Hearing Of The Subcommittee On Crime, Terrorism And Homeland Security Of The House Committee On The Judiciary - Unfairness In Federal Cocaine Sentencing: Is It Time To Crack The 100-To-1 Disparity?


Chaired By: Rep. Bobby Scott

Witnesses: Rep. Charles B. Rangel; Rep. Sheila Jackson Lee; Rep. Roscoe G. Bartlett; Rep. Maxine Waters; Lanny A. Breuer, Assistant Attorney General, Criminal Division, Department Of Justice; Ricardo H. Hinojosa, U.S. District Court Judge, Southern District Of Texas And Acting Chair, U.S. Sentencing Commission; Scott Patterson, District Attorney, Eastern Maryland, On Behalf Of Joseph I. Cassilly, President Of The National District Attorneys Association; Willie Mays Aikens, Kansas City, Missouri; Bob Bushman, Vice President, National Narcotics Officers Association Coalition; Veronica Coleman-Davis, President And Ceo, National Institute Of Law And Equity; Marc Mauer, Executive Director, The Sentencing Project

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REP. SCOTT: The subcommittee will come to order. I am pleased to welcome you today to the hearing before the Subcommittee on Crime, Terrorism and Homeland Security on the issue of Unfairness in the Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity? We'll be discussing and considering legislation pending before the House regarding the issue, including H.R. 1495, the Fairness in Cocaine Sentencing Act of 2009, H.R. 1466, the Major Drug Trafficking Prosecution Act of 2009, H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009, H.R. 2178, the Crack Cocaine Equitable Sentencing Act of 2009, H.R. 18, the Powder- Crack Cocaine Penalty Equalization Act of 2009.

The full committee of the Judiciary has scheduled a hearing at 12:00 today, so I want to alert the members and witnesses that we'll have to conclude the hearing in time for members for attend the noon hearing on the auto industry bankruptcies. Turning to today's hearing, it appears that many members of Congress as well as the general public agree that the current disparity in crack and powder penalties makes no sense. It's unfair and not justified, and it should be fixed. However, there's not yet a consensus on how to do it. After extensive study on the issue over the last 20 years, there appears to be no convincing scientific, medical, or public policy rationale to justify the current or any other disparity in penalties for the two forms of cocaine.

Scientific and medical research has found that crack and powder cocaine have essentially the same pharmacological and physiological effects on a person. The indicated method of how powder cocaine becomes crack cocaine is to cook the powder in the form to -- you cook the powder form with water and baking soda until it hardens into a rock-like formation. This diluted and cheaper form of powder cocaine is then generally ingested by users through smoking in a pipe. No other illegal drug has a severe penalty differential based on the differing formations of the drug, and certainly not for a lesser amount of the illegal substance, nor is the amount of the -- nor is the method of the ingesting of cocaine or any other drug a justification for a different penalty, whether it's smoked, snorted, injected, or otherwise consumed.

Moreover, neither is violence, nor any other associated history of use between the two forms of the drug seems to justify penalties. The Sentencing Commission reports that "97 percent of crack offenders do not use weapons compared to 99 percent of powder transactions do not use weapons." Such a small difference in the use of weapons and crack and powder could be addressed by sentences based on the particular case, nor whether crack or powder was used in the crime. The original basis for the penalty differential was certainly not based on science, evidence, or history, but on media hysteria and political bidding based on who could be the toughest on the crack epidemic than then believed to be sweeping America.

While there are no real differences between crack and powder cocaine, the distinction between the penalties of the two drugs have very severe consequences. More than 80 percent of the people convicted in federal court for crack offenses are African American. They are serving extremely long sentences while people have committed more serious drug offenses or more violent crimes serve significantly shorter sentences. Many people in African American communities have lost confidence in our criminal justice system because of unfair policies, such as the federal crack cocaine laws. So while some point to the fact that African American citizens, like all citizens, demand that illegal drug peddlers be removed from their communities, those same African Americans are strongly in favor of removing the disparate sentencing between crack and powder cocaine.

The Sentencing Commission has released four reports in the last 15 years on this subject, each time urging Congress to amend the cocaine sentencing laws. Unfortunately, those pleas have fallen onto deaf ears in Congress. The commission, as well as the Federal Judicial Conference, has urged Congress to remove the unfair mandatory minimum sentences. Each time they remind us that those mandatory minimums often violate common sense.

One example they (secretly ?) point to is the five-year mandatory minimum sentence for mere possession of five grams of crack. Crack is the only illegal substance for which there is a mandatory minimum sentence for mere possession. Mere possession of a (ton ?) more of any other illegal substance does not result in any mandatory minimum sentence. Only crack cocaine has a mandatory penalty for mere possession. Any other drug mandatory minimum requires criminal distribution.

The mandatory minimum sentences have been studies extensively and have been found to distort any rational sentencing process. They discriminate against minorities. They waste money compared to traditional sentencing approaches, and again, they often violate common sense. Under the law and general sentencing policy where a person deserves a sentence of a particular length, it can be given, so long as it's within the maximum sentence of the crime. However, with mandatory minimums, even when everyone agrees that the mandatory minimum is not appropriate based on the nature of the involvement of the crime and background of the offender, a judge has to impose the mandatory sentence anyway.

For these and other reasons, the Federal Judicial Conference has recommended on many occasions that Congress eliminate mandatory minimum sentences under all circumstances, and I can't think of a more fitting place to start such a process than to do away with the most notorious unfair mandatory sentences in the federal system; the crack cocaine penalty. My bill, H.R. 1459, the Fairness in Cocaine Sentencing Act of 2009, does just that. First, it eliminates the legal distinction between crack and powder by removing the definition of crack, thereby leaving cocaine to be penalized in any form at the penalty levels presently there for powder cocaine.

Second, the bill eliminates all mandatory minimum sentences cocaine offenses, handing back the sentencing decisions to the Sentencing Commission and judges, who are best equipped to determine an appropriate sentence based on the amounts and other factors taken into account with respect to other -- and other factors taken into account with other dangerous, illegal drugs. It will also allow judges to consider the role the defendant played in the crime and to avoid the so-called girlfriend problem, where someone has very little to do with the actual distribution of the drugs, but had some small role in the distribution network.

Unfortunately, with the present situation, that person would be held accountable for the entire wait of all of the drugs in the conspiracy, often resulting in decades of jail time for relatively minor criminal activity. The commission and our judges know how to do their jobs. We need to let them do it.

We would like for this hearing to continue the discussion about the best way to eliminate the unfair crack penalties and begin building a consensus on the way to solve the problem. I hope other members will co-sponsor my bill, H.R. 1459, and listening to the increased calls to end the decades of illegal discrimination. And if you don't want to co-sponsor that bill, at least co-sponsor some of the others so that we can come to a consensus on what to do.

