[Senate Hearing 110-672]
[From the U.S. Government Publishing Office]
S. Hrg. 110-672
FEDERAL COCAINE SENTENCING LAWS: REFORMING THE 100-TO-1 CRACK/POWDER
DISPARITY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIME AND DRUGS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 12, 2008
__________
Serial No. J-110-73
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
------
Subcommittee on Crime and Drugs
JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts LINDSEY O. GRAHAM, South Carolina
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 JEFF SESSIONS, Alabama
RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma
Todd Hinnen, Chief Counsel
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 1
prepared statement........................................... 141
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 5
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 178
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 198
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 4
WITNESSES
Felman, James E., Co-Chair, Committee on Sentencing, Criminal
Justice Section, American Bar Association, Washington, D.C..... 16
Hinojosa, Ricardo H., Chair, U.S. Sentencing Commission,
Washington, D.C................................................ 10
Shappert, Gretchen C.F., U.S. Attorney, Western District of North
Carolina, Department of Justice................................ 7
Volkow, Nora D., M.D., Director, National Institute on Drug
Abuse, National Institutes of Health, Department of Health and
Human Services, Washington, D.C................................ 14
Walton, Reggie B., District Judge for the District of Columbia,
and Member, Criminal Law Committee, Federal Judicial
Conference, Washington, D.C.................................... 12
QUESTIONS AND ANSWERS
Responses of James E. Felman to questions submitted by Senators
Biden Leahy, Kennedy and Coburn................................ 35
Responses of Ricardo H. Hinojosa to questions submitted by
Senators Biden, Leahy, Kennedy, Feingold and Coburn............ 57
Responses of Gretchen Shappert to questions submitted by Senators
Biden, Leahy, Kennedy, Feingold and Coburn..................... 74
Responses of Nora D. Volkow, M.D. to questions submitted by
Senators Biden, Leahy, Kennedy and Coburn...................... 97
Responses of Reggie B. Walton to questions submitted by Senators
Biden, Leahy, Kennedy, Feingold and Coburn..................... 103
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Caroline Fredrickson, Director
and Jesselyn McCurdy, Legislative Counsel, Washington, D.C.,
statement and letter........................................... 122
Arboleda, Angela M., Director, Civil Rights and Criminal Justice
Policy, National Council of La Raza, Washington, D.C.,
statement...................................................... 132
Cassilly, Joseph I., State's Attorney, Harford County, Bel Air,
Maryland and President-Elect, National District Attorneys
Association, Alexandria, Virginia, statement and attachment.... 143
Families Against Mandatory Minimums (FAMM), Julie Stewart,
President, Washington, D.C., letter............................ 148
Felman, James E., Co-Chair, Committee on Sentencing, Criminal
Justice Section, American Bar Association, statement........... 150
General Board of Church and Society of The United Methodist
Church, Jim Winkler, General Secretary, Washington, D.C.,
letter......................................................... 158
Hernandez, Carmen D., President, National Association of Criminal
Defense Lawyers, Washington, D.C., statement................... 159
Hinojosa, Ricardo H., Chair, U.S. Sentencing Commission,
Washington, D.C., statement.................................... 164
Hynes, Charles J., District Attorney, Office of the District
Attorney, Kings County, Brooklyn, New York, letter............. 175
Kramer, A.J., Federal Defender for the District of Columbia,
Washington, D.C., statement.................................... 182
Martin, John S., Jr., Attorney at Law, Martin & Obermaier, LLC,
New York, New York, letter and attachment...................... 200
Mennonite Central Committee (MCC), Rachele Lyndaker Schlabach,
Director, Washington Office, Washington, D.C., letter.......... 205
NAACP Legal Defense & Educational Fund, Inc., (LDF), Theodore M.
Shaw, Director-Counsel, Washington, D.C., letter............... 206
National Association of Criminal Defense Lawyers, Carmen D.
Hernandez, President, Washington, D.C., letter................. 212
Piper, Bill, Director, National Affairs, Drug Policy Alliance,
Washington, D.C., statement and letter......................... 213
Religious Action Center of Reform Judaism, Rabbi David
Saperstein, Director and Counsel, Washington, D.C., letter..... 220
The Sentencing Project, Marc Mauer, Executive Director,
Washington, D.C., letter....................................... 221
Shappert, Gretchen C.F., U.S. Attorney, Western District of North
Carolina, Department of Justice, statement..................... 223
Shelton, Hilary O., Director, NAACP Washington Bureau,
Washington, D.C., statement and letter......................... 234
Students for Sensible Drug Policy (SSDP), Kris Krane, Executive
Director, Washington, D.C., letter............................. 241
Taifa, Nkechi, Esq., Senior Policy Analyst, Open Society Policy
Center, and Convener, Justice Roundtable, Washington, D.C.,
statement...................................................... 243
Unitarian Universalist Association of Congregations, Robert C.
Keithan, Director, Washington, D.C., letter.................... 256
Volkow, Nora D., M.D., Director, National Institute on Drug
Abuse, National Institutes of Health, Department of Health and
Human Services, Washington, D.C., statement.................... 257
Walton, Reggie B., District Judge for the District of Columbia,
and Member, Criminal Law Committee, Federal Judicial
Conference, Washington, D.C., statement........................ 264
Washington Times, February 12, 2008, article..................... 273
FEDERAL COCAINE SENTENCING LAWS: REFORMING THE 100-TO-1 CRACK/POWDER
DISPARITY
----------
TUESDAY, FEBRUARY 12, 2008
U.S. Senate,
Subcommittee on Crime and Drugs,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Joseph R.
Biden, Jr., Chairman of the Subcommittee, presiding.
Present: Senators Biden, Kennedy, Feingold, and Sessions.
OPENING STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR
FROM THE STATE OF DELAWARE
Chairman Biden. Good afternoon. The hearing will come to
order. We are going to start a few minutes earlier because two
of my colleagues who will be here and who have great interest
in the subject will come and make an opening statement and will
have to leave and come back. So I will get my opening statement
out of the way.
I say to the witnesses all, welcome. Delighted to have you
here. We appreciate your taking the time.
What we will do is I will make an opening statement here,
and then, I am told Senators Kennedy and Feingold each plan on
coming, and if any of my Republican colleagues do, and they
have to go back to another Committee meeting, then I will let
them make an opening statement, and we will turn to all of you
for your statements, if that is appropriate, if you do not
mind.
So let me begin by saying thanks on behalf of the
Subcommittee for being here, all of you. We are going to
examine an issue that has long been the subject of vigorous
debate and study: the difference in the way in which Federal
law treats drug offenses involving powder cocaine versus crack
cocaine.
As you all know, under the current law, the mere possession
of 5 grams of crack, which is slightly less than the weight two
sugar cubes, and these are about the size--you cannot see
these, but these look about the size of little sugar cubes
here--carries the same 5-year mandatory minimum sentence as
distributing 500 grams of powder cocaine, the amount of sugar
that I just held up. I will make it clear: This is all sugar up
here.
[Laughter.]
Chairman Biden. And not sugar in the parlance of the street
sugar.
Many have argued that this 100-to-1 disparity is arbitrary,
unnecessary, and unjust, and I agree. And I might say at the
outset in full disclosure, I am the guy that drafted this
legislation years ago with a guy named Daniel Patrick Moynihan,
who was the Senator from New York at the time. And crack was
new. It was a new ``epidemic'' that we were facing. And we had
at that time extensive medical testimony talking about the
particularly addictive nature of crack versus powder cocaine.
And the school of thought was that we had to do everything we
could to dissuade the use of crack cocaine. And so I am part of
the problem that I have been trying to solve since then,
because I think the disparity is way out of line.
The current disparity in cocaine sentencing I do not think
can be justified on the facts we know today and the facts we
operated on at the time we set this up.
In 1986, crack was the newest drug on the street, and
Congress was told that this smokeable form of cocaine was
instantly addictive and that its effect on a child if smoked
during pregnancy was far worse than that of other drugs and
that it would ravage our inner cities.
I remember one headline that summed it up well, and it read
``New York City Being Swamped by `crack'; Authorities Say They
Are Almost Powerless to Halt Cocaine.'' And they called it
``the summer of crack'' in that headline.
In Congress, more than a dozen bills were introduced to
increase the penalties for crack. Because we knew so little
about it, the proposals were all over the map, ranging from the
Reagan administration's proposal of a 20-to-1 disparity to
Senator Chiles's proposal--the late Senator Chiles, late
Governor Chiles--of 100-to-1.
Senators Byrd, Dole, and I led an effort to enact the Anti-
Drug Abuse Act of 1986 which established the current 100-to-1
disparity. Our intentions were good, but much of our
information turned out not to be as good as our intentions.
Each of the myths upon which we based the sentencing disparity
has in some ways been dispelled or altered. We know that crack
and powder cocaine are pharmacologically identical, and they
are simply two forms of the same drug. Crack and powder cocaine
cause identical psychological and physiological effects once
they reach the brain. Both forms of cocaine are potentially
addictive.
The two drugs' effects on a fetus are identical. The
``generation of crack babies'' many predicted, including me,
has not come to pass. In fact, some research shows that the
prenatal effects of alcohol exposure are ``significantly more
devastating to the developing fetus than cocaine''--although I
would point out that if you ingested the same amount of powder
cocaine as crack cocaine as frequently, it would have a
profound effect;
Crack simply does not incite the type of violence that was
feared. Gangs that deal in other types of drugs are every bit
as violent as crack gangs. I would argue meth is even more
dangerous in terms of the way the gangs operate.
After 21 years of study and review, these facts have
convinced me that the 100-to-1 disparity cannot be supported
and that the penalties for crack and powder cocaine trafficking
merit similar treatment under the law.
The past 21 years has also revealed that the dramatically
harsher crack penalties have disproportionately impacted on
inner-city communities, the African-African community: 82
percent of those convicted of crack offenses in 2006 were
African-Americans.
With many of the starting premises not as starkly viewed as
being correct, last June I introduced the Drug Sentencing
Reform and Cocaine Kingpin Trafficking Act, which eliminates
the disparity between crack and powder cocaine offenses.
Totally eliminates it. It does so without raising penalties for
powder because there is not a shred of evidence that shows
powder penalties are inadequate.
My bill also eliminates the 5-year mandatory minimum
sentence for simple possession of crack, the only mandatory
minimum for possession of a controlled substance.
It focuses Federal resources where we need them most--on
major drug kingpins, not users and low-level dealers. And it
provides sentencing enhancements for all drug offenses that
involve a dangerous weapon or violence.
And it provides $30 million in grants to State and local
governments to fund programs that improve the availability of
drug treatment for offenders in prisons, jails, juvenile
facilities, and those on supervised release.
I want to commend Senators Hatch and Sessions for their
leadership on this issue and their respective bills to reduce
the disparity. I hope we can work together to permanently fix
this injustice, and I am willing, as I am sure they are, to
consider one another's proposal and see if we can work
something out.
There is a growing movement for bold action on this issue.
Eight members of this Committee--four Republicans and four
Democrats--are supporting one of the bills pending before this
Committee.
In November, the bipartisan United States Sentencing
Commission sent Congress an amendment to address what it
called, and I quote, the ``urgent and compelling'' crack/powder
disparity. Congress accepted the measure, which modestly
reduced crack penalties pending comprehensive congressional
action.
The report that accompanied the Sentencing Commission's
amendment is the fourth such report--and I have a copy of it
here--that the Commission has issued in 12 years calling for
Congress to take actions to substantially reduce the crack/
power sentencing disparity.
Editorial boards around the country have also urged
Congress to act. The New York Times, San Francisco Chronicle,
St. Petersburg Times, the Detroit Free Press, and Miami Herald
all have endorsed my bill, and I am sure there are as many that
have endorsed the bill of my colleagues who have an alternative
approach.
So I welcome debate and discussion on this issue because I
am not convinced that any disparity in the sentencing of crack
and powder defendants is justified given what we have come to
know.
Now I would like to turn over the floor to my distinguished
colleague from Alabama, Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and I believe we
are now on a path to do something right about this problem. I
have for some time believed that the crack/powder disparity
cannot be justified. I authored legislation in the year 2000
with Senator Hatch, and we have just not been able to get the
ball rolling. So I am glad you are having this hearing. It is
time--I mean, it is past due. We need to confront this problem.
Senator Biden, I was a Federal prosecutor when you passed
the Sentencing Guidelines; you and Senator Thurmond and Senator
Kennedy and others supported that. I believed then and believe
today that it was a tremendous step forward because Federal
judges literally could give people probation or 20 years in
jail for the same offense, no matter how much cocaine or how
little cocaine. And it created uniformity.
But I believe, as Members of the Senate, if we are going to
declare what sentences should be within narrow ranges, we ought
to listen to what is happening out there. Let's see what our
experience teaches us. Does it teach us that the level of
sentencing that we have done is perfect, or should it be
adjusted?
So I would just say with this aspect of the Federal
Sentencing Guidelines, it is out of sync. It is not justified.
I do not believe that we can justify the severity of sentences
that we are receiving for crack cocaine.
Now, I do remember, just like you said, Mr. Chairman, I was
a prosecutor in the mid-1980s. Crack started arising, and
people predicted it would spread. And it shocked me how fast it
spread to rural Alabama--not just an urban area like Mobile,
where I was, but throughout the rural areas. People were using
crack, and it changed the--gangs did form. There was a great
deal of violence, and we utilized that to prosecute gangs.
I noticed it was surprising to me how many of the people
that were convicted had charges for murder and armed robbery
and other kinds of charges that tended to be violent gangs.
But I think we are at a point now where this 100-to-1
disparity that does fall heavier on the African-American
community simply because that is where crack is most often used
has got to be fixed. I want to join you in this, and let's do
it this year. Let's get it done.
Chairman Biden. I hope we can. I would point out, back at
the time we were writing this legislation, the Sentencing
Commission, and I recall testimony from distinguished witnesses
pointing out that in Florida, unless someone had 5 kilos of
cocaine, they were not moved in the Federal system. There was a
swamp in everything. But rather than go back and talk about
what it was, I would like to get this expert testimony as to
how they see it now.
With your permission, Senator, before you walked in, I was
asked--Senator Feingold as well as Senator Kennedy have a keen
interest in this and are not going to be able to stay for the
whole hearing. Would you mind if they made brief opening
statements?
Senator Sessions. No. That would be fine. I would yield.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. I thank both the Chairman and Senator
Sessions very much. It is a little out of order, so I do
appreciate it. And thank you for holding the hearing and for
your strong leadership on this, Senator Biden.
The disparity in sentencing between crack and powder
cocaine offenses is a serious blemish on our system of justice.
Over the past 20 years, it has become clear that neither public
health nor law enforcement considerations justify the
disparity. To the contrary, its effects are pernicious. It
diverts resources to low-level offenders and exacerbates
overcrowding in Federal prisons, and it has a dramatically
disproportionate effect on African-Americans, which undermines
confidence in the Federal justice system in many communities.
I applaud the U.S. Sentencing Commission for taking an
important step to address this problem by lowering the base
offense level for crack cocaine offenses. I wrote to the
Commission in December, along with Senator Webb and Senator
Kerry, urging the Commission to make this adjustment
retroactive, and I was pleased that it did so. As the
Commission recognized, a sentence that is unfair for people who
are sentenced today is equally unfair for people who were
sentenced a year or a decade ago. That is why the Commission
for the past 20 years has made every reduction in drug
sentencing retroactive.
Last week, testifying before the House Judiciary Committee,
Attorney General Mukasey opined that applying the adjustment
retroactively could threaten public safety by allowing the
early release of violent crack cocaine offenders. But no
offender will be entitled to automatic release. A judge will
examine every case individually to determine whether a reduced
sentence is appropriate. The Attorney General expressed concern
that this would be too much of a burden on judges, but the
Judicial Conference of the United States supported making this
adjustment retroactive. We should listen to the expertise of
the Sentencing Commission and the Judicial Conference, and we
should not undo the progress that has been made.
Instead, we should focus on furthering this progress. I am
a cosponsor of Chairman Biden's bill, S. 1711, which would
eliminate the disparity by increasing the amount of crack
cocaine necessary to trigger the mandatory minimum sentence. It
would also eliminate the 5-year mandatory minimum sentence for
possession of crack cocaine, which is the only mandatory
minimum that exists for simple drug possession. It would
substitute more effective tools, such as grants for improving
drug treatment for prisoners; increased monetary penalties for
major drug traffickers; and revised guidelines, if the
Sentencing Commission finds it appropriate, to reflect the use
of a dangerous weapon or violence in drug offenses. I commend
Senator Biden for the bill, and I am pleased to support it.
For two decades, the evidence has accumulated that the
current approach to crack cocaine offenses is wrong. On
multiple occasions, the U.S. Sentencing Commission has urged
Congress to address this problem. It is high time that we
fulfill our responsibility as legislators to fix this law so
that we can begin to wash away the stain it has left on our
system of justice.
Thank you very much, Mr. Chairman.
Senator Sessions. Mr. Chairman, I just briefly would say I
do value the Sentencing Commission's recommendations. I think
we in Congress ought to listen to them because we define the
sentences so narrowly that we need constant feedback on what
good public policy is.
Second, I do want to emphasize that we have had a
significant reduction in drug use in America and we have broken
up--and violent crime is down, and a large part of that is
tough sentences. There is just no doubt about it. Not many
people shoot people. Not many people sell cocaine. So focusing
on those and having tough sentences is not bad.
Finally, I would like to thank my former Attorney General
colleagues. Senators Salazar, Pryor, and Cornyn have joined
with me in introducing the legislation to reduce this
disparity. They have all been prosecutors. They know the real
world out there. And we have all concluded we need to do better
and create a more legitimate sentencing range for these kind of
offenses.
Thank you.
Chairman Biden. Thank you.
Now let me introduce our distinguished panel of witnesses.
First, Gretchen Shappert will testify for the Department of
Justice. Ms. Shappert is currently a United States Attorney for
the Western District of North Carolina, a post she was
appointed to in the year 2004.
Next is the Honorable Ricardo Hinojosa. The judge was
appointed to the Sentencing Commission by President Bush in
2003 and has chaired it since 2004. He also serves as United
States District Judge for the Southern District of Texas, and
he was appointed to that post in 1983 by President Reagan.
Testifying for the Federal Judicial Conference is the
Honorable Reggie B. Walton, United States District Court Judge
for the District of Columbia. After President Bush nominated
Judge Walton in 2005, former Chief Justice Rehnquist appointed
Judge Walton to the Judicial Conference's Criminal Law
Committee. Prior to his appointment to the bench, Judge Walton
served as President George H.W. Bush's Associate Director for
the Office of National Drug Control Policy and as then-
President Bush's senior White House adviser on crime.
And I am going to mispronounce the name. Dr. Nora Volkow
serves as the Director of the National Institute of Drug Abuse
of the Department of Health and Human Services and is a
research psychiatrist and scientists. The doctor pioneered the
use of brain imaging to investigate the toxic effects on drugs
and their addictive properties.
And James Felman is a Co-Chair of the Committee on
Sentencing in the Criminal Justice Section of the American Bar
Association and has handled several high-profile criminal
appeals as an expert in Federal sentencing law.
I welcome you all, and I would invite your testimony in the
order you have been introduced.
STATEMENT OF GRETCHEN C.F. SHAPPERT, UNITED STATES ATTORNEY,
WESTERN DISTRICT OF NORTH CAROLINA, DEPARTMENT OF JUSTICE
Ms. Shappert. Thank you, Chairman and Senator Sessions and
members of the Subcommittee. I appreciate the opportunity to
appear before you on behalf of the Department of Justice to
discuss Federal cocaine sentencing policies. My name is
Gretchen Shappert. I am the United States Attorney for the
Western District of North Carolina. I have been in public
service most of my professional life, both as a prosecutor and
as an assistant public defender. And last week, I completed
4\1/2\ consecutive weeks of trial in my district, two of the
cases involving individuals who were distributing crack
cocaine. Indeed, much of my career in public service has been
defined by the ravages of crack cocaine.
The Department of Justice recognizes that the penalty
structure and quantity differentials for powder and crack
cocaine created by Congress as part of the Anti-Drug Abuse Act
of 1986 are seen by many as empirically unsupportable and
unfair because of their disparate impact. As this Subcommittee
knows, since the mid-1990s, there has been a great deal of
discussion and debate on the issue. I am here today on behalf
of the Department of Justice to affirm our willingness to
engage in discussions with this Subcommittee regarding the
current statutory differential between crack and powder
cocaine.
Any discussion of the crack and powder cocaine differential
must also address the serious public safety concerns and court
administrability issues raised by the impending retroactive
application of the Sentencing Guideline Amendments to crack
cocaine offenders. Because Congress only has until March 3rd to
address the United States Sentencing Commission's decision,
Attorney General Mukasey last week asked Congress to quickly
enact legislation to prevent the retroactive application of the
Sentencing Commission Amendments. Specifically, he asked
Congress to ensure that serious and violent offenders remain
incarcerated for the full terms of their sentences. In calling
for action, he emphasized that ``we are not asking this
Committee to prolong the sentences of those offenders who pose
the least threat to their communities, such a first-time
offenders and non-violent offenders. Instead,'' he said, ``our
objective is to address the Sentencing Commission's decision in
a way that protects public safety and addresses the adverse
judicial and administrative consequences that will result.''
Mr. Chairman, because you asked that the Department of
Justice address the sentencing disparity issue first, I will
begin with that, and then turn to our deep concerns about
retroactive application of the guidelines.
It has been said, and I certainly believe based upon my
experience, that whereas cocaine powder destroys an individual,
crack cocaine destroys a community. The emergence of crack
cocaine as the major drug of choice in several Charlotte
communities in the late 1980s dramatically transformed the
landscape. We saw an insurgence of drug-related violence, open-
air drug markets, and urban terrorism unlike anything we had
experienced in the past. The sound of gunfire after dark was
not uncommon. Families were afraid to go out of their homes at
night for fear of violence, and individuals slept in their
bathtubs to avoid stray gunfire.
I have also seen the dramatic results when Federal
prosecutors, allied with local law enforcement and community
leaders, make a commitment to take back neighborhoods from the
gun-toting drug dealers who have laid claim to their
communities. The successes of our Project Safe Neighborhoods
initiatives, combined with Weed and Seed, have had a tremendous
transforming effect on communities.
In Shelby, North Carolina, for example, Federal prosecutors
initiated prosecutions of violent crack-dealing street gangs
and helped to slash the crime rate in that community, enabling
community leaders to begin to deal with community problems, to
build a community garden, to initiate truancy programs and
sporting programs for young people. Traditional barriers are
breaking down, and Shelby is a thriving and diverse Southern
city, and this would not have happened but for a systematic
response to the cocaine problem.
In the jury trial I just completed last Wednesday night,
the jury heard stories about gun-toting drug dealers kidnapping
one of their co-conspirators and holding him for ransom. These
are the sort of things that we have seen and associated with
crack dealing.
I know from my conversations with prosecutors across the
country that our experience in North Carolina is not unique,
and my purpose in being here is to underscore the importance of
continuing strong initiatives to fight drug violence.
Toward this end, we believe that any reform in cocaine
sentencing must satisfy two important conditions: first, any
reforms should come from the Congress, not the Sentencing
Commission; second, any reforms, except in very limited
circumstances, should apply only prospectively.
Bringing the expertise of the Congress to this will give
the American people the best chance for a well-considered and
fair result that takes into account not just the differential
between crack and powder on offenders, but the implications of
crack and powder cocaine trafficking on the communities and
citizens whom we serve.
What we are talking about is whether the current balance
between the competing interests in drug sentencing is
appropriate. We are trying to ascertain what change will ensure
that prosecutors will have the tools to effectively combat drug
dealers like those who have terrorized cities in North Carolina
while addressing the concerns about the present structure's
disproportionate impact upon African-American offenders. This
is a decision for which the Congress and this Subcommittee are
made. Indeed, the United States Sentencing Commission itself
recognized this fact when it delayed retroactive implementation
of the reduced crack cocaine guideline until March 3rd, thereby
giving this Congress a short window to review and consider the
broader implications of policy choices.
In considering options, we continue to believe that a
variety of factors fully justify higher penalties for crack
offenses. In the cases I have prosecuted, I have seen the
greater violence associated with crack cocaine distribution,
and the Sentencing Commission has shown a higher rate of
recidivism, a higher rate of management enhancements, and a
higher rate of related violence associated with crack
prosecutions.
But beyond the violence and beyond the increased
recidivism, beyond the leadership enhancements, crack cocaine
is, quite simply, different in its impact upon communities from
powder cocaine. Crack and powder are not equal in their
effects, and the law must recognize that differential. To treat
crack and powder cocaine as the same would be to disregard the
disproportionate impact these two drugs have on communities,
would disregard how crack is distributed, particularly street-
level drug dealers who have terrorized local neighborhoods. It
would disregard the greater level of violence associated with
crack. It would disregard the more rapid high and potential
addiction associated with crack cocaine and would disregard the
corrosive effects that crack cocaine has had on families,
communities, and human dignity.
We in the Department of Justice believe that there is a
consensus that crack cocaine and powder are different in their
consequences, and the law must reflect that difference. At the
same time, we recognize that there is not a consensus as to how
the law should codify that difference and what the penalties
should be. We intend to work with Congress to develop that
consensus.
As I indicated, the second condition of any reforms to
cocaine sentencing should also apply only prospectively, except
in very limited circumstances. Without finality, the criminal
law is deprived of its most significant deterrent effect. Even
when the Supreme Court found constitutional infirmities
affecting fundamental rights of criminal defendants, it rarely
has applied those rules retroactively. For example, the Supreme
Court has not made its decision in Booker retroactive.
The shortcomings of retroactive application of any new
rules are illustrated starkly in the Sentencing Commission's
recent decision to extend eligibility for its reduced crack
penalty provisions to more than 20,000 crack offenders already
in Federal prisons. The consequences of relitigating potential
sentence reductions for 20,000-plus offenders is like a tsunami
hitting the Federal court system.
Proponents of retroactivity argue that we should not be
concerned about the most serious and violent offenders being
released early because a Federal judge will still have to
decide whether to release such offenders. But that misses an
important point. The litigation and effort to make such
decisions in so many cases forces prosecutors, U.S. marshals,
probation officers, and judges to dedicate limited resources to
keep in prison defendants whose judgments have already been
made final under the rules that we all understood, and the
impact will be disproportionate. The greater impact will occur
in those districts that have borne the greatest problems in the
past. Fully 50 percent of the cases involving retroactivity
will impact the Fourth, Fifth, and Eleventh Circuits. In my own
district, 536 defendants are eligible for resentencing. That
represents approximately two-thirds of our caseload for an
entire year. And the litigation is likely to be far more
complicated and drawn out than many proponents of retroactivity
envisioned.
I am informed that Federal defenders in some areas have
already issued guidance to Federal defense counsel urging them
to argue for complete full-blown sentencing hearings.
Prosecutors are at a serious disadvantage if this occurs.
Agents have retired, witnesses are no longer available, files
have been archived, and the original prosecutors have moved on.
Defending the community against violent offenders is very
difficult if you no longer have the evidence.
We believe that a minimum of 1,600 offenders will be
eligible for immediate release. Many of those prisoners
eligible for release will not have the benefit of the prison
re-entry programs we associate with effectively moving people
back into their communities. And recidivism is a fundamental
concern. We know from the Sentencing Commission's findings in
2004 that the Criminal History Category III reflects a 34-
percent likelihood of recidivating; a Criminal History Category
VI reflects a 55-percent likelihood of recidivating, and that a
large number of the individuals in this population eligible for
resentencing are looking at a likelihood of recidivism.
Mr. Chairman, the Department of Justice is open to
addressing the differential between crack and powder cocaine as
part of an effort to resolve the crack retroactivity issue.
Thank you for inviting me to participate in this important
public hearing. I will be happy to respond to questions.
[The prepared statement of Ms. Shappert appears as a
submission for the record.]
Chairman Biden. Thank you very much.
Judge?
STATEMENT OF RICARDO H. HINOJOSA, CHAIR, U.S. SENTENCING
COMMISSION, WASHINGTON, D.C.
Judge Hinojosa. Chairman Biden, Ranking Member Sessions,
Senator Kennedy, I appreciate the opportunity to appear before
you today.
The United States Sentencing Commission has been
considering cocaine sentencing issues for a number of years and
has worked closely with Congress to address the sentencing
disparity that exists between the penalties for powder cocaine
and crack cocaine offenders. Although the Commission took
action this past year to address some of the disparity existing
in the sentencing guideline penalties for crack cocaine
offenses, the Commission is of the opinion that any
comprehensive solution to the problem of Federal cocaine
sentencing policy requires revisions of the current statutory
penalties and, therefore, must be legislated by Congress. The
Commission continues to encourage Congress to take legislative
action on this important issue, and it views today's hearing as
an important step in that process and thanks you for holding
this hearing.
As you are aware, in May 2007 the Commission issued its
fourth report to Congress on Federal cocaine sentencing policy.
My written statement for today's hearing contains highlights
from our 2007 report, as well as updated preliminary data from
fiscal year 2007. In the interest of time, I will briefly cover
some of the information submitted in writing.
In preliminary fiscal year 2007 data, we see a continuation
of trends we have seen with respect to crack cocaine and powder
cocaine offenses through the years. The Commission obtained
information on 6,175 powder cocaine cases, which represent
approximately 25 percent of all drug-trafficking cases, and
5,239 crack cocaine cases, which represent approximately 21
percent of all drug-trafficking cases.
Federal crack cocaine offenders have consistently received
substantially longer sentences than powder cocaine offenders.
The average sentence length for crack cocaine offenders was
approximately 129 months, whereas for powder cocaine offenders
it was 86 months. The difference in sentence lengths has
increased over time. In 1992, crack cocaine sentences were 25.3
percent longer, while in 2007 they were 50 percent longer than
powder cocaine sentences.
African-Americans continue to represent the substantial
majority of crack cocaine offenders. Our data show that in
2007, 82.2 percent of Federal crack cocaine offenders were
African-Americans, while in 1992 it was 91.4 percent.
Powder cocaine offenders are now predominantly Hispanic.
According to our 2007 data, Hispanics were 55.9 percent of
powder cocaine offenders compared to 39.8 percent in 1992; 27.5
percent were African-American compared to 27.2 percent in 1992;
and white offenders comprised 15.4 percent of powder cocaine
offenders compared to 32.3 percent in 1992.
In its 2007 report, the Commission determined the
offender's function in the offense by a review of the narrative
of the offense conduct section of the Presentence Report from a
25-percent random sample of crack and powder cocaine cases for
fiscal year 2005. For purposes of our report, offender function
was assigned based on the most serious trafficking function
performed by the offender in the offense, providing a measure
of culpability based on the offender's level of participation
in the offense. According to this analysis, 54.4 percent of
crack cocaine offenders were categorized as street-level
dealers. The largest portion of powder cocaine offenders--33.1
percent--were categorized as couriers or mules.
According to the Commission's analysis, only a minority of
powder cocaine offenses and crack cocaine offenses involve the
most egregious aggravating conduct, such as weapons
involvement, violence, or aggravating role in the offense--
although it occurs more frequently in crack cocaine offenses
than powder cocaine offenses. Information contained in the 2007
report from fiscal year 2006 data indicates that an adjustment
under the Federal Sentencing Guidelines for aggravating role
was applied in 6.6 percent of powder cocaine offenses, and an
adjustment for aggravating role was applied in 4.3 percent of
crack cocaine offenses.
The May 2007 report from fiscal year 2006 data indicates
that 8.2 percent of powder cocaine offenders received a
guideline weapon enhancement and 4.9 percent were convicted
under title 18, U.S. Code Section 924(c). By comparison, 15.9
percent of crack cocaine offenders received a guideline weapon
enhancement and 10.9 percent were convicted under 18 U.S.C.
Section 924(c).
The Commission believes there is no justification for the
current statutory penalty scheme for powder and crack cocaine
offenses. It is important to note that comment received in
writing by the Commission and at public hearings has shown that
Federal cocaine sentencing policy, as it provides heightened
penalties for crack cocaine offenses, continues to come under
almost universal criticism from representatives of the
judiciary, criminal justice practitioners, academics, and
community interest groups.
The Commission remains committed to its recommendation in
2002 that any statutory ratio should be no more than 20-to-1.
Specifically, consistent with its May 2007 report, the
Commission strongly and unanimously--the bipartisan United
States Sentencing Commission--strongly and unanimously
recommends 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-to-1 drug quantity ratio by decreasing the
5-year and 10-year statutory mandatory minimum threshold
quantities for powder cocaine offenses.
The Commission further recommends that any legislation
implementing these recommendations include emergency amendment
authority for the Commission to incorporate the statutory
changes into the Federal Sentencing Guidelines.
Sentencing Guidelines continue to provide Congress a more
finely calibrated mechanism to account for variations in
offender culpability and offense seriousness, and the
Commission remains committed to working with Congress to
address the statutorily mandated disparities that currently
exist in Federal cocaine sentencing policy.
Again, I thank you for the opportunity to testify before
you today, and I look forward to answering any of your
questions, and the Commission strongly thanks you for having
held this hearing, Senator Biden.
[The prepared statement of Judge Hinojosa appears as a
submission for the record.]
Chairman Biden. Thank you, Judge.
Judge Walton?
STATEMENT OF REGGIE B. WALTON, DISTRICT JUDGE FOR THE DISTRICT
OF COLUMBIA, AND MEMBER, CRIMINAL LAW COMMITTEE, FEDERAL
JUDICIAL CONFERENCE, WASHINGTON, D.C.
Judge Walton. Good afternoon. Thank you, Senator Biden,
Senator Kennedy, and Senator Sessions. It is a pleasure and an
honor to have the opportunity to appear here personally, but
also on behalf of the Judicial Conference.
I have thought about what I could say--I am not going to
read my testimony; you have that--I will emphasize in the
summary of my written testimony the perspective that I bring to
this issue. As you know, I worked in the first Bush
administration in the drug office and was involved in a lot of
these issues at that time. As I thought about what I would say
to you here today, I thought about, well, why did I go to law
school? I went to law school--
Chairman Biden. I ask myself that question a lot.
[Laughter.]
Judge Walton. Well, I went to law school because I saw
injustices that were taking place as I grew up. And,
unfortunately, a lot of those injustices were based upon race.
And I felt that if I became a part of the system, maybe I could
do something to ensure that whenever somebody walked into a
court of law in this country, they would be treated fairly and
that they also would be treated equally.
As I thought about the sentencing situation as it relates
to crack and powder, I thought about the many times when I have
sat in judgment and had to impose sentences. And most often
they were young African-American males whom I was sentencing.
And I knew that if I was sentencing them for something other
than crack cocaine, the sentence that I had to extract would be
significantly less. And it hurt me to have to impose those
sentences, and that is not because I am a light sentencer. I do
not think anybody you would talk to would tell you that I am
lenient when it comes to crime. But I do believe in fundamental
fairness, and the Sentencing Commission--and I applaud them for
what they have done--reached the conclusion that it is
fundamentally unfair to maintain the present system that we
have.
I do not disagree that crack has had an impact on
communities, but there are a lot of drugs that have an impact
on communities. I know in this city, for example, PCP is having
a significant impact on communities, and I also know that, yes,
drugs can destroy communities and individual lives. But, also,
moving so many of our young African-American males out of black
communities is also having a very detrimental impact.
One of the other things I do in addition to my regular job
is I am Chairman of the National Prison Rape Elimination
Commission, and I travel all throughout the country and go into
prisons. And what I see in our prisons is sad. You see all of
these young black males who are locked up, their lives
destroyed; their communities, as a result of them not being
there, destroyed. And that is not to say that we should not
punish people. I believe in strong punishment. I believe that
when people do wrong, punishment should be extracted. But that
punishment has to be fair. And I know from my own personal
experience, I have had jurors, potential jurors, who have told
me that they would refuse to sit as a juror in a case involving
crack cocaine because they know of the unfairness, and they
will not be a part of an unfair system.
And I know there are many people in the community who will
not come forward, who will not cooperate, who will not
participate in the process, because they see it as
fundamentally unfair. I do not think that is good for our
American system of justice for a sizable number of people to
feel that our system is unfair and, therefore, do not want to
be a part of it.
I know in many of our African-American communities, yes,
they are being harmed by drugs, but they are also being harmed
by the perspective that the system of laws we have as it
relates to crack cocaine is not fair. And as a result of their
perspective about that unfairness, they have a jaded
perspective about the entire criminal justice system, and that
is something I believe it is time to address.
As far as the retroactivity issue is concerned, I too have
concerns about people being released who might pose a danger to
the community. But one of the things that I think we have to
appreciate is the value of judges who have the opportunity to
look at cases and make an individual decision as to whether
this particular person should or should not be released.
If you enact legislation, what is that legislation going to
say if we repeal the courageous decision taken by the
Sentencing Commission? Is it going to say that any level of
violence at any time in a person's history is going to preclude
him or her from the benefit of what has been determined to be a
fundamentally unfair law? Because if that is what is going to
happen, are we going to say, well, if they were violent at the
time they committed the offense, but they have been locked up
for 15 years, and during those 15 years they have completed
educational programs, they have completed a drug program, they
have been exemplary inmates but, nonetheless, because they have
this prior history where maybe they carried a gun at the time
they committed the offense or maybe they did engage in some
violence 15 years ago, we are going to categorically say that
across the board they cannot be released?
On any given day in America, we have probably about 3
million of our fellow citizens locked up. And I do not have a
problem, as I say, locking people up, but I think as a society
we have to address that issue. We are expending far too much
money to incarcerate people, and we incarcerate some people for
far too long than they have to be incarcerated and who could
otherwise be returned to the community and become contributing
members of our society. I have seen individuals who have turned
their lives around. And while, as I say, punishment is
important, I think that punishment has to be fair. And I
applaud you and your fellow Senators who have decided to take
this issue on, and I sure hope that at some time during the
course of this year the Senate will see fit to rectify this
problem, which is, I think, causing many of our fellow
Americans to not believe in our judicial process.
Thank you very much.
[The prepared statement of Judge Walton appears as a
submission for the record.]
Chairman Biden. Thank you very much for your testimony,
Judge. And no one has ever accused you--
[Applause.]
Chairman Biden. Please refrain from demonstrations, pro or
otherwise. But I assure you, no one has ever accused you of
being lenient, but they have viewed you as being fair, and I
appreciate your straightforward testimony.
Doctor?
STATEMENT OF NORA D. VOLKOW, M.D., DIRECTOR, NATIONAL INSTITUTE
ON DRUG ABUSE, NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF
HEALTH AND HUMAN SERVICES, WASHINGTON, D.C.
Dr. Volkow. Yes, good afternoon. I want to thank you,
Chairman and members of the Subcommittee, for giving me the
opportunity and the privilege to come and discuss with you what
we have learned from science vis-a-vis the effects of cocaine
in the brain, and with particular emphasis on cocaine
hydrochloride (powder) and cocaine freebase (crack). I also
want to speak to you not just as the Director of the National
Institute on Drug Abuse but as a scientist, which is a
discipline whose aim is to provide with knowledge that is
objective and not subjected to the perception of what is right
or wrong.
What we have learned is that cocaine use in this country is
down from the epidemic of the 1980s; however, it is still
unacceptably high. Six million individuals 12 years or older
have used cocaine in the last year, and 1.6 million individuals
have used cocaine freebase (crack).
Why is cocaine abused? Cocaine is abused because it
increases the concentration of the chemical dopamine in
pleasure centers in the brain, and when dopamine goes up, that
produces a high sense of euphoria. Cocaine does this by
blocking the molecules that normally clean dopamine from our
brains. So when these molecules are blocked, dopamine
accumulates, and that is associated with a very intense high.
And that is the way that cocaine produces its highly
pleasurable effects, and that is also why it produces
addiction.
The effects of cocaine, regardless of whether it is smoked
freebase (crack) or whether it is taken by the hydrochloride
form, which you can snort or inject, are going to deliver the
same identical molecule in the brain. And for the equivalent
concentration, the level of blockade of those molecules that
dopamine is identical.
The difference relies in terms of why some situations lead
to more intense effects than others the route of
administration. The faster you block those molecules that
dopamine, the dopamine transporters, the more intense the high.
And the variable that determines how fast cocaine gets into the
brain and blocks dopamine transporters is not cocaine freebase
or cocaine hydrochloride, but the route of administration.
There are certain routes of administration that will deliver
that cocaine very, very rapidly into the brain. What are those
routes of? Injection, intravenous injection, smoking. How do
you, why do you--when you inject intravenously, you have to use
cocaine hydrochloride. You cannot inject freebase because it is
not going to be soluble. If you want to smoke it, you cannot
smoke hydrochloride because it is going to and you will have no
cocaine left, and that is why you have cocaine freebase.
So the two routes of administration that produce the most
intense effects are injection and smoking. And, also, those are
the routes of administration that are associated with the
highest degree of addictiveness. Indeed, early studies estimate
approximately 5 to 6 percent of individuals will become
addicted to cocaine within 2 years. Most of them go there by
injection or by smoking. There are more smokers than injectors,
and, those in treatment, we end up seeing more people that
smoke cocaine than those that inject. But most of those
individuals, which is important to recognize, started by
snorting cocaine hydrochloride. So it is a trajectory of events
that leads an individual to go from snorting into injection or
into smoking.
There are differences also vis-a-vis the consequences of
these routes of administration vis-a-vis their medical
complications. Cocaine can have very serious adverse effects
because it vasoconstricts blood vessels, and so blood does not
get into organs, and there are certain organs that do not
tolerate as well--heart and brain. That is why you can end up
with a myocardial infarct, even if you are in your 20s, or with
a stroke from the use of cocaine.
Cocaine also changes the electrical properties of cells,
and that can lead to an arrhythmia or to seizures that actually
can prove to be lethal. Both of those medical complications are
much more frequent when you inject or when you smoke than when
you snort.
There is a third complication, which is that the use of
cocaine is associated with a higher risk of infectious
diseases, such as HIV/AIDS. This is more common when you inject
because you can actually get contaminated material. But you can
also by smoking, snorting, or injecting increase the likelihood
of HIV because cocaine use, intoxication, facilitates risky
sexual behaviors.
The good news, though, is that cocaine can be prevented and
treated, and science has shown that treatment, whether it is
voluntary or mandated by the courts, is effective. Indeed,
science, for example, monitoring the effects of treatment in
the criminal justice system has shown that it is highly
effective, not just in decreasing the rate of drug use but also
in decreasing the rate of incarceration.
So, in summary, I say that when people take cocaine
freebase or they inject cocaine or they snort cocaine, the
identical molecule will end up in the brain. The difference is
going to be determined the route of administration.
Also, I wanted to just make a last statement, that as we
try to offer our knowledge and expertise together to solve this
problem of cocaine in this country, we should not forget the
importance of prevention and treatment if we are to succeed.
Thank you very much, and I will be happy to answer any
questions.
[The prepared statement of Dr. Volkow appears as a
submission for the record.]
Chairman Biden. Thank you very much, Doctor.
Mr. Felman?
STATEMENT OF JAMES E. FELMAN, CO-CHAIR, COMMITTEE ON
SENTENCING, CRIMINAL JUSTICE SECTION, AMERICAN BAR ASSOCIATION
Mr. Felman. Chairman Biden, Ranking Member Sessions, good
afternoon. My name is James Felman, and since 1988 I have been
engaged in the private practice of Federal criminal defense law
with a small firm in Tampa, Florida, and I am here today, and
honored to be so, on behalf of the American Bar Association. We
appreciate the opportunity to appear before the Subcommittee
today.
The crack/powder disparity is simply wrong, and the time to
fix it is now. For more than a decade, the ABA has been part of
a growing consensus that the disparity in sentences for crack
and powder cocaine offenses is plainly unjust. This is a
bipartisan issue. Indeed, the United States Sentencing
Commission's call for change has been consistent, even though
it has been constituted with different members appointed by
different Presidents and confirmed by Senates controlled by
different parties.
We applaud this Subcommittee and its leadership for
conducting this hearing as an important step in ending once and
for all this enduring and glaring inequity.
Beginning in 1995, the ABA endorsed the proposal submitted
to the Congress by the Sentencing Commission that would have
equalized crack and powder penalties and targeted specific
aggravating factors. The ABA has never wavered from the
position it took in 1995, and neither has the Sentencing
Commission.
In 1997, and again in 2002, the Sentencing Commission
recommended reducing the 100-to-1 ratio and repealing the
mandatory minimum for simple possession of crack.
Unfortunately, the Sentencing Commission's recommendations have
not yet been addressed.
The Sentencing Commission recently reduced crack penalties
by two offense levels. This was an important measure and went
as far as the Commission felt that it could go given its
inability to alter congressionally established mandatory
minimums. It is critical to understand, however, that this
minus-two amendment is only the beginning of what must be done
to address the crack/powder disparity.
The 100-to-1 ratio enacted by the Congress in 1986 was
premised on many assumptions, but subsequent research and
extensive analysis by the Sentencing Commission and others has
revealed were not supported by sound evidence and, in
retrospect, were exaggerated or simply false.
But although the myths which led to the 100-to-1 ratio have
proven false, the disparate impact of this sentencing policy,
particularly on the African-American community, is no myth. It
is both real and it is growing.
As the Sentencing Commission has noted, revising the crack
cocaine threshold would do more to reduce the sentencing gap
between African-Americans and Caucasians than any other single
policy change and would dramatically improve the fairness of
the Federal sentencing system. Enactment of S. 1711 would take
that much needed step.
It is important that I emphasize that the ABA not only
opposes the crack/powder differential, but also strongly
opposes the mandatory minimum sentences that are imposed for
all cocaine offenses.
Justice Kennedy, addressing the ABA in 2003, stated, ``I
can neither accept the necessity nor the wisdom of Federal
mandatory minimum sentences...[i]n too many cases, mandatory
minimum sentences are unwise or unjust.''
The ABA agrees wholeheartedly with Justice Kennedy and,
thus, strongly supports the repeal of the existing mandatory
minimums, particularly the draconian 5-year minimum mandatory
for mere possession of crack--the only drug, as mentioned, that
triggers the mandatory minimum for a first offense of simple
possession.
The average length of Federal sentences has tripled since
the adoption of mandatory minimums. The United States now
imprisons its citizens more of its citizens than any other
nation on the planet, at a rate roughly 5 to 8 times higher
than the countries of Western Europe, and 12 times higher than
Japan. Roughly one-quarter of all persons imprisoned in the
entire world are imprisoned here in the United States. And we
know that incarceration does not always rehabilitate and
sometimes has the opposite effect. For that reason, we also
strongly support the appropriation of funds for developing
effective alternatives to incarceration, such as drug courts,
supervised treatment programs, and diversionary programs. Drug
offenders are peculiarly situated to benefit from such
programs, as their crimes are often ones of addiction.
We are encouraged to see the appropriation of such funds
for State programs in S. 1711 and hope that this appropriation
can be expanded to reach Federal programs as well.
In conclusion, the ABA firmly supports passage of S. 1711
as proposed by Senator Biden and cosponsored by Senator
Feingold on the Subcommittee, among others. We also commend the
leadership of Senators Hatch, Kennedy, Feinstein, Specter, and
Sessions for their introduction of alternative bills to address
the crack/powder disparity. We hope that decisive and rapid
action will be possible.
On behalf of the American Bar Association, thank you for
considering our views on an issue of such consequence for
achieving justice in Federal sentencing.
[The prepared statement of Mr. Felman appears as a
submission for the record.]
Chairman Biden. Thank you very much. We will do 10-minute
rounds, since there is only three of us. If Senator Kennedy
comes back and has to leave, I will yield him my time.
I have a lot of questions, as you might guess. Doctor, let
me begin with you. It is the route to the brain, not the nature
of whether it is freebase or powder cocaine, that impacts on
how rapidly the dopamine is interfered with. Is that correct?
It is the route, whether--so snorting or injecting, it has the
effect on the brain more rapidly than snorting it. Is that
correct?
Dr. Volkow. That is correct. And the faster it gets, the
more intense its effects. The molecule is identical.
Chairman Biden. All right. Now, does that beg the question
or answer the question as to whether or not if one were to--is
there a higher rate of addiction--and the clinical definition
of ``addiction,'' X number of times a week, et cetera. Is there
a higher rate of addiction for those who snort cocaine versus
freebase or inject cocaine? Or is it one way or another? Is it
the same effect?
Dr. Volkow. There is a higher rate of addiction when you
inject or when you smoke than when you snort.
Chairman Biden. That was the premise upon which we started
this whole thing off. And, again, I have to take blame for what
ended up being what was in law at the time back in 1986, as the
author of this legislation. That was the testimony.
Now, let me ask any of the other witness, is the fact that
if one were--and the other study I remember seeing years ago,
back when I used to chair this Committee in the 1990s, was that
there is a correlation between HIV--a higher correlation
between HIV and crack use than HIV and powder use because of
the nature of how rapidly the high occurs and how quickly it
diminishes so that people would repeat it, they would binge on
crack cocaine. I remember going into Philadelphia bringing a
group of policemen down in the south side of Philly, in South
Philly, and there was a particular place where you could see
people walking in a side door, a woman standing up, and then
her head would be lowered, and she was performing a sexual act,
and then 10 minutes later another--you know, she would get
enough to get a hit for her. She would get literally paid in
crack cocaine. That was how she was being paid by the drug
dealer. And there was a lot of discussion about how the
promiscuous sexual behavior was associated with the frequency
and the need for this hit, as the addiction occurred, that it
did not occur as rapidly with people using powder cocaine.
Is there any truth to any of that?
Dr. Volkow. Well, again, powder cocaine can be administered
by a route that is less addictive--snorting--or by a route that
is as addictive as--
Chairman Biden. I know, but isn't the vast majority of the
consumption of powder cocaine through the nostril and not
through the veins? It is a relatively small percentage.
Dr. Volkow. Correct. The people, the individual taking the
cocaine, that is correct.
Chairman Biden. Right.
Dr. Volkow. And with respect to your question about the
risk for HIV, the highest risk actually for probably almost any
drug is injection of cocaine more than smoking of cocaine, more
than injection of heroin, because exactly what you were saying.
You need to administer the drug very frequently, every 40, 30
minutes. And so you are injecting constantly, and that leads
many people that become addicted what is called graduation to
prefer smoking over injection because of the high risk of HIV.
Chairman Biden. Right. And is the high risk to HIV in that
circumstance because of the needle or is it because of the
promiscuous behavior that it promotes?
Dr. Volkow. Two factors: the needle, the contamination
through the needle is one; and the second one, intoxication
with cocaine leads to very risky sexual behaviors, whether it
is injected, smoked, or even snorted.
Chairman Biden. OK. The next question, and the last one I
have for you, Doctor, is--I have been a very strong supporter
of drug rehabilitation programs and investing more money into
drug rehab. You made reference that programs actually work. But
let me ask you, is there any difference between--of those
people who are subjected to--either in the prison or
voluntarily move into drug rehabilitation programs associated
with cocaine by whatever means it is administered, is there a
breakdown among them based upon whether they get into rehab as
a consequence of having been addicted to cocaine through
freebasing or cocaine through snorting? I mean, or is there no
distinction? The people who end up in treatment, is it harder
or easier to treat one than the other?
Dr. Volkow. To my knowledge, there is no evidence of
easiness of treating one individual because they were using
hydrochloride versus freebase. There are many other factors
that will determine the prognosis, not whether they are
freebasing or using the hydrochloride.
Chairman Biden. Now, the allegation is made and continues
to be made that there is a greater amount of violence
associated with freebasing of cocaine. I assume that relates to
anything from the way in which it is sold to the way in which
it is used and the impact on the brain and what it causes in
reactions of people. Another thing we hear a lot about--and
there is some evidence--is that speed or methamphetamine, there
is an excessive amount of violence associated with
methamphetamine, consumption of methamphetamine. Is there a
distinction between--I am going to talk about the violence, the
violence side of the behavior.
I used to say to people, when I was doing this on a regular
basis in those years--I held thousands of hours of hearings--
that if I had to live in an apartment house where everybody was
freebasing or in an apartment house where everybody was
injecting heroin, I want to live where they inject heroin
because I do not want to--the violence associated with
injection of heroin and being on a high from heroin is
significantly different than that associated with cocaine-
induced paranoia or with regard to speed.
Is it true that there is a greater degree of violence
associated with cocaine? And if so, is there a distinction
between violence that is induced as a consequence of powder
versus crack?
Dr. Volkow. Well, first you asked me is there a distinction
between cocaine and methamphetamine, and I would say that
methamphetamine is even a more potent drug than cocaine in
terms of its ability to increase dopamine and also its duration
of effects. And as a result of that, circumstances being equal,
you can predict the one who could have potentially more adverse
effects than the other.
However, we need to consider that the consequences that we
see socially are not just the product itself, the chemical form
of the drug, but the nature of the environment that gives
accessibility to that drug. So when you speak to me and ask is
there more evidence, for example, of violence in environments
where you have high levels of crack versus a rural environment
where a person may be by themselves taking methamphetamine, I
would say, well, in that case, what is tipping the balance is
your surrounding and not the drug itself.
But coming back to the chemical actions of the drug, if you
inject, cocaine actually is going to have more aggressive--will
facilitate aggressive behavior more than heroin. So, Senator,
you chose well. You are much better off with heroin than
cocaine vis-a-vis with aggression.
Chairman Biden. Now, let me be clear: I said living in an
apartment with others who use it, an apartment complex.
Dr. Volkow. Yes, and in clinical models where you can take
rats, for example, and put them together and give them cocaine
or give them heroin, the level of aggression and attack to each
other is much greater with cocaine than heroin. There is no
reason that--we do not have an animal model for freebasing
cocaine, so we inject them. And the higher the doses, if you
inject them, the more active your animals are going to be.
So there you have an element of doses and the environment
in which you are giving the drugs to the animal. But there is
no--I mean, that is why I am sort of saying when you inject or
when you smoke, the same drug is going to end up in your body.
There is no difference at all. The circumstances may be very
different, and I think that is where the issues become more
complicated and it is not just an answer about the potency of
hydrochloride versus freebase. Because if you are asking me
directly, they are identical molecule. The circumstances may be
very different, and then that is what determines the outcomes.
Chairman Biden. Thank you. I have a lot of questions, but I
am going to yield--and I have questions for the rest of the
panel, but I am going to yield to my colleague. My time is up.
Senator Sessions. Well, this is an important subject,
Chairman Biden, and thank you for opening this discussion.
Judge Walton, you know, as the lawyer in me, I tend to not
utilize the word ``fairness'' too much, but I think at a
fundamental level, there is a sense that I have, as a former
Federal prosecutor who sent a lot of people to jail for a long
time under mandatory sentencing, that I think we do have a
fairness question for a whole host of reasons. And I think we
have a public policy question, and your experience on both
sides of the bench and having been in the drug czar's office I
think entitles you to speak to that, and I thank you for
sharing that thought.
Mr. Commissioner, thank you for the Sentencing Commission's
work. You have worked on this for quite a number of years. You
have sent messages to the Congress. You have made your
recommendations to Congress. And we just have not listened. I
mean, I have offered the legislation for 6 years, and I remain
somewhat baffled we have not fixed it before now. I thought
earlier last year--we had a press conference with former
Attorneys General that said this is the time to work on this,
it was a step in the right direction that may lead us to action
instead of talk.
And, Ms. Shappert, I am pleased that you are someone who
has actually prosecuted these cases, and you have seen the kind
of defendants that get the biggest sentences. Would you
describe that for us a little bit, what it is like, that you
have a neighborhood in your district that has been taken over
by a crack gang, and what an undercover effective Federal
prosecution can do, and how the strong sentences are effective
tools for the prosecutor to actually decimate a gang instead of
catching just one or two?
Ms. Shappert. I would be happy to. I worked a neighborhood
a couple years ago called Grier Heights. It is a community in
Charlotte that was overrun with drug dealers, and what made
this so disturbing is you had a lot of single parents in this
neighborhood, you had a lot of elderly people, and they were
absolutely terrorized by open air drug markets and crack
cocaine dealers.
We went in there with the Charlotte-Mecklenburg Police
Department and ATF with a mind toward cleaning up this
community, and what we did is we were able to identify certain
traffickers, prosecute them, and use what you are familiar with
as rolling indictments. We would do one indictment, get one
group of drug dealers, take out the next group, and keep
moving.
In my district, we have historically used a root-to-branch
approach, which is to say we do not want to just take the head
off the monster, we want to take out the entire operation. So
we not only prosecuted individuals who were open-air dealers.
We went after their sources in New York. We went after their
sources in West Palm Beach. We went after the violent
offenders, the street distributors, the cookers, the whole
operation. We indicted a total of over 70 individuals, and the
average sentence was over 200 months.
When I started prosecuting in this neighborhood, I would go
in there to do interviews, and when I would go into this
neighborhood, people would come out of their apartments to
shake my hand. They were so grateful to have their neighborhood
back. When we went to trial, a number of the neighborhood
members sat and watched the trials with us because they were so
acutely interested. And when we finished our prosecutions, the
city of Charlotte put a police satellite station in that
community so that we could reinforce our efforts to keep that
neighborhood clean.
It is important to emphasize that our entire motive was to
take back this neighborhood for the people who actually live
there. And when we talk about crack cocaine sentences, we can
never lose sight of the community that we are trying to protect
and defend.
The trial I just finished last week up in Statesville,
North Carolina, involved this community of Lenore--
Senator Sessions. And you tried this yourself?
Ms. Shappert. I tried three cases, Senator.
Senator Sessions. A United States Attorney actually got
into the courtroom?
Ms. Shappert. I tried three cases in 4\1/2\ weeks, picked
three juries, and went back to back to back on three historical
cocaine--
Senator Sessions. I am impressed.
Ms. Shappert. I am still a trial lawyer, and I practice law
where the rubber meets the road.
So in that neighborhood, we found that there were streets
that were so clogged with street traffic of drug dealers that
people could not get through. We went in there again to clean
up that neighborhood, to turn it over back to the community.
Our motive is to ensure the safety of these communities.
Senator Sessions. Right.
Ms. Shappert. And that is what we did.
Senator Sessions. I just want to say that those who may too
lightly think that we can just slash sentences across the board
and that tough sentences do not do any good, murders fell
substantially in the neighborhood where we had a major gang
prosecution. Many of those that were convicted of crack
offenses had previous murder charges against them. Some had
gotten away with it, and some had been--so these were violent
criminals that were removed from the community for long periods
of time. I do not think that this is a--so I just want to make
this point. As we go wrestle with what the appropriate sentence
is, we cannot lose sight of the fact that neighborhoods can be
destroyed, that children cannot go out to play, that the good
and decent citizens there care deeply and are glad to see
people be put away. And many come up to me and thank me for
that from those neighborhoods.
With regard to crack, in your experience, Ms. Shappert, are
you aware of much cocaine powder, hydrochloride, being injected
by needle? Or is it normally through the nasal passages?
Ms. Shappert. Well, I will tell you that when I became an
assistant public defender in 1983, there was a lot of cocaine
injection. And I can remember as an assistant public defender
asking clients who said they were stealing just because they
liked to steal to roll up their sleeves so I could inspect the
needle marks on their arms. But when crack cocaine hit
Charlotte in 1986-88, the whole circumstance changed. We almost
never see cocaine injected anymore. We see it smoked.
Senator Sessions. Now, we just had one of the most tragic
events in our community of Mobile in which an individual--I
suppose most people read about it--threw his four beautiful
children off the bridge to their death. And the Sunday Mobile
paper--I believe it was Sunday's paper--did some background
work on him, and he was a crack addict. And the family agreed
that it was his addiction to crack that put him over to that
most incredibly horrible crime.
Dr. Volkow, do you see that there is a danger from this
kind of crack addiction for violence that we cannot deny?
Dr. Volkow. Absolutely, and as mentioned before, high doses
of cocaine can produce paranoid thinking and can result in
psychosis. And what you are describing right now is a very
unfortunate case of that example where people take high doses
of the drug, with repeated administration they become
increasingly more sensitive to this paranoid effect, and it can
result in full-blown psychosis with violence.
Senator Sessions. My best judgment is that crack cocaine,
the fact that you can easily smoke it and it gives that intense
high, you do not have to use a needle to inject, creates a
greater risk than powder. But I cannot deny that both create a
risk.
Judge, would you just briefly tell us how many years the
Commission has expressed concern about that?
Judge Hinojosa. It started in 1995, and on the issue of
violence, Senator, when we wrote the 2007 report, we updated it
by going to the 2005 sample of about 25 percent of the powder
and crack cases, and we found that by using the definition of
violence as we used it, meaning injury, death, and threats of
injury or death involved in the occurrence or the commission of
the offense, that with regards to powder it was in 6.2 percent
of the cases and with regards to crack it was in 10.4 percent
of the cases. So it is a relatively small number of both,
although obviously slightly more in crack.
Senator Sessions. Could you share this--I understand that
the violence level, in the mid- to late 1980s, when I was
prosecuting more than one of these gangs, more than one,
apparently the numbers show that violence connected with crack
cocaine is less than it was sometime years ago. Do you have any
idea why that trend may be so?
Judge Hinojosa. I do not have a specific answer, but we see
it, and I would suggest--I do not disagree with you that it may
have something to do with regards to prosecutions in certain
areas. This is based strictly on Federal prosecutions, on the
people who have actually been sentenced. That is what the
Commission data shows. But you are correct; you know,
prosecution probably makes a difference.
Senator Sessions. I would say there are a couple of
reasons. One is that you apprehend the violent gang guys, and
they go to jail for 20 years, and they are not out there to do
it again. That helps keep violence down. The gun prosecutions,
the 924(c), carrying a firearm in the commission of a drug
offense, carries a mandatory 5 without parole. Do you think,
Madam U.S. Attorney, that that has caused fewer drug dealers to
carry guns as they go about their business than used to be so?
Ms. Shappert. We know from the stories of people we debrief
after they have been apprehended that they have learned to keep
their ``piece,'' as they call their gun, separate from their
drugs for that very reason, because it has discouraged carrying
guns to drug-trafficking offenses.
I also think that the increased prosecution of drug
offenses by the Department of Justice has targeted the same
people who were involved in drug-related violence and has been
highly effective in reducing the use of guns in drug crimes.
Senator Sessions. Well, I would just conclude this point
and say that it is time for us to think about this. I believe I
made my suggestion, and my colleagues have, as to what we think
a 20-to-1 ratio--as the Sentencing Commission suggested be the
minimum what they would like to see, that is where I basically
am. We do not need to send any signal that we have gone soft on
drugs, that we are going soft on drug gangs and criminals. But
at the same time, our policy needs to be rational. We do not
need to have the taxpayers pay to keep somebody in jail when it
is not worth their money to keep them there. So it is time for
Congress, I think, to give attention to it and let's reach a
conclusion and fix it.
Thank you, Mr. Chairman.
Chairman Biden. Thank you very much.
Doctor, I have one last question for you. I remember years
ago, meaning 10 years ago, maybe 15, that crack cocaine was
viewed as a great equalizer. There was an interesting
phenomenon. In the 1980s--and do not hold me to the exact
number. I do not have this in my staff material. This is from
memory. In the 1970s and 1980s, there was somewhere between 2
and 3 times as many men consuming controlled substances as
women. And then the argument was made, whether it is true or
not, that when crack was introduced in the late 1980s, it
became a great equalizer; that women who would not snort
cocaine for the first time for fear of distorting their
nostrils or would not put a needle in their arm, felt a lot
more comfortable smoking; and that that generated a closing of
the disparity from 20 or 3-to-1 men versus women to much closer
to 1-to-1. Is there any truth to that?
Dr. Volkow. To my knowledge, there is no evidence to that
particular statement, indeed, and that is why I make the point,
that most cases of addiction with freebase start with cocaine
snorting. And that is the other issue that we need to keep in
mind because the sense that we become uncomfortable by having
only cocaine hydrochloride and that will take the problem of
freebase is actually not justified. Why? Because once a person
becomes addicted, they will seek a different route of
administration. If there is no freebase, they will inject. And
history has already given us that lesson.
The other thing today, in my curiosity, I entered into
Wikipedia to see what you all could get very easily out of the
Web on crack cocaine, and lo and behold, you have there the
recipe for producing cocaine freebase from cocaine
hydrochloride. So let's not kid ourselves. If someone wants to
take cocaine freebase, they can cook it themselves just
following the guidelines.
So there is no evidence in that respect, therefore, coming
back to your question, that it was the equalizer in the use of
drugs for cocaine or for other drugs. That is not the case.
Unfortunately, we have been seeing equalization on the rates of
drug use, both for legal and illegal, in women and for all
types of drugs. And in some, like prescription medication,
females are starting to outnumber males. So it was not due to
crack.
Chairman Biden. Thank you.
May I ask you, Ms. Shappert, what is the Department's
position on the minimum mandatory portion of--forget
equalizing, but the minimum mandatory requirement that exists
for use of crack cocaine?
Ms. Shappert. I cannot give the Department's position on
minimum-mandatory. I can tell you the Department is interested
in a dialog and a discussion with this Committee and the
Congress about changing the ratio of cocaine and cocaine powder
and addressing the sentencing disparity in light of the
concerns that have been raised by many different members of the
community. And we link that to the equally significant issue to
us of public safety, particularly with the application of
retroactivity and the 20,000 individuals who are going to be
eligible for resentencing.
Chairman Biden. Now, both judges--correct me if am wrong--
said, I thought, a similar thing. But I may be mistaken. When
you indicated that you are willing to look, the Department is
willing to look at retroactivity as it relates to the
individual case, the violence, the degree to which violence is
associated with the sentence that was received, how do you--
what is the matrix you would use? I think Judge Walton said if
someone had been violent 15 years earlier, had another violent
offense--maybe I am mistaken. It may have been you, Judge. I do
not know who said it. But that someone may have been convicted
of consuming crack cocaine, but the violent offense that he or
she has on her record was unrelated to that particular offense.
Are you saying that the violence has to be related to the
offense or the violence related to the individual who is
incarcerated as opposed to the specific offense relating to
crack?
Ms. Shappert. I am referring to what the Attorney General
said last week, which is that in terms of reviewing and
addressing this problem of the 20,000 individuals who are
eligible for resentencing, the concern of the Department of
Justice is with violent offenders and recidivists. We are far
less concerned with first offenders and small possession cases.
And in reviewing that question and addressing it with the
Congress, the dialog needs to be focused exclusively--rather,
not exclusively, but significantly on the public safety
question. So all of those matters need to be worked out in the
context of protecting the community, recognizing that these
were legitimate sentences, that we all understood that they
were legitimate sentences, and retroactivity will have profound
consequences for a lot of the communities that are the most
fragile.
Chairman Biden. Judge, would you respond to that, Judge
Walton?
Judge Walton. Well, again, I think the problem becomes what
do you say in your legislation to ensure that you are truly
keeping locked up those who are going to actually pose a danger
to the community if they are released. And I think that is very
difficult to effectuate through legislation. As the situation
now exists, if Congress does not take action, it will be
imperative on the judges, pursuant to the direction of the
Sentencing Commission, to make an assessment as to whether
someone poses a potential danger to society. And you obviously
will take into account the information provided at the time
they were sentenced by way of a presentence report, which will
be made available to the judge if he or she does not currently
have one. We will be receiving from the Federal Bureau of
Prisons information about the individual's institutional
adjustment, and if they have infractions of a violent nature,
then judges would factor that in. I know if I had that before
me, I would not be inclined to grant the reduction.
So I think looking at it from an individualized perspective
ends up making the process fairer as compared to categorically
saying that a certain standard set forth by legislation is
going to control what happens to all offenders.
Chairman Biden. Judge, does the Commission have a sense
of--or the Conference as to what kind of workload this would
impose to have to review 20,000? You do not handle 20,000
criminal cases a year.
Judge Walton. Well, that is spread throughout the entire
country, and we are only talking about, as was indicated,
around 1,600 the first year. We obviously thought about that,
and we obviously are concerned because we do have tremendous
caseloads. On the other hand, our conclusion was that we were
willing to roll up our sleeves and tackle this problem.
Chairman Biden. I just want to make sure--I am not taking
issue with you. Especially in the Rehnquist Court and now the
Roberts Court, there is a great, legitimate concern about the
caseload of the Federal district court judges. That is what we
are talking about here, correct?
Judge Walton. That is correct.
Chairman Biden. And so the question is that, if memory
serves me--and, again, I have been paying more attention to the
other Committee I chair, quite frankly, than the detail of this
one for a while now. But if I am not mistaken, the total number
of prosecutions a year in the Federal court are less than
25,000. There are more prosecutions in the city of Philadelphia
in 1 year than there are in the entire Federal criminal justice
system--at least there were several years ago.
And so my question becomes the practical. I am trying to
figure out, along with my colleagues, a practical way to--I
happen to think there should be no disparity, but a practical
way to figure out how to deal with the disparity, which
everyone seems to be coming around there has to be some change
from 100-to-1, and, second, the impact on retroactivity. My
legislation that you have endorsed, Mr. Felman, does not
include retroactivity, for example. And so that is why I ask--I
just want to make it clear for the record why I am asking. I
would hate like heck for us to get to the position where we
have reached a consensus and then find out that the bench says,
Whoa, whoa, whoa, we cannot handle this, we cannot do a review
of 1,600 cases next year in terms of the sentencing disparity
determining whether or not the retroactivity applies.
And so if we go this route, we are going to need to work
with you to make sure that we are in a position, if that is the
case, if that is the route that is chosen, that the Judicial
Conference feels confident that they can do this without
affecting the Speedy Trial Act, without affecting a whole range
of other caseload work that you Federal judges have right now.
That is the reason I raised the question.
Judge Walton. Well, the Judicial Conference has not taken a
position on whether, if there is a legislative fix, that should
be made retroactive. The only position we have taken is in
reference to the two-level decrease.
Chairman Biden. It would be the same effect. I mean, in
other words, if we do nothing at all, if we remain silent and
cannot give you consensus, then what happens is you are faced
with this retroactivity, and the question is could you handle
it now. Based on the Sentencing Commission recommendation,
could you handle the caseload? Yes, Ms. Shappert?
Ms. Shappert. To be honest with you, I am not sure we all
can. If you noticed, 50 percent of those cases are going to
fall in three circuits--the Fourth, the Fifth, and the
Eleventh. I look at my district. We are going to have at least
536, and that number is misleading. The Commission tells us 536
will be eligible, but the number is misleading for several
reasons.
First of all, where individuals have had Rule 35's and had
their sentences reduced, defendants who we thought would not be
eligible for the retroactivity will be, so that increases the
number.
The other factor we are finding in my district is that
marijuana offenders, ecstasy offenders, fraud defendants, are
also filing petitions thinking that they are eligible for this,
too. So we are having to sort through hundreds of cases to--
Chairman Biden. Do you have in the Federal system many
marijuana offenders?
Ms. Shappert. Yes, in fact, we do. Not as many as we do for
crack cocaine. I recently got a life sentence for a marijuana
offender, so, yes, we do prosecute marijuana--
Chairman Biden. I assume that was like a shipload.
Ms. Shappert. No. It was like several tractor-trailer loads
full.
Chairman Biden. Good, OK. Well, I--
Ms. Shappert. The point being is that we are dealing with a
lot of cases that had nothing to do with crack cocaine, and the
files have been archived. This 20,000 people represents 10
percent of the Federal prison population. And it is fine to say
that we will have sentencing hearings for each and every one of
these individuals to consider two levels, but there are several
factors. Files have been archived. Witnesses are gone. Agents
have retired. We do not have the same resources as prosecutors.
And if other circuits do what the Ninth Circuit has done and
seek to give a full-blown sentencing hearing, we are not
talking about simply a two-level reduction. We are talking
about potentially much more significant reductions in
sentences. Prosecutors have to review a file that is 5 or 7 or
10 years old in addition to our regular caseloads.
Judge Walton. I hear what the Justice Department is saying,
and I was formerly a member of the Justice Department for
years. I do not hear judges crying out and saying we are going
to be overwhelmed, therefore, we should not try and fix this
fundamentally unfair process. I do not hear probation
department officers saying that. My probation officers said
they feel that they can address the issue.
So I just do not hear that coming from the judiciary that
we do not have the resources; we are not willing to invest the
time to address this problem.
Judge Hinojosa. Senator, I was told that this would not be
a hearing about retroactivity, but I do want to say--
Chairman Biden. Well, it is really not. I just--but it does
come up in the context of what we are hopefully going to
negotiate with the Justice Department.
Judge Hinojosa. I do want to say something on behalf of the
Commission. I do not think anybody should be left with the
impression that the Commission just jumped into something
without having thought about this, and this bipartisan
Commission took the time to conduct studies, to have public
hearings, to receive public comment. In fact, we received over
30,000 public comments, either in the form of letters from the
ABA and other individuals and organizations. We had public
hearings. The Department of Justice was present, as well as was
the Judicial Conference. We have heard from the Judicial
Conference. And we looked at the factors we normally look at
when we make a decision under the statutes, which we are
supposed to do every time we reduce penalties, and that is how
we did it.
It was important to us that the Judicial Conference
recommended and indicated that they could handle it and that
they would be--they were supportive of this, as well as the
other individuals that we heard from. And the Commission,
having done that, then felt this was the right thing to do. We
have done it in the past with regards to other drug reductions.
It has been handled by the courts. And that is how the
Commission made its decision. This was well thought out and we
did look at all the possibilities. We also then proceeded to
indicate that this is not a full rehearing as far as the
sentencing, that this was not a full resentencing. We did this
under our guidelines. We have the statutory authority to do
that. We stated that. We indicated that there should be public
safety consideration on the part of the courts. This is not
automatic. Obviously, a Federal district judge will have to
make this decision. It can be denied. And, therefore, that will
happen in these cases. Each one of these will be looked at with
regards to people with violence in their past. As Judge Walton
indicated, these are individuals who have received higher
sentences because their criminal history categories are higher.
In some cases, they became career offenders.
And so all of this has been thought out. Their sentences
reflect that, and the Commission thought about this,
unanimously voted on this. And I do not want anybody to be left
with the impression that the Commission is not concerned about
public safety and that we have not done what is necessary with
regards to trying to protect--
Chairman Biden. Judge, understand I am trying to make your
point. I am not suggesting that it was irresponsible. But I do
think for the public at large and the press that is here
listening to this hearing, which has created a great deal of
interest for the reason it has been debated for so long, and
there is such a disparity that they understand in open public
testimony what each of you think. We have a member of the
Sentencing Commission and two Federal judges. We have a
defender, we have a scientist, and we have a prosecutor. And I
just want to make sure that everyone understands your position
from each of your expertise.
Ms. Shappert, you want to say something?
Ms. Shappert. Yes. I deeply respect the work of the
Sentencing Commission and, in fact, I testified on behalf of
the Department in front of the Sentencing Commission. One thing
that I do not think was considered by all persons--and I am
sure the Honorable Hinojosa did consider it. But one thing that
is important to remember is the Federal public defenders did
not acknowledge or did not underscore that many of them would
be seeking full-blown resentencing hearings. And I am informed
that many felt that Federal public defenders are promoting
full-blown resentencing hearings looking to the law of the
Ninth Circuit. The Ninth Circuit has already had a decision
coming out where they are making Booker retroactive for these
resentencing hearings.
Chairman Biden. Well, we could legislate that, could we
not?
Ms. Shappert. Yes, you could.
Chairman Biden. We could make that painfully clear.
Ms. Shappert. Yes, could that?
Chairman Biden. Would that go a long way in resolving the
Department's concern? In other words, if it were not a full-
blown hearing, if it were along the lines of the Sentencing
Commission recommendations, how much difficulty--if that were
codified, how much difficulty would the Department have with
that approach?
Ms. Shappert. Well, it would certainly dramatically ease
our workload and make things, we believe, more consistent
across the country. It still would require that all of these
defendants be eligible for resentencing hearings. We are still
concerned about the violence associated with the backgrounds of
some of these individuals. We still believe that there needs to
be a retroactivity fix and that the Senate is the place where
that needs to happen.
Chairman Biden. Mr. Felman, from your perspective as a
defense lawyer, how would you view this?
Mr. Felman. I think it is important that we not make these
decisions based on myths. I have been hearing a lot about these
are some of the most violent people. These are, by definition,
not crimes of violence. These are non-violent offenses. What we
have just heard is that 90 percent of crack offenders had no
hint of violence about them at all. There was no threat of
violence, there was no actual violence--90 percent. So we are
talking about 10 percent of the 19,000. And the 19,000 gets
thrown around a lot. That is the number of resentencings that
need to be done over the next decades, the next 20 or 30 years.
There are 70,000 sentences a year in the Federal system, and we
are talking about 1,600 that need to be done now.
And let's assume that all 1,600 are released, and I have
read the Attorney General's comment suggesting that we should
all be in fear of those 1,600 people who are, by definition,
convicted of a non-violent crime. And the statistic that is
missing from that discussion is the number of people who are
going to get out of prison this year, anyway. It is 650,000.
And for the Attorney General of this Nation to put our people
in fear over the release of 1,600 people knowing that otherwise
650,000 were going to be released is truly disappointing. And
even these people will not be released if a judge looks at them
and says these people could be violent, that 10 percent. They
may not be released. Even if we let all these people out, we
will still have locked up more people this year than ever
before.
And so I am in a district with the number two amount of
crack cases; the second most district is the Middle District of
Florida. And we are in the Eleventh Circuit, and it is my
understanding that the Eleventh Circuit and the Fourth Circuit
have both ruled that you are not entitled to a full
resentencing. The only circuit that has ruled that you are is
the Ninth Circuit. And so in my district, I do not hear anybody
complaining. The probation officers and the prosecutors and the
Federal defenders have been comparing lists. They have been
working diligently. There is not a tsunami. They are prepared
to professionally discharge their duty and to process these
cases and to get it done.
Thank you.
Chairman Biden. Thank you for your input.
Jeff?
Senator Sessions. Well, 650,000 released is not from
Federal prisons, right?
Mr. Felman. That is correct. That is nationwide, State and
Federal.
Senator Sessions. Right. Well, these represent--the Federal
prosecutions of crack dealers represent the worst, normally,
and that is why they have gotten heavier sentences. And I do
think--I do not know how many people will die as a result of a
mass release of 25 percent of the Federal penitentiary, but
some will, because a lot of these people will go back to this
and get involved in violence and kill somebody, much less
dealing drugs and maybe addicting more people in the future.
So I just want--I heard your point of view, but I think we
need to be realistic here. Let's ask the Department of Justice
about the 5-year mandatory sentence for mere possession of 5
grams of crack. Are you willing to talk about altering that
sentence?
Ms. Shappert. The Department of Justice is willing to
discuss the disparity, and that is across the board.
Senator Sessions. Well, I think that is an excessive
sentence myself, and I know Congressman Rangel and others were
for these tough sentences, and I supported them and Senator
Biden did, and now we have gotten--the world has changed some,
and it is time for us to look back at it and see if we can get
the thing in the right range there.
I would just conclude, Mr. Chairman, by saying that we have
had a good discussion. This is a good panel. There is no free
lunch here. If you weaken too much the sentencing, we are going
to have more crime and a more difficult time prosecuting,
because it is the fear of the large sentence that almost
guarantees large numbers of people who are apprehended will
provide the evidence necessary to convict the higher-ups. Isn't
that right, Ms. Shappert?
Ms. Shappert. Absolutely, Senator.
Senator Sessions. Judge, you have seen that yourself, and
so many of the people do not get the full sentence because in
some cases I have seen almost everybody would agree to plead
guilty and confess and tell on the rest of the gang, and they
all get a little less sentencing you would think they would
have gotten otherwise.
Judge Walton. If I could weigh in on the discussion that
was taking place when you were asking your questions,
understand I am not here personally and not on behalf of the
Conference suggesting that we should not vigorously prosecute
people who are involved drug-trafficking activity. Clearly,
individuals who are higher-ups and managers of drug
organizations should be punished if they are convicted and
punished appropriately. Clearly, individuals who are involved
in drugs and violence should be punished appropriately.
But what happens, as you know as a former prosecutor at the
ground level--I just finished a case recently--some of the top
individuals who had all of the information that would help the
Government make a case provided cooperation. As a result of
that cooperation, they will get significantly reduced
sentences. The individuals, because of our current structure
that exists regarding crack cocaine, who end up getting the
greater sentences are individuals who are the low-level
offenders who do not have any information to provide so they
cannot cooperate with the Government because they have nothing
to provide by way of assistance. So because of our sentencing
structure, they get significant sentences even though they are
not warranted as compared to the individuals who are higher up
on the totem pole. And that is one of the big concerns I have
about the practical impact of what our sentencing structure
does.
Senator Sessions. That can happen and does happen. I think
most prosecutors try to not allow that to happen. But I share
your concern.
I think we are on the road to doing something right. I
thank all of you for your participation. I am ready to get
busy. Thank you.
Chairman Biden. Well, what I would like to do--and I do not
want to make additional work for you or keep you much longer,
but I have a number of additional questions maybe I can submit
to you in writing, and they do not require long answers. But I
would like to go back to--it seems to me if we are going to--it
is not sufficient that we merely reduce the disparity, and,
again, our legislation equalizes it. But it seems to me part of
this, when we figure into this this overall debate with regard
to crack cocaine versus powder cocaine, is the mandatory
minimum sentence for first-time offenders, as well as this
notion of retroactivity, which we are going to have to face. I
acknowledge this was not the purpose of the hearing, the
retroactivity, but it was raised as part of what is
essentially--and I appreciate it. I thank the Department for
essentially publicly acknowledging they are prepared to
negotiate an overall settlement of this, whatever everyone
acknowledges is not merely a disparity but an unfair disparity.
And so there are three pieces to it: one is whether it is
1-to-1 or 100-to-1 or something in between; two is the minimum
mandatory sentences for first offender drug users; and the
third is how to deal with, if we accomplish any of that,
retroactivity. And it is interesting, that chart has just been
placed up, the violence involved in powder versus crack
cocaine. The larger message of that chart, as I understand it,
Doctor, is basically that, on average, 90 percent of the time
involving cocaine there is no violence associated with it. That
is the sort of larger, overarching piece about this, going to
this issue of are we going to release 25 percent of the Federal
prison population back onto the street who are violent
criminals who we are going to be putting back on the street.
And so I hope we will do this--not privately like secret,
but not in the hearing context, I hope we can--and I am sure
that Senators Sessions and Hatch are prepared with me to sit
down with the Department to see if we can come to some greater
sense of what a common ground might be. It may not be. My
intention is to pursue no disparity. But, also, I am a realist.
I have been here for a long time. And I would rather get
something good done than nothing done at all. So that is the
context in which I raise each of these.
One of the questions that I had--and there may be no answer
to it, but I found interesting, and, quite frankly, I did not
know--was that the--let me find the statistic--that back in the
mid-1990s, the sentences for crack cocaine were 25.3 percent
longer than powder; now it is 50 percent longer.
Is there an explanation for that, Judge? I mean, is there a
reason for that?
Judge Hinojosa. There are some possibilities as to what we
consider may be the reasons for it. Part of it is there is a
slightly higher number of people who get sentenced for crack
who are subject to the mandatory minimums, and their criminal
history category tends to be--the average is III as opposed to
II.
Chairman Biden. I see.
Judge Hinojosa. And so the safety valve provisions apply in
13.5 percent in the crack cases, but in about 44.5 percent of
the powder cases, people qualify for the safety valve
provisions. And so that may be some reason that there is more
relief for powder defendants because of their criminal history,
which, again, shows how criminal history plays a part with
regards to the sentences of crack defendants from the
standpoint of getting them higher sentences, and, therefore,
they would not go below the mandatory minimums.
Chairman Biden. And, Doctor, I warn you and implore you, I
plan on in the Subcommittee holding additional hearings on
treatment programs and what treatment regimes we should be
involved with. And I am going to ask you if you would be kind
enough to come back and talk to us. One of the things that I--I
was the author of the drug court legislation, and it seems to
me that it is not fully appreciated, the value of those courts
and the funding of them. So I just would--I give warning. I
will ask you to come back and testify before us.
The other thing I would like to suggest is that I may,
after we have a discussion over the next several weeks, I hope,
very well either--one, I would warn or even possibly reconvene
the panel to debate and discuss what may or may not be
something we can work out. In the meantime, let me turn to
staff and ask if there is anything glaring that we should have
asked that I did not. And I will invite my colleagues who are
not able to be here, and, again, I would ask your bosses to
submit just one or two questions if they want. I want to be
able to get these folks back, so I do not want to send them off
with too much homework here. But I do have three or four
questions that I would like to ask that are more in the weeds
than we have been discussing here and I do not think are going
to particularly enlighten this discussion. But I think we need
them for the record if you all are willing.
Would any of you like to make a closing comment or an
observation?
Dr. Volkow. Well, I want to first thank you for taking
leadership on this issue and for bringing up something that has
become one of our major initiatives, the notion of treatment on
those drug abusers that end up in the criminal justice system,
because probably it is one of the things that we can do that
can change both criminal behavior as well as substance abuse.
Chairman Biden. As you know, those six hundred and some
thousand people being released, a number of them are walking
out with a bus ticket and an addiction as they walk through the
gate. As they walk through the gate to freedom, they walk
through addicted. Addicted because of the availability of drugs
in the prison system, particularly in the State system. And we
are also going to be holding hearings on a piece of legislation
that Senator Specter and I have on the Second Chance Act. What
do we do about those folks? Because a significant number go
from that prison gate to underneath a bridge because there is
no housing, there is no employment, there is no--so we have to
be taking a look at this.
Yes, Mr. Felman?
Mr. Felman. I just wanted to make sure that this statistic
about releasing 25 percent of the Federal prison population is
properly understood. What we are talking about is 200,000
inmates, roughly, and we are talking about releasing 20,000 of
them. But we are not talking about releasing 20,000 of them
now. We are talking about releasing 2,000 or less now. So we
are talking about actually less than 1 percent of the prison
population that would be released at any given time.
Chairman Biden. I am glad you mentioned that. It is a valid
point.
Mr. Felman. So I just want to make sure that that was clear
and to reiterate the ABA's position that although, obviously,
there are differing positions about what the proper ratio
should be, we believe very firmly that there is no basis for a
ratio other than 1-to-1 because these are ultimately the same
drug. There are no other drugs that are punished based on their
mode of ingestion. To the extent that there is greater violence
associated with crack, the way the guidelines should address
that is to punish the people who are actually violent by
increasing those punishments. To build in a specific offense
characteristic into the base offense level would result in
double punishment.
All crack, we know by definition, was once powder. And so
it is a question of where along the chain of distribution you
want to really lower the hammer. And if we are hammering only
the people with the crack, what you are getting is the street
level dealer at the end of the distribution chain. And so there
is not any reason--just because crack is or is not more
addictive or is perceived to have these other issues, it all
comes from powder. And so we believe that fairness must not
only be actual, it must be perceived to be real, and that the
African-American community might continue to have a perception
of unfairness if there is anything other than 1-to-1 ratio.
Judge Walton. One other thing I want to emphasize, which is
what Judge Hinojosa indicated, and that is that when the
Sentencing Commission has taken similar action regarding other
substances, they have made it retroactive. And what would the
message be to minority communities who are most affected by
crack if we change it as it relates to crack but we did not do
it regarding other drugs. What is that saying, again, about the
fairness of the process?
Ms. Shappert. Senator, I would also point out that the
Department of Justice is always opposed to retroactivity,
whether it was for the LSD penalties or for marijuana.
But the more important point I would like to make is that
March 3rd the retroactivity goes into effect. We are on a very
short time window right now because if something is not done
before March 3rd, there will be ex post facto issues that will
come into play.
So I would urge your Committee to meet with the Department
of Justice as quickly as possible so we can start moving.
Chairman Biden. That is a valid point. I agree with that,
and we will. I must say in closing that beyond--and the point
Mr. Felman made and you made, Judge Walton, that perception
matters in terms of fairness of the criminal justice system,
and that is one of the reasons why I went to 1-to-1. You could
make, I think, an argument that there could be some slight
difference, but as a practical political matter--and I mean
that in the broadest sense--of the fair administration of
justice, I think it has reached the point where it is perceived
to be completely out of whack and viewed as targeted.
I have a son who is a Federal prosecutor. As a matter of
fact, I have a son who is the Attorney General of the State of
Delaware. And it is interesting to hear him talk about this
from the State level and to hear his concerns about the way in
which--he was in the Philadelphia office, a large Federal
office, and about how minimum mandatories were leveraged to do
a lot of things that did not sit well with him.
So there is a lot going on here, but the perception--I
guess the only point I am trying to make is perception does
matter in this case, and I look forward to working with the
Justice Department and my colleagues to see if we can get
something done quickly. And, Doctor, I look forward to having
you come back to speak about things that are near and dear to
my heart, particularly as it relates to prevention and
treatment.
Thank you all very, very much. We are adjourned.
[Whereupon, at 4:21 p.m., the Committee was adjourned.]
Questions and answers and submissions for the record
follow.]
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