
accomplished. And, obviously, anything we do has to be subject
to adjustments down the road. Make the change and then let us
evaluate the change after we give it an opportunity to work.
Thank you, Mr. Chairman, Senator Hatch, for the opportunity
to appear before the Committee.
[The prepared statement of Mr. Hutchinson appears as a
submission for the record.]
Chairman Durbin. Thank you, and we will have a few
questions for you.
Mr. Parker, I want to give you a chance to testify. As I
mentioned at the opening, Mr. Parker is here testifying on
behalf of his sister, Eugenia Jennings, and before you begin, I
wanted to show a picture of your sister's children. I would ask
you to tell us their names and ages, if you will, please.
Mr. Parker. OK. To the left is Radley. That is her son, he
is 14. In the center, Radisha Berry. And to the right is
Cardez. He is the one that lives with me. And that is my son,
front and center.
Chairman Durbin. Thank you very much. Please proceed with
your testimony.
STATEMENT OF CEDRIC PARKER, ALTON, ILLINOIS
Mr. Parker. First I want to thank you, Chairman Durbin and
Senator Hatch, for giving me the opportunity to testify before
you today. Of course, you know my name is Cedric Parker. I am
from Alton, Illinois, and I am here to tell you the things my
sister, Eugenia, would say if she was here today. The severity
of the mandatory minimums and especially the sharp disparity
between those for crack and powder cocaine have touched my
family directly. Eugenia cannot be here because she is in
Federal prison for selling crack cocaine.
I spoke with my sister when I learned you wanted to hear
from me, and these are the things she would like you to know. I
want to say first that Eugenia does not excuse her conduct or
hide behind her problems. She took immediate responsibility for
her actions, and I know a day does not go by that she is not
sorry for what she has done.
Eugenia is the youngest of seven and our mother's only
daughter. She was born and growing up as I was leaving Alton
for college and then eventually to the military. As I began to
hear about all the things that were happening to my little
sister, I tried repeatedly to intervene from overseas and find
a safe harbor for her, but I could not.
Our mother was terribly challenged by illness, poverty, and
other problems that made it difficult to provide us a stable
family and a safe environment or to get help. When Eugenia was
very young, our mother would leave her with the Smith's, their
family friends that were in our projects, until she stopped
bringing Eugenia home hardly at all.
Eugenia had an unspeakable childhood. Her surrogate mother,
Annie, beat her and emotionally brutalized her from the time
she arrived. Annie's children all abused drugs and alcohol, and
when Eugenia was only 7 years old, she was left for days with a
prostitute who sexually assaulted her, and also a teenage
neighbor of the Smiths. A year later, one of the her half-
brothers sexually assaulted her, and when she became a
teenager, her stepfather tried to rape her.
Eugenia escaped the Smith, household when she was only 13.
She dropped out of school and went to live with her boyfriend
in a house where drugs and alcohol were the norm. She began
abusing drugs and became addicted to crack by the time she was
15. She stopped using when she learned she was pregnant, but
after giving birth at the age of 16, desperate for money to
support her and her daughter, she began selling and using
drugs. Of course, she was eventually caught.
Eugenia was convicted in Illinois in 1996 for two drug
sales totaling less than 2\1/2\ grams of crack cocaine. While
in prison, she sought treatment for her drug addiction and
resolved to remain drug free. She studied for and completed her
GED. She gave birth to her youngest son Cardez while she was
incarcerated.
Eugenia tried to live up to her commitment. But following
her release from prison in 1999, she relapsed again and began
using drugs and alcohol.
In June of 2000, Eugenia was arrested for trading crack
cocaine on two different occasions for designer clothes. One
sale involved 1.3 grams, and the second, a few days later,
involved 12.6 grams.
Eugenia was charged in Federal court with two counts of
distributing crack cocaine. She accepted responsibility and
pleased guilty. The Federal prosecutor decided to charge her as
a so-called career offender. A career offender is someone who
has two or more prior felony drug offenses. Her two small
Illinois State prior convictions were enough to treat her as a
major drug kingpin, driving her sentence from the mandatory
minimum of 5 years to a sentence of almost 22 years. My sister
was barely 23 years old and the mother of three young children
when she was sentenced in January of 2001 to over two decades
behind bars.
Had Eugenia been sentenced for powder cocaine instead of
crack cocaine, even as a career offender, her sentence would
have been less than half of the one she received for crack
cocaine. Today she would be getting ready to come home,
probably already in a halfway house. She will not be released
from prison until 2019.
Eugenia has worked very hard while in prison to better
herself and maintain ties with her children. They correspond
regularly, and what little money she has managed to earn, she
has sent home to them for birthdays and holidays. My sister has
never been in trouble in prison and is very well regarded by
staff and other prisoners. She is an avid student and a model
employee. She is involved with supporting battered women and is
a member of the Youth Awareness Program, speaking with young
people about the dangers of drugs. After a lifetime of
substance addiction, Eugenia is proudly sober.
It strikes me that whatever the Government had hoped to
achieve by locking Eugenia up has been accomplished, and yet
she still has 10 more years than someone convicted of powder
cocaine. My sister's children, 11, 14, and 15, have only seen
their mother once since she has been in prison.
My sister is a remarkable woman of courage and principles,
and I would give anything not to be here today to tell you this
sad story, but I hope that my words will convince you to change
this terrible law.
I want to leave you not with Eugenia's words or mine, but
with the words of the Honorable G. Patrick Murphy, who
sentenced my sister. Here is what he told her:
``Mrs. Jennings, I'm not mad at you....The fact of the
matter is, nobody has ever been there for you when you needed
it. Never. You never had anyone who stood up for you. All the
Government has ever done is just kick your behind. When you
were a child and you were being abused, the Government wasn't
there. When your stepfather abused you, the Government wasn't
there. When your stepbrother abused you, the Government wasn't
there. But when you had a little bit of crack, the Government's
there.''
``And it is an awful thing, an awful thing, to separate a
mother from her children. And the only person who had the
opportunity to avoid that was you....At every turn in the road
we failed you. And we didn't come to you until it was time to
kick your butt. That's what the Government has done for Eugenia
Jennings.''
I am here to bring you Eugenia's message to end the
sentencing gap between crack and powder cocaine. It causes
racial disparities in sentencings, and Eugenia has witnessed
this every day. It also results in unduly harsh sentences for
people whose only crime is selling the same drug but only in a
different form. The fact that the 13 grams of drugs that my
sister sold were the crack form and not the powder form of
cocaine surely cannot be enough to justify adding a decade to
an already lengthy sentence.
Thank you for hearing me.
[The prepared statement of Mr. Parker appears as a
submission for the record.]
Chairman Durbin. Mr. Parker, thank you, and, Mr. Hutchinson
and Mr. Timoney, thank you as well. That was powerful
testimony. Powerful.
Tell me about her kids. How are they viewing this? And how
are they doing without her for 10 years?
Mr. Parker. It was very difficult for them in the
beginning--actually for several years. They had a lot of
problems in school. The boys, you know, I guess they feel
abandoned, so they started having troubles with pretty much
dealing with women. They felt abandoned by her. And, you know,
I stay in contact with them. I see them every day, help them
with homework.
The youngest, he lives with me, so I have been raising him.
He went from D's and F's to honor roll now, and he is enjoying
life. They all are doing a little better now. But, you know,
they really miss their Mom. I cannot replace their Mom, or
their father. Their father is not around. So it has been very
difficult for them.
Chairman Durbin. Chief Timoney, I am sure you are well
aware of stories just like this.
Chief Timoney. Yes, sir.
Chairman Durbin. In the course of your professional career
as chief in Philadelphia and now in Miami. And I want to thank
you for your testimony because it really means a lot when a law
enforcement professional will step up and use the words you
did, you know, to call this ``one unmitigated disaster,'' which
you said, ``un-American,'' ``intolerable,'' ``defies logic.''
So when you hear from the Justice Department about
eliminating this disparity and bringing it down to a 1:1 ratio,
I would like to know your response or reaction.
Chief Timoney. I actually do not think there is any other
option. Any other option is a false distinction. So if you go
10:1, 20:1, it is the same drug, just manufactured differently.
And I think whether it is 100:1 or 10:1, you are going to have
that cynicism. In fairness, it needs to be 1:1, and as Mr.
Hutchinson pointed out, we want to get the right people, the
people who are profiting, the profiteers, the traffickers, not
some poor person that did not--you know, that bought too much
or had too much on them to meet some really crazy guideline of
5 grams, which really is not a lot.
You know, I was a young cop in the South Bronx. Just to
make you all feel better regarding your votes in 1986, in the
early 1970s in the Rockefeller law, the same thing happened in
New York. And guess what? The same results happened. Mules or
some grandmother or housewife that was asked to hold something,
and if it met the proper weight, there was no judicial
discretion. You had to go away. And, finally, last week,
Governor Paterson has signed a bill revoking the Rockefeller
laws. I think this Congress should do the same.
Chairman Durbin. So you heard Senator Graham earlier, and
he expressed a sentiment we all feel. We want fairness and we
want justice, but we want to do something smart to reduce the
use of narcotics.
Chief Timoney. Right.
Chairman Durbin. You have been on one end of this
conversation, risking your life in New York and Philadelphia
and Miami, and watching your men and women in uniform doing the
same every day because of the scourge of drugs in America.
What is the smart thing to do, assuming we get this one
right and get this disparity fixed? But what is the smart thing
for us to do so we can say to the American people we are not
going soft on drugs here, we are going to go at this a
different way, a smarter way that could be more effective? You
are on the firing line. Your men and woman are. What do you
recommend?
Chief Timoney. Two things. I think, one, those that are
profiting, making money, deserve to go to jail. I think as far
as sentencing, there are lots of aggravating factors you could
put into the law, such as possession of a gun, violence, by a
school, things of that nature.
But when it comes to what my mother would say, the ``poor
unfortunates,'' those that are addicted, that use it, they are
sick, then I think the right option is treatment. But use the
criminal justice system as a lever to force them into
treatment.
I did something like that in Philadelphia. It was
successful. I do not think it was continued after I left. But
what we did, when we would do these--I do not want to call them
``round-ups,'' but you would do an operation to get sellers,
but we would also get some users. We had a drug treatment
center, and with the concurrence of the D.A., we told them,
``Here is your choice. You can come with us now to jail, or you
can go over here and register with this drug clinic.'' And most
of the time they went over to register with the drug clinic.
Now, the problem was there was not enough money available.
There was not enough treatment. But I think you have to do
both. You need to be tough on the enforcement end, but on the
treatment end, I think you need to have a heart.
Chairman Durbin. What do you think about the fact that so
many people are in prison today for drug-related crimes, many
of whom were addicts themselves, and most of whom receive
little or not treatment or counseling once incarcerated?
Chief Timoney. You know, whether it is treatment for drugs
or education, you really have a captive audience--I hate to
play that pun--and why wouldn't you use that year or 2 years or
3 years to create some good in there? So if it is drug
treatment, by all means, give them that, but also the
education. What we see in Miami and other cities are young men
going in, late teens, early 20s, do not know much, do not have
a high school education. But the one thing they learn in there
is how to be better criminals when they come out. And I am not
a softie, but that is the reality that we face. And, you know,
it is no surprise that they come out and reoffend within 3 to 6
months, because there has been no effort--you know, the non-
sexy part of the criminal justice system is the corrections
part. Everybody wants to--and I like getting the resources to
the cops. We are the sexy part. But the hard part is the back
part, the corrections, and not enough money goes there.
Chairman Durbin. That is your point, Mr. Hutchinson. You
talked about resource allocation here and putting a lot of
resources and going after the crack cocaine offender instead of
going after what you think--and I happen to agree--are the real
sources of the problem. And I thought you made an interesting
challenge to us, and I am going to challenge you right back. If
you do not go after it by quantity--you have been around this
as a prosecutor and at the Federal policy level--what do you
think is a more effective way to go after this scourge of
narcotics? How would you write the law now that you have seen
this from so many different aspects?
Mr. Hutchinson. Well, the Sentencing Guidelines have built
in different criteria that they give credit if you are in a
managerial role or you have a sentence enhancement, you know,
if you are profiting, if you are financing, if you have got
financial assets that you have invested as a result of the drug
trade. All of these indicate that you are--whether you are
kingpin or whether you are a mid-level dealer, it shows that
you have a high level of culpability and responsibility.
Those are the types of factors that I think Congress should
build into targeting our resources, and obviously, you build
the sentencing structure, but the law enforcement officials are
going to take that and say this is the priority. And so that is
where we ought to be investing our resources.
As I indicated, in Arkansas--and I think this is reflected
nationwide--whenever you can put somebody away for 5 to 10
years on a mandatory minimum for crack cocaine, well, that is
rewarding law enforcement with long penalties. We want to
encourage them to go beyond that to the higher-level dealers,
and I think it starts with, if you are going to have mandatory
minimums, let us not just have it quantity based but have it
based upon the real role they play in the trafficking
enterprise.
Chairman Durbin. You heard Mr. Parker's story about his
sister. She does not sound to me like a big trafficker in
drugs. The story sounds to me like a very vulnerable woman who
faced addicting and a lot of bad choices and now is sentenced
to 22 years in prison as a result of it. So let me ask you to
respond to his story from his family's side.
Mr. Hutchinson. Well, his point is well taken that if it
had been powder cocaine, then it would have been probably half
the sentence. But the fact is that if it had been powder
cocaine, a Federal prosecutor probably would have looked at
that and said let us defer this to State prosecution; it is not
a serious enough offense even to pursue.
We do not know all the factors, but I think that very well
could have been the judgment. And if it, in fact, had been in
State court then, I would hope they would look at this and say
this is a lady with an addiction problem. Primarily she has an
addiction problem. And let us make sure that she has the
treatment necessary to get over that addiction. And that is not
to minimize the conduct. There is a second offender element
here. There is a selling offense that is here. But, clearly,
his heart-wrenching story really cries out to Congress for the
need to remedy this disparity.
Chairman Durbin. Thank you.
Senator Hatch?
Senator Hatch. Well, I want to thank all three of you for
being here. I am in the middle of a big Finance Committee
markup--not markup but session on health care. But I have
appreciated all the testimony I have heard.
Chief Timoney, I think you have added a lot here today, and
nobody is going to think you are a pushover, so do not worry.
[Laughter.]
Senator Hatch. And, Asa, you have been one of the more
erudite people around here for years, and, frankly, I am very
pleased to listen to your testimony.
Mr. Parker, I empathize with you and your sister. I think
we have far too many people who are drug addicted in jail. We
have got to find a better system than what we have now because,
generally, prison does not necessarily help them get over their
addictions. It can in some areas where you have enlightened
leadership and so forth, but there are a lot of areas where we
do not have enlightened leadership and where it does not work.
So I have been a proponent of trying to narrow this
difference between crack and powder cocaine for years, and
hopefully we can do something, Mr. Chairman, and get that
changed this year. But, also, we need to go beyond that. We
need to come up with a better way of handling these kids that
otherwise have not had much of a chance, who get addicted and
find some way, short of prison. In cases like Asa said, Mr.
Hutchinson said, your sister, there are some other factors
there that made them probably want to put her in jail for
longer, but, still, I think we need a better system where we
can hopefully do some things for these folks short of prison.
That may be hoping for too much sometimes, but I have been
thinking about this for a long time, and we are not winning
this war on drugs at all, in my opinion, and we need a better
system. Hopefully we can in this Judiciary Committee work
during this coming year or so to try and come up with a better
system that makes sense and yet would be properly supervised
and managed.
But thank you, Mr. Chairman, I appreciate it. And I am
going to keep helping here and see what I can do to work with
the Chairman and others to resolve this very, very difficult
set of situations.
Chairman Durbin. Thank you, Senator Hatch. I know you have
important responsibilities in the Finance Committee. If you had
been here earlier, you would have heard me say something nice
about you on the record.
[Laughter.]
Senator Hatch. Somebody tell me what he said.
No, he is a good friend--tough as nails, but I am not
exactly considered a pushover myself.
Chairman Durbin. Thanks a lot.
Senator Hatch. I appreciate it.
Chairman Durbin. Chief Timoney, I am not going to just
single you out, but if we could have the help of law
enforcement professionals like yourself in thinking about how
to respond to this and perhaps doing the right thing here and
figuring out what else by way of sentencing or policy--Mr.
Hutchinson as well--that we can change that might really help
us do something effective to reduce drug usage, your voice and
the voice of your fellow professionals could really make a
difference in this conversation, and I hope you will accept
that invitation if we get back to you.
Chief Timoney. I will, and, Senator, thank you for the
opportunity. I am also the President of PERF, and over here is
our Executive Director, Chuck Wexler, who does an awful lot of
work with the Federal Government. But as you move forward, if
you need--I hope I am not speaking out of class, Chuck. If you
need the assistance of PERF, because we represent most of the
major chiefs across America, across the world really, that
input of PERF by all means, call on us.
Chairman Durbin. We need you and I thank you.
Mr. Parker, thanks. Tell your sister we are thinking about
her, and I hope you will share some of the things that were
said today. And I hope it gives her some hope to carry on.
Maybe at the end of the day there will be justice, and I would
love to see her back with those kids as soon as possible. I
think that would really be justice and fairness at this point.
Mr. Hutchinson, thank you as well.
There are a lot of statements that will be made part of the
record here, without objection--and there is no one here to
object.
[Laughter.]
Chairman Durbin. Since there are no further comments from
our panel, I would like to thank you all for being here. The
record will remain open for a week for additional materials,
and written questions for the witnesses may be sent your way,
which I would appreciate timely response to.
As we close this hearing, I urge everyone to remember
Eugenia Jennings' children--Radley, Radisha, Cardez--and also
Judge Murphy's plea to Congress when he sentenced Ms. Jennings
to almost 22 years in prison, and I quote, ``It is an awful
thing, an awful thing to separate a mother from her children.''
This hearing is adjourned.
[Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]
[Questions and answers and submission for the record.]
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