It is my pleasure to recognize the esteemed ranking member of the subcommittee, my colleague, the gentleman from Texas, Judge Louie Gohmert.

REP. LOUIE GOHMERT (R-TX): Thank you, Chairman Scott. I'd like to also welcome the witnesses. Thank you for joining us today to discuss this important topic.

The Anti-Drug Abuse Act of 1986 established the sentencing levels for federal crack cocaine offenses. Congress created a 100 to 1 ratio basically for the quantities of powdered cocaine and crack cocaine that trigger a mandatory minimum penalty. The law imposes a mandatory ten-year term for offenses -- involve five kilograms of cocaine or 50 grams of crack, or a mandatory five-year term for offenses involving 500 grams of cocaine, or five grams of crack.

This sentencing disparity between powder and crack cocaine raises important public policy issues. One the one hand -- because African Americans apparently comprise the majority of crack cocaine offenders. The crack cocaine penalties have resulted in a disproportionate number of African Americans serving longer sentences than powdered cocaine offenders. On the other hand, many argue that more severe treatment of crack cocaine offenders is justified because of the high rate of firearms possession violence and recidivism associated with crack cocaine trafficking.

I hope today's hearing will shed light on these competing concerns. But many have expressed concerns that despite the intent to apply these penalties to mid-level and high-level traffickers, a large percentage of those subjected to the disparate crack penalties are, in fact, low-level street dealers. If this is the case, I think it demands further examination by this committee and Congress into the differences in which crack and powdered cocaine are trafficked. For instance, it's my understanding that whether it's sold on the street as powder or crack, most, if not all, cocaine enters the U.S. in the same form. At some point the process -- cocaine is cooked down into crack, but at what point? Do the mid-level traffickers do this, or is this done by the street dealers?

If we're truly serious about focusing federal drug penalties on those who traffic in crack and powdered cocaine, then we need to fully understand how these drugs are trafficked. Many also claim that our federal prisons are full of first time, non-violent drug offenders. As a former prosecutor and judge, I find it a little hard to believe the likelihood of a first time offender, even a drug offender being sentenced to federal prison, not simply jail or probation, is pretty slim. To be sure, in March, 2009, violent offenders housed in federal bureaus and prison facilities accounted for 53.2 percent of the total population of inmates, and in fiscal year 2008, over 77 percent of the 5,841 crack offenders sentenced under federal drug laws had some prior criminal history.

I believe we must have all the facts before we undertake a reexamination of federal drug sentencing laws. Congress must balanced the desire to reform the current sentencing disparity with the need to ensure that our federal drug laws maintain appropriate tough penalties for crack cocaine trafficking. One thing that I do believe with all my heart is that when these laws were passed, the proponents of these laws, like Chairman Rangel, believed it was the best thing. I've talked to my friend, Dan Lungren, who was here at the time. He said we were told if you don't pass these tougher sentences on crack cocaine, then it's a racist move. You don't care about the communities in black neighborhoods, because this is killing black youth. This crack is such a scourge.

I've got the congressional record remarks by Congressman Rangel. I've got the co-sponsorship of the bill. Seemed to be hardly supported by so many African American members of Congress. Some have said more recently, though, to have that kind of disparity, it has to be -- have been a racist law. Well, it wasn't a racist law. It was born out of the best intention on how to deal with this scourge, and apparently, it was not the best way to deal with it. And so now we want to make sure that we do it appropriately.

Of course, President Reagan said there have been some real champions in the battle to get this legislation through Congress, which was the Anti-Drug Abuse Act of 1986, congratulating Congressman Rangel for his work in getting that done. So obviously, this was not a racist bill when it was passed. It was done to try to deal with a difficult problem that I saw as a judge was adversely affecting our African American youth. So hopefully, we can work together to figure out the best way to address this problem so there isn't a disparity in treatment and we deal with the issues appropriately.

So Chairman Scott, I appreciate you calling this hearing. We do have a lot to figure out in what is the best way to approach this. I appreciate my friends being here to testify. Thank you for your interest.

REP. SCOTT: Thank you. And we have two panels of witnesses today to help us consider this important issue. Our first panel consists of four members of who are sponsoring a reform bill.

And before we get to our witnesses, we have the ranking member of the full committee with us today, the gentleman from Texas, Mr. Smith.

REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman. I won't unduly delay us, and I sneak in behind you, but thank you for the recognition.

In response to an epidemic of drug abuse associated with the trafficking of crack cocaine in the 1980s, a bipartisan majority in Congress approved a 100 to 1 ratio in penalties between crack and powdered cocaine. Faced with plummeting powder cocaine prices, drug dealers decided to convert the powder to crack, a smokeable form of cocaine. Crack was cheap, simple to produce, easy to use, and highly profitable. One dose of crack could be bought on the street for as little as $2.50. Never before had any form of cocaine with such a high purity been available at such low prices. Crack produced an instant high, and its users became addicted in a much shorter time than powder cocaine users.

Along with the spread of crack trafficking and crack addiction came crack-related violence. By the late 1980s, over 10,000 gang members were dealing drugs in nearly 50 cities across America. Crack- related murders in many large cities were skyrocketing. In New York City, crack use was tied to 32 percent of all homicides. Democratic- controlled Congress responded to this epidemic with adoption of federal drug sentencing policies, including the different penalties for selling crack and powder cocaine. And these drug sentencing policies were effective in reducing drug-related violence in the cities.

Today, crime rates, particularly violent crime rates, are at their lowest in 30 years, thanks to tough penalties for drug offenses and violent crimes. We know from years of criminal research that a relatively small number of criminals commit a disproportionately large number of crimes. Incarceration works because it incapacitates offenders, preventing them from committing even more crimes.

The solution to the sentencing disparity cannot be simply to eliminate the ratio. As Congress considers revising the sentencing disparity, we should not discount the severity of crack addiction, or ignore the differences between crack and powder cocaine trafficking, nor should we presume that the only solution to the disparity is to lower the crack penalties.

Cocaine is still one of the most heavily trafficked and dangerous drugs in America. Congress should also consider whether to increase the penalty for trafficking powder cocaine.

Sentencing Commission data showed that crack cocaine is associated with violence to a greater degree than most other controlled substances. Last year, 28 percent of all federal crack offenders possessed a weapon compared with 17 percent of powder cocaine offenders. Crack offenses are also more likely to involve offenders with a prior criminal history. 2008 -- the average criminal history category for crack cocaine offenders was category four, indicating a greater number of prior convictions for more severe offenses than powder cocaine offenders who averaged a category two criminal history.

Any sentencing reform undertaken by Congress to address the disparate impact of crack penalties must not result in a resurgence of crack dealing and crack abuse, similar to what we experienced in the 1980s. The American philosopher, George Santayana cautioned, "Those who cannot remember the past are condemned to repeat it."

Mr. Chairman, I look forward to the hearing and to hearing from our witnesses as well and yield back the balance of my time, and thank you for the recognition.

REP. SCOTT: Thank you, and we'd also like to recognize the presence of the gentleman from Illinois, Mr. Quigley, the gentleman from California, Mr. Lungren, and the gentleman from Texas, Mr. Poe.

Our first witness is the Honorable Charles Rangel. He is serving his 20th term as a representative from the 15th congressional district of New York. He is chairman of the Committee on Ways and Means and chairman of the Board of the Democratic Congressional Campaign Committee. He's a former prosecutor and the sponsor of H.R. 2178, the Crack Cocaine Equitable Sentencing Act of 2009.

A second witness will be the Honorable Sheila Jackson Lee, who represents the 18th district of Texas. She serves on the Judiciary Committee, including this subcommittee, the Foreign Affairs Committee, and the Homeland Security Committee. She is a former judge in Texas, and she is sponsoring H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009.

Our next witness is not with us yet, but he's expected -- Congressman Roscoe Bartlett of Maryland, who has introduced H.R. 18, the Powder-Crack Cocaine Penalty Equalization Act of 2009. He represents the 6th district of Maryland and is serving his ninth term in the House of Representatives. In this Congress, he serves as the ranking member of the Air and Land Forces Subcommittee of the House Armed Services and on the Small Business Committee. He is one of three scientists in Congress and is a senior member of the Science and Technology Committee.

Our last witness will be the young lady from Texas, Maxine Waters -- (audio break) -- as I was saying, the gentlelady from California -- (laughter) --

REP. : Thank you, Mr. Chairman.

REP. SCOTT: -- Maxine Waters, who is the lead sponsor of H.R. 1466, the Major Drug Trafficking Prosecution Act of 2009. She represents the 35th district of California, is a member of the House Committee on Financial Services, and chairs the Subcommittee on Housing and Community Opportunity. She is also a distinguished senior member of the Committee on the Judiciary and this subcommittee, as well as Subcommittee on Immigration, Border Security and Claims Committee.

We'll begin with the gentleman from New York, and you're -- everyone is aware of the lighting system, so we'll ask you to try to keep your remarks to five minutes.

Mr. Rangel.

REP. RANGEL: (Off mike) -- for this opportunity, judge, Mr. Smith, and members of the committee. This is a remarkable time in our nation's history, as we have a President that really doesn't believe that -- how things have acted in the past should guide our conduct in the future, whether we talk about education, climate control, health reform, and certainly, we have to review what we've done with our criminal justice system that allow us to believe that putting over two million people in jail is the answer to some of the social problems we face.

This is especially so when we find our great nation jailing more people than the whole world together have seen fit to jail in their countries. And since this is the Homeland Security Subcommittee, it seems that it would make a lot of sense to see -- how much does it cost to have these people locked up? What good purpose is being served, and what impact has it had in a positive way on our society? When you think about the $60 billion that it actually costs with taxpayers' money, you're including that they get health care. They don't produce anything. They don't contribute to our nation's security in any way, and indeed, they're not even available to redraft, and if we had a draft -- or to volunteer if they wanted to volunteer.

And so the whole system -- I would hope that this President and the attorney general would want to address. This is especially so if you take a look -- and to see who are these people that are being locked up? It's not enough to say that because the system has worked against people who did not get the benefit of a good education or come from communities with low or no incomes that it appears to be racist. These are the facts. You can go to the census, and if you do find out the areas of high unemployment, the areas of under served communities in terms of medicine where the schools have failed, you would see that the poor, white minorities -- the poor whites that have not had access to the tools that keep people away from crime and away from jail.

I had personal experience -- dropped out of high school when I was -- in 1948. It was strongly suggested to me that I join the Army or that the other consequences might cause me to be in a lot more troubles. So the Army has been an alternative to kids that had little or no education and couldn't get jobs. The whole idea of leaving a jail and putting your life together is almost unrealistic in most inner cities. I don't' know what happens in the rural areas, but saying that you have that conviction -- it doesn't really count to say I didn't know what was in the shoebox if someone told me just to the airport.

And so I think we have a great opportunity not to talk about how we got here, but this darn thing isn't working. It's not working for blacks. It's not working for minorities. It's not working for our country. And to take away the discretion of a judge -- we don't need judges if all we have to do is put something in a computer -- and you find this to be a fact. You give them five, ten, 15, 20 mandatory years. So I am so glad that this committee has seen fit once again to review what's going on.

But from a practical matter, it just seems to me that the whole system needs a review, and we have to see how we can make America healthier, more productive, better educated, and give an opportunity for everybody in this great country of ours to be able to produce. Locking up people in jail -- it doesn't make any monitory sense, doesn't make any social justice sense, and in terms of national security, they cannot produce for this country economically or defensively.

So I'm glad that we have a judge here who has this responsibility. You have to enforce the law. Get off the bench. These are things that Congress is responsible for. But as we now have been aggressive enough to take a look at everything during this fiscal crisis and see what works, what a great opportunity it would be. What a message to send to America and to the world that we have used this system and hasn't worked for us, and we've got to find a better system where people, one, are not going to have the temptation of going to jail in the first place, because you're not going to find any kid that is productive, that is proud of what he's doing, that has self-esteem, that wants to serve this country in the private of public sector that's even thinking about taking drugs.

If we can deal with that problem, then we won't have the other end of to worry about as to whether or not his sentence and the disparity should or should not exist. Keep our kids out of jail. Keep them productive, have self-esteem, and to be able to make a contribution to this great country. And I know this Congress is anxious and willing to make a contribution toward that effort.

Thank you.

REP. SCOTT: Thank you, Mr. Rangel.

Ms. Jackson Lee.

REP. JACKSON LEE: Thank you very much, Mr. Chairman, and it is a privilege to have the opportunity to share with the subcommittee on crime, and I thank you and Ranking Member Judge Gohmert and my colleagues here for giving us the opportunity. It's an added privilege to sit with the chairman of the Ways and Means Committee, but someone who has been a champion for the issues of drug sense, if you will, and adding his thoughts to this discussion -- I think enormously important.

I don't think anyone in this room, or maybe a large number of us, have been impacted by the horrific disparities, or the unfair disparities that we've come to understand on the issue of crack cocaine. It first came to my attention, judge, by a brother of a extended friend of the family, if you will, who in a non-violent way utilized drugs and is now serving a long, long sentence of 25 years, plus. I know our chairman worked very hard on the issue dealing first with his constituent, a student at Hampton University, and brought this issue to us and has championed the unfairness of this sentencing process.

We also have just made note of the fact that there's something better to incarcerating non-violent criminals who may have been caught up in the drug controversy or conflict, if you will, and I would like to offer these thoughts; that in the prisons of America today there are residents -- there are more prisoners in America's jails than residents in the states of Alaska, North Dakota and Wyoming combined. Over one million people have been warehoused for non-violent and often petty crimes. In many instances, the non-violent crimes involve drug use.

The European Union with a population of 370 million has one sixth the number of incarcerated persons as we do, and that includes violent and non-violent offenders. And this is one third the number of prisoners, which America, a country with 70 million people fewer, incarcerates for non-violent offenses. I think what we're doing today answers those concerns, and I'm delighted that included in the witness list we have the assistant attorney general of the Criminal Division, Lanny Breuer, and a dear, dear colleague and friend of this committee, the Honorable Ricardo Hinojosa, who has been a leader on these issues.

H.R. 265 was introduced in the 110th Congress, and it has bipartisan support. At that time it was co-sponsored by then Congressman Chris Shays. I've reintroduced it this year, and specifically, the legislation, the Drug Sentencing Reform and Cocaine Kingdom Trafficking Act of 2009, seeks to increase the amount of a controlled substance or mixture containing a cocaine base, i.e. crack cocaine, required for the imposition of a mandatory minimum prison sentence for crack cocaine trafficking to eliminate the sentencing disparity between crack and powder cocaine.

It also eliminates the five-year mandatory minimum prison term for first time possession of crack cocaine; very crucial in going right to the issue of giving out judges' discretion. It directs the U.S. Sentencing Commission to review and amend, if appropriate, its sentencing guidelines for trafficking in a controlled substance to reflect the use of a dangerous weapon or violence in such crimes, and the culpability and role of the defendant in such crime taking into account certain aggregating and mitigating factors. We know that we have to balance helping those who've made a mistake, helping those who've been non-violent, and as well recognizing that we're also in the midst, for those of us from the border -- in this whole question of drug cartels and bad actors that are really doing all of us harm.

It directs the attorney general to make grants to improve drug treatment to offenders in prisons, jails and juvenile facilities. I really believe this is a key element to this legislation. If the bad guys are bad guys, we want to make sure that we're addressing that concern, but as it relates to the non-violent offenders who have been caught up in this system, then we want to make sure they have a pathway out that they can survive.

It authorizes the attorney general to make grants and establish demonstration programs to reduce the use of alcohol and other drugs by substance abusers while incarcerated until the completion of parole or court supervision, increases monetary penalties for drug trafficking and for the importation of controlled substances and authorizes appropriations to the Department of Justice to do this.

It is important to note that the Obama administration joined U.S. district judge Reggie Walton in urging Congress to any racial disparity by equalizing prison sentences for dealing crack cocaine or crack versus powder cocaine. The assistant attorney general Lanny Breuer has reported as stating that "the administration believes Congress' goals should be to completely eliminate the disparity between the two forms of cocaine. There is a racial underlying issue here, but it is also a fairness issue, because under current law selling five grams of crack cocaine triggers the same five-year mandatory minimum sentence as selling 500 grams of powder cocaine."

And so it is important that we address the question of kingpins that this legislation does, but at the same time we eliminate the mandatory minimum sentencing laws that require harsh, automatic prison terms for those convicted of certain crimes; most often drug offenses. And Congress did that allegedly to apply to the drug conspiracies and certain gun offenses, but we have caught in this individuals who can be rehabilitated. This legislation, H.R. 265, will address that question and ensure that we have the opportunity to get the serious drug traffickers, but at the same time we will get those who are able to be rehabilitated.

Let me just say that this sentencing scheme has had a racially discriminatory impact. For example, in 2007, 82.7 percent of those sentenced federally for crack cocaine offenses were African Americans, despite the fact that only 18 percent of crack cocaine users in the U.S. are African Americans. In that instance, we are locking up a whole generation of individuals that can be rehabilitated. In most instances, those individuals were not violent.

So Mr. Chairman, I would ask that colleagues consider H.R. 265, and as well, I would indicate to them that we can do better than incarcerating everyone that we are involved in, and also, look forward to the addressing of the legislation I have on the early release, H.R. 61, so that we reform our criminal justice system.

Thank you very much.

REP. SCOTT: Thank you.

Mr. Bartlett.

REP. BARTLETT: (Off mike) -- I'm sorry -- lower income individuals who more often use crack was not justified by the effects of crack compared to powder cocaine, and I introduced a bill to address it. Since then, more evidence has accumulated to strengthen my conviction. This Congress -- I introduced H.R. 18, the Powder Crack Cocaine Penalty Equalization Act of 2009, to change the applicable amounts for power cocaine to those currently applicable to crack cocaine. I first introduced an identical bill in 2002. I'm here today to specifically welcome and support the most recent position of the Justice Department that the sentencing disparity should be reduced. I'm like to eliminate it.

I welcome this hearing. I hope that Congress will follow the recommendations of numerous authorities and improve reducing this ratio. In December of '07, the U.S. Sentencing Commission unanimously voted to reduce retroactively lengthy sentences meted out to thousands of people convicted of crack cocaine-related offenses over the past two decades. That same month the U.S. Supreme Court ruled that a federal judge hearing a crack cocaine case -- and I quote -- "may consider the disparity between the guideline's treatment of crack and powder offenses."

Both of these decisions reflect a growing concern that there should not be a 100 to 1 ratio in the amounts of powder cocaine and crack cocaine that trigger mandatory minimum sentences. We now have more and better information than we did in the past in order to assess the ratio and make adjustments. Any changes to the ratio must be based on empirical data. I am a scientist. I have a PHD in human physiology. With substantially more evidence that we have now that 100 to 1 unequal treatment is not justified, our laws should reflect the evidence of harm to society. If we don't adjust this ratio by reducing it, we would be clinging to fear instead of facts.

There should be bipartisan support for the adjustment in the ratio. The law places great value on maintaining precedent, but precedent based on fear should not be protected. I'm also an engineer.

As an engineer, I know that in order to make improvements, we should be in a constant state of reexamination. The past good faith reasons for the 100 to 1 disparity cannot be justified by the current evidence that has accumulated. Politics in the law must catch up to scientific evidence.

I noted in 2002 -- I first introduced -- that in 2002 I first introduced a bill to eliminate the disparity in sentencing between crack and powder cocaine with regard to trafficking, possession, importation, and exportation of such substances by changing the applicable amounts for powder cocaine to those currently applicable to crack cocaine. Several of my colleagues have introduced legislation to address the same issue to little effect.

However, we have recently been bestowed an opportunity. Last month, the Justice Department -- it was the first time -- called upon Congress to pass legislation that would eliminate the significant disparities for those convicted of crack and powder possession trafficking, importation and exportation. For too many years unjustified, disparate treatment of crack and powder cocaine has had a racially disproportionate and unjust impact upon our poor people and minority communities.

Congress should not support the status quo. I hope that my colleagues will not allow the pursuit of the perfect to prevent the potential adoption of a compromise that would reduce the unjustified current 100 to 1 disparate ratio in the treatment of crack compared to powder cocaine. I thank you for your efforts on behalf of the Congress and to advance the goal of justice in our society. I thank you for having me here today. (I'm going to ask you to leave -- ?) that I might go back to my subcommittee.

Thank you very much for having me.

REP. SCOTT: Thank you, and without objection, you'll be excused.

Ms. Waters.

REP. WATERS: Thank you very much. Good morning, Chairman Scott and members of the committee. I thank you for the opportunity to appear before you today to discuss mandatory minimum sentences for drug offenses and my proposal to eliminate drug sentencing disparities and to redirect federal prosecutorial resources toward major drug traffickers.

I first introduced this proposal ten years ago in the 106th Congress, and I've held town hall meetings at the CBC legislative weekends for about 12 years. I've also worked with Families Against Mandatory Minimums and the Open Society Institute, as represented by Ms. Taika Inquiti (ph), who is here today, and I've traveled the country sharing the stage with Kimba Smith, who became the poster child for what's wrong with these mandatory minimum sentences. And yet this is the first legislative hearing to consider the bill. And I thank you for that.

I sincerely hope that today's hearing is the start of legislation that will end sentencing disparities so that we begin to focus -- refocus federal resources to lock up the major drug traffickers. The current sentencing requirement failed to accomplish the legislative intent of the 1986 Anti-Drug Abuse Act and inadvertently wastes government resources on low-level drug offenders. Moreover, the act has had a disparate impact on the African American community, resulting in incarceration of a disproportionate number of African Americans, often for many, many years.

And on March 12th, 2009, I reintroduced the Major Drug Traffickers Prosecution Act, H.R. 1466, to end mandatory minimum sentences for drug offenses and refocus scarce federal resources to prosecute major drug kingpins. This bill will eliminate all mandatory minimum sentences for drug offenses, current federal prosecutions of low-level drug offenders, and give courts and judges greater discretion to place drug users on probation, or when appropriate, to suspend the sentence entirely. This bill restores discretion to judges and allows them to make individualized determinations that take into account a defendant's individual and unique circumstances instead of being forced to apply stringent sentencing requirements that don't necessarily fit the crime.

The Major Drug Traffickers Prosecution Act of 2009 goes to the root of the problem by creating a more just system that will apply penalties actually warranted by the crime instead of mandating sentences regardless of individual circumstances, as required under current mandatory minimum laws. It does so by eliminating the mandatory minimum sentences for simple possession, including the notorious five-year mandatory for possession of five grams of crack cocaine. Distribution, manufacturing, importation, and other drug- related offenses -- and allows the United States Sentencing Commission to set appropriate, proportionate sentences with respect to the nature and seriousness of the offense and the roll and background of the offender.

My bill also addresses other problems relating to the use of mandatory minimum sentences by curbing prosecutions of low-level drug offenders in federal court and by allowing federal prosecutors to focus on the major drug kingpins and other high-level offenders. Additionally, my bill would strip current statutory language that limits the court's ability to place a person on probation or suspend a sentence, thus allowing for discretion as appropriate under certain circumstances.

I would like to make sure the record today includes several documents that provide much greater detail than I can provide in this testimony today.

Mr. Chairman, with your permission, I am submitting for the record the letter from Judge Lake, the statement from U.S. district court Judge Castle, and the report by Families Against Mandatory Minimums correcting course lessons from the 1970 repeal of mandatory minimums.

In the Drug Abuse Act of 1986, Congress reinstated mandatory prison terms by defining the amounts of certain drugs they believed would be in the hands of major drug kingpins. Accordingly, individuals possessing a certain threshold amount of crack, pot, or cocaine face a mandatory minimum sentence. The original intent was to concentrate federal resources toward the prosecution of major sources responsible for trafficking drugs into the United States. The rationale for this policy decision was to disrupt the supply of drugs from their source and remove leaders of criminal enterprises from communities.

When effectively carried out, this approach was expected to reduce the availability of drugs on the streets and weaken some of the activities leading to increased drug use and drug-related crimes. Twenty years later the so-called War and Drugs has not been won, and mandatory drug sentences have utterly failed to achieve these congressional objectives. The mandatory minimum sentences are not stopping major drug traffickers. They are, however, resulting in the incarceration of thousands of low-level sellers and addicts. Moreover, these lengthened drug sentences have increased the need for more taxpayer dollars to build more prisons.

Finally, these sentences are disproportionately impacting African Americans while African Americans comprise only 12 percent of the U.S. population and 14 percent of drug users. We are 20 percent more likely to be sentenced to prison than white defendants. Much of this disparity is due to the severe penalties for crack cocaine.

In 2007 -- is my time up? It is. I will yield back my time and try and answer the questions, which may help complete the testimony.

Thank you very much, Mr. Chairman.

REP. SCOTT: Thank you, Ms. Waters. And on your bill dealing with mandatory minimums specifically, we're holding a hearing in July on mandatory minimums, and would appreciate your cooperation on that. (We're going to have -- ?) see what we can do about mandatory minimums generally, not just in drug offenses.

Thank you very much. I'd like to recognize the presence of the chairman of the committee, Mr. Conyers, and the gentleman from Tennessee, Mr. Cohen. Are there questions for the members? If not, we will --

REP. : (Off mike.)

REP. SCOTT: The gentleman from Texas.

REP. GOHMERT: I know we normally don't ask questions of members. I was just wanting to ask an opinion question of Chairman Rangel.

As I noted, this has been a passion of yours for decades now. As a judge, one of the things that sure appeared clear to me in Texas is we were not complying as we should have with the Texas Constitution, which required that we educate and rehabilitate people, at least try while they were in prison. I was pleased when Texas started building what we'll call substance abuse felony punishment facilities. What they were -- you were locked up, but the purpose was to deal with your addiction, and as the chairman knows and said, you know, 20 years ago, this is addictive stuff.

And so I'm told that of all the judges in our area, I sent many more people to the substance abuse facility than other judges. But it was a lockdown facility for ten months. If you didn't have your GED, you got it while you were there. The people in there had -- went through a 12-step program. If they had their GED or diploma from high school, then they could get college. We (recalled ?) some other training they could get back in high school, vocational training, carpentry training, things that they could be equipped with, where they could get a job when they got out.

It was about 50 percent successful as far as recidivism or getting back into cocaine. It was my experience that 30-day programs didn't work so well. I even had a couple come out -- they had met at the treatment facility and had planned all along on celebrating the night of graduation from the 30-day facility by using cocaine, which brought them back to me again when they got caught.

But anyway, what do you think of facilities like that, say a ten- month treatment program? You work on your education. You deal with 12-step program. You learn a trade, something you could get a job -- what is your opinion about facilities like that?

MR. RANGEL: Judge, when I was a federal prosecutor, I thought as a federal prosecutor. After we sent them to jail I just went off to the next case. Once they get to jail, what you're saying, judge, just makes common sense. Try to make certain that while you have that person, expose them to a different way of life and try to avoid them from getting their education from criminals, that that's all they know while they're in jail.

But right now at 79 years old, judge, I'm trying to think of -- why the hell did they go to jail in the first place? What were the conditions and surroundings that allowed them to believe that using and carrying cocaine was the only way that they could survive as young people in the community? And so there is no question that if someone is in intensive care, the treatment should be sensitive, since he is in intensive care. But as we do with medicine, I am more concerned with preventive than I am at what happens when they make that big mistake?

But you're 100 percent right. Without showing some compassion, some sensitivity, it's just a merry-go-round, and it's just a short amount of time where 70 percent of those that are in are going to return. So anything that you're trying to do in terms of stopping addiction, educating and preparing someone to deal with the real world has to be complimented, but there's no question in my mind that more often than not, they didn't have to go to jail in the first place.

REP. GOHMERT: But you said, you know, you wonder why we send them to jail. If I sent somebody to a substance abuse facility, the whole purpose -- it was part of -- it was a condition of probation, and the whole goal for sending them, even though they were locked up, was because of their addiction and to deal with that. And, you know, I had friends from Rotary. I've sent kids through Safe P, and they were furious at me and couldn't believe -- but the whole purpose was to get them -- cure them, or at least treat their addiction. So that was really the purpose. It wasn't to lock them up. It was to force them to deal with the --

MR. RANGEL: But once they got to you, the system is broken. You were courageous for taking those steps, because once you got them, you were limited in what you could do, and you chose to do what you thought was in the best interests of this human being. So I remember when I was prosecuting out of the southern district of New York to make certain they got long time. I would have the cases transferred to Texas. (Laughter.)

REP. GOHMERT: Well, I appreciate the chairman's time. Thank you.

REP. SCOTT: The gentleman from Michigan -- gentleman -- (off mike).

REP. TED POE (R-TX): Thank you, Mr. Chairman. Thank all of you for being here. After serving 22 years on the Criminal Court bench in Houston, hearing 25,000 felonies, later in my career, as Ms. Jackson Lee knows, I tried a lot of innovative things. I called it poetic justice, but be that as it may, my real question goes deeper than some of the things that you all have talked about, and I really want your opinion. One thing about our system, the state courts, as opposed to the federal system -- as you said, Mr. Chairman, federal judges really don't sentence folks. They just stick something in a computer and it comes out and tells them what they're supposed to do. No discretion. No common sense. Congress has set such tight reigns on sentencing that federal judges have no discretion. That's one reason I would never want to be a federal judge. Federal judges have told me many times that the hard, fast system promotes, you know, injustice each way, too high sentences, too low sentences.

So sentencing guidelines in general is what I'm -- my question is. Do you think Congress should revisit that whole concept of hard, fast sentencing guidelines, go to more discretion across the board, or just discretion on this area of crack and powder cocaine? That's my question to all three of you.

MR. RANGEL: Well, let me answer first, because of across the board -- you don't need judges if they don't have discretion. They have a human being in front of them. There are factors that you just can't get into statutes. We don't notice sensitivity as judges do. That's why we select them, hopefully, with their ability to understand each and every case where justice is what prevails and not a mandatory sentence. It's just been in these cases when you talk about 20 and 25 and 30 years it just shoots out at you.

But judge, if we've got to respect the judiciary, we should give them the discretion in all cases.

REP. POE: I agree with you. There's no substitute for a good judge. You can't -- the system will never work if we have bad judges on the bench, regardless of which system we use.

Ms. Jackson Lee.

REP. JACKSON LEE: Thank you, judge, and we are reminded certainly of those good works of poetic justice, so we thank you for that. And I must say provocative with some agreeing and not agreeing, but the discretion was there, and that's important. I do think we make steps, and I think the present structure of looking at at least equalizing the sentencing and giving discretion as it relates to crack cocaine and then building on that is very important. I think to add to the judge's discretion should be the tools. H.R.'s 265, of course, has the opportunity for grants to be rendered to ensure that there's some rehabilitation aspect to it, and this is the federal system.

You well know that we have been successful in -- however, the funding has been short -- on what we call a drug course in Texas, and I'd like to cite Catherine Griffin, who came out of the drug courts, rehabilitated herself, and has organized prostitutes who are drug addicted, trying to get them to reform their lives. So I do think there is a direct relationship to the discretion of a judge to help in the fairness of treatment of that particular offender that is before them, to give them a pathway out, or to be able to determine that they are such a bad actor at this point that they can't be rehabilitated.

I also think there's something valid as we go forward in this legislation about the question of retroactivity. And my legislation is now being reviewed to eliminate the language that might say that you couldn't address the question of those incarcerated presently. I believe we should go forward, but as well look at those who are non- violent. So that would be at the discretion of a judge as to whether or not a petition would come forward from a lawyer asking for their incarcerated client to be considered under these laws. Discretion of the judge I think is crucial.

REP. POE: Ms. Waters?

REP. WATERS: (Off mike.) I basically share that opinion. I cannot reconcile that we require judges to be qualified. We rate them. We have commissions and committees that review them. We basically try and determine whether or not they're fit, whether or not they're qualified to make decisions, and then to have a cookie cutter kind of regulation or operations that would dictate exactly what they're to do in sentencing just does not make good sense. It's a contradiction.

And so I generally disagree with mandatory sentencing. I'm particularly outraged by what has happened over the years with crack cocaine. I respect that there are those who say that they did it to help the black community, but it certainly has hurt the black community. What you have, particularly in the case of these young people -- like Kimba Smith, who was in college at Morgan State, come from a great family, mother was a teacher, father -- community leaders. And she just happened to be at the wrong place at the wrong time with the wrong individual. There was no reason this young lady should've been sentenced I think to over ten years for, you know, crack cocaine.

And so you have a lot of families that have been destroyed, communities that have been upset with this kind of sentencing. We have young people, yes, who've been caught with small amounts in their possession. They're not dope dealers. They're not kingpins. They're just stupid. They don't know any better, and they deserve to be reprimanded, to be punished in some way, but not this way.

And so I have been on this issue for so long and so many years and traveled around the country on it, because I think it's one of the issues that we as public policymakers really need to straighten out. So I thank you very much.

REP. POE: Thank you, Mr. Chairman. I yield back. Thanks.

REP. SCOTT: (Off mike.)

REP. : Thank you. I don't -- is this on? (Off mike) -- special thing we've got here. I guess it's on. If not, I can project pretty well. I don't want to put you all on the spot on kind of a separate issue, but it's related, and that is some of Chairman Conyers' most deified people, his heroes, and mine too -- jazz musicians in the '30s were known to smoke marijuana. And Harry Anslinger started a war on marijuana, which was not illegal up to that time, but it was known as something that was basically smoked by, or referenced to Hispanics and African Americans, and they made this war on marijuana. A lot of people have been arrested for marijuana and have a record that make it difficult for them to get jobs later on in life because they've got this scarlet letter, and we spend a lot of time in our federal enforcement working on marijuana laws rather than crack and cocaine and meth and heroin.

Yesterday, FBI Director Mueller first suggested people have died because of marijuana. He later retracted that and said no, he didn't know of anybody that's died because of smoking marijuana. But he didn't believe that we should change our policies because he thought it was a gateway drug. Do any of you feel that marijuana maybe should be less of a priority, considering that Mexico is producing so much and causing so many problems on our borders and in our communities, leaving scarlet letters on people for a drug that has become recognized as being less harmful than any of the other drugs that bother America?

MR. RANGEL: I don't remember the last time anyone was arrested in the city of New York for marijuana. I mean, smoking marijuana on the streets of Manhattan -- you know, and a cop may say don't do it on my beat, but nobody's getting arrested. There's no question that with the limited resources we have and the heavy strain that we put on law enforcement that we ought to decriminalize it. I would suggest that we should do things to discourage people from using cigarettes as well as marijuana, but the whole idea that we have a law in the book that we have to go to heavy research to see who's ever been arrested for it means that has to be reviewed and decriminalized.

MS. JACKSON LEE: I think the scarlet letter -- I agree with my good friend on this issue of resources, and I think the scarlet letter has hampered many young people, who now moving away from (using ?) -- who had an incident during college years, for example -- I've worked with college students who are forbidden from getting loans or other benefits because they've had a conviction or a citation or a misdemeanor of sorts of this whole question of marijuana.

We have larger fish to fry. I think there are issues dealing with addiction and someone who needs treatment, period, and over use of anything. I certainly think we have made mistakes in penalizing people for medicinal use. We saw some cases that were absolutely ludicrous, people who were raising it for those purposes, who've been directed to use it. So I think we should open up this whole can of worms, and I would hope that the Justice Department could work with this committee and work with members of Congress and other advocates as to how better to assess the use of marijuana.

MS. WATERS: Let me just say that I wish that we elected officials had the courage to deal with difficult issues rather than get whipped into line because of the necessity of reelection. In California, you know, we have medical marijuana. This attorney general -- one of the first things he's done is to back off the Feds from interfering in California state law where medical marijuana appears to be helping so many people with cancer and with glaucoma, in particular.

And so we need to view marijuana a lot differently. I'm glad that FBI Director Mueller backed off of saying marijuana had caused death, because no one can credibly represent that that is the case. We need to view marijuana the same way that we view cocaine and other drugs in this way. If, in fact, you are a drug dealer with huge amounts of drugs -- I don't care what they are -- you need to dealt with. If you're a kid on the street smoking marijuana and you happen to be a user, you should be dealt with a lot differently than someone who's out there selling large amounts of marijuana.

So I think we have to just gain the courage to say that we're not going to view marijuana in the same ways as we deal -- we view crack -- I mean, cocaine and other very, very hard drugs, and it's a difference between small amounts of possession and use and large amounts of possession for sale, period.

REP. : Mr. Chairman, thank you for the time. If I'm correct -- I know I'm about over -- I think if you have a conviction for marijuana possession, you can't get a scholarship now. And that's just unbelievable --

MS. WATERS: Stupid.

REP. : -- and it affects largely people of color disproportionately who have the convictions and then need the scholarships and don't get them, and what does that do? Put them in a spiral of failure. That needs to stop.

Thank you, Mr. Chairman.

REP. : (Off mike.)

REP. DAN LUNGREN (R-CA): Thank you very much, Mr. Chairman. I -- (off mike) -- here a lot here and -- (off mike) -- can't get in the full debate. Today's marijuana is not your father or your grandfather's marijuana if you look at in terms of the THC.

REP. : My father or grandfather didn't have marijuana. (Laughter.)

REP. LUNGREN: No, no, no, no. As the gentleman knows, that's an expression.

MS. WATERS: They had snuff.

REP. LUNGREN: The THC amount is much higher today, and even though in California we do have legalized medical marijuana, we have some of the worst growers in the entire country in devastating wilderness areas, natural parks, by-and-large controlled by foreign nationals, armed with assault weapons in some cases. It's a far more serious situation today than it was 10 years ago, 20 years ago, 30 years ago.

But I'd like to -- also, you bring up the Sentencing Commission. As one of the officer of the Sentencing Commission, I'll tell you the reason why we put it in was because of the disparity that existed, with respect to sentences given my federal judges across the way.

I had someone visit me in my office. His daughter had been sentenced to something on the order of 25 years by a judge in Texas, where similarly situated defendants were being sentenced to one, two or three years in other federal courts. And this disparity we saw by federal judges across the country is what surprised the Sentencing Commission.

It's hard to establish guidelines within which sentences could be made, but did allow and still allows federal judges to go above or below the guidelines in their sentence for specific reasons, as long as they can articulate it on the record. And both sides are able to appeal, both to go above or below.

But what I'd like to ask with all respect, Chairman Rangel, because you and I were here. Via chairman of this like committee on drug abuse, I was the ranking Republican on the Crime Subcommittee. I was the chairman of the Republican task force on crime when we -- (off mike) -- 1986.

I recall the subcommittee meeting vividly. Bill Hughes, our colleague from New Hampshire -- I mean, from New Jersey, our subcommittee meeting as we were marking this bill -- (off mike) -- said the devastation being done in the African-American communities in New Jersey and the surrounding areas, like, crack cocaine is terrible, and we have to do something about it.

And if I'm not mistaken, he at that time, offered an amendment to increase the penalty. I recall it being supported by you and by others. I'm not, I'm not trying to criticize you. What I'm asking is this question. I bought that argument at that time. I bought the argument presented by people representing largely African-American communities. He said to me, we are being devastated by this. You have to do something about it. The crack cocaine epidemic is causing tremendous violence in our community. So we passed it.

I guess my question to you is this -- and I'm always willing to take a look at something we did before. That's the difference between us and lifetime federal judges. (Laughs.) We can be knocked out. They can't. That's one thing we ought to keep in mind.

And I guess my question is: Were we wrong entirely or was it that our application of the law has been wrong. Did we incorrectly diagnose the problem? And has there been no benefit to this approach? I mean, we've talked about some of the probably unintended consequences on young people getting caught. But was there no benefit given? Was there no relief given to these communities from the violent? And I guess that my -- were they wrong at that time or did facts overwhelm us or did we go too far, even though we should have gone some way?

REP. RANGEL: I think some of us, Congressman, did the best with the facts that we had to work with. It occurred to me as a prosecutor that if we had an ingredient coming into a community that didn't grow or didn't manufacture it, and people took risks in bringing it into that community. But if you said, "You do this, that the danger that you'd be going away to jail for a long time," that it would be such a threat, such a deterrent, that people would say, "It's just not worth going into this black community with crack. It's just too much time involved. And if I have to be involved in the illegal trafficking of drugs, I'll leave this one alone."

It didn't turn out that way at all. Because within that community, once you got a piece of this, then you became a person that -- good judgment had nothing to do with your need to get this drug, because it just controlled the mind and destroyed judgment.

Another big problem that we had is that -- and the Chairman remarked about this, we had young girls locked up in (Laughs) jail because their boyfriend did a drug deal, and sent them to the Caribbean for a vacation. But while they're there, "Pick up this suitcase. One of my buddies, they'll give you." The number of carriers that just did not know what they were doing, and perhaps the judges found out they should have known.

But they had such a small role to play in this big massive drug trafficking that we had in the world. And so a lot of us still have a problem, Congressman, a very serious problem, and that is why do the areas with the highest poverty, with the highest high school dropout, who do not -- don't grow marijuana, don't grow cocoa leaves, have nothing to do with, with opium growing, how do they become the centers? And that's where we make mistakes in saying that we're going to jail you if you're the victim.

And so deterrents, you would hope would work. It just didn't work. When the mind is gone, judgment is gone. And you over penalize the victim, and anyone surrounding in that, because there are just so many people that are stupid, but innocent of a crime. They just caught in that web. And most of the cases -- when I was talking about the judges in Texas, they -- once they got that stuff over there to El Paso, the carriers were taken to New York. We had options as to where to prosecute in El Paso. They get five, ten, fifteen years or in the southern district where they must just dismiss it.

So it was poor judgment. Very, very poor judgment.

REP. WATERS: If I may, Mr. Lungren, I'd just like to say this before I leave. My problem with the way this has been approached is this. We know that tons of cocaine was coming out of Nicaragua during the time of the confrontation between the Sandinistas and the Contras. It's been documented. We also know that drug dealers, such as Danilo Blandon, who brought cocaine into Los Angeles, but was cooked into crack by Ricky Ross, who's getting out of prison -- just got out of prison now, who told us where it came from.

And we also know that Danilo Blandon was on the payroll, first of the DA, and then at one point on the CIA. We never delved into why and how all of these tons of cocaine was coming into, first Los Angeles, cooked into crack cocaine and spread out across this country. It's an issue that we really didn't want to delve in. Because we knew -- many of us knew or believed that if we got deeply involved, we'll understand that there was a blind eye turned. Why much of this cocaine got into our country.

I spent two years investigating. I went to Nicaragua. I talked with drug dealers, and I worked with Ricky Ross. And I understand that, yes, there was devastation in the African-American community. Yes, it was flowing freely, cocaine that was turned into crack that made it cheaper and easier for people to access.

But we never talked about the root causes and how it got there, and who was responsible for it. And that's my problem with the victims of this crack cocaine, serving all of this time, and the origin of the cocaine was never really dealt with.

REP. LEE: Very quickly, let me just add, Mr. Lungren, to say to you that yes, I believe we were wrong. We were good in our intentions, but I think the evidence shows where 87 percent of those being prosecuted and convicted now for using crack cocaine are African-Americans. I think the other side of the coin is that we didn't distinguish, as you've heard all of our testimony here between Kingpin's violent orchestrators of the market place versus the casual user, the young user, the silly user.

We have an opportunity to do that. Give the discretion back to the Federal courts with guidelines. I think guidelines are important. That helps to at least have an oversight over large sweeps of distinctions between low sentencing for the same crime and high. Guidelines are important.

But I think that what we have found out is that with the disparities are so glaring, and then on the backend, we didn't focus on the rehabilitation, whether it's in a state prison system or whether it's when someone gets out. And so we just had people recycle, because there was nothing else to do. We've learned our lesson, and I think it's now time to change, and change as quickly as we can.

REP. SCOTT: Thank you. The gentleman's time has expired.

Gentleman from Illinois, have questions?

REP. MIKE QUIGLEY (D-IL): Thank you, Mr. Chairman. Really just two quick thoughts. The first, in your experience, are any of the states staring to address this disparity in their sentencing laws that you're aware of?

REP. RANGEL: (Off mike) -- and sentencing. And the disparity took a long time, but they just did it last month.

REP. QUIGLEY: If anyone else knows. The other issue is, I probably did 200 trials on the other side as a criminal defense attorney in Cook County in the '90s. And my first venture is where a room is probably twice this size filled with people in preliminary hearings. And the first thing that strikes you is -- (off mike) -- and I said to a sheriff there, doesn't anyone from my neighborhood get arrested for cocaine.

Is there something about the disparity and how investigations or arrests take place that also magnifies this? And the fact that how crack is purchased versus perhaps powder in, in the white community, that also enhances disparity and share numbers of prosecutions?

REP. LEE: And let me just quickly say, you've hit the nail on the head. First of all, coming from Chicago, a very large city, Houston, the fourth largest city in the nation, the whole criminal justice system excuse itself to inner-city neighborhoods. So from the top to the bottom, from the number of police officers on the street, the conspicuousness of how crack cocaine is sold to the purchaser, if you will, there's nothing that is in inconspicuous about side corner conversation and passing of, of the bag. A lot of that is done very conspicuously.

City counsels make determinations. County governments make determination. Police chiefs make the determination, let's go to this area. When you target the area with intense utilization, police officers, arrests are made, it's almost like a revolving door. Prosecutors load up on Friday night, and then Monday morning they're in court where you happen to be, and you see the large load.

Cocaine has usually been the silk stock in drug. And, in fact, you probably are least likely to see the exchange. Where you can visibly be in some neighborhoods in America and see the exchange. And it was, it was treated like that. So you'd be in a penthouse versus somewhere else. The resources were all focused on crack cocaine.

It was easy to run three people through state courts. And certainly it was easier to run them through federal courts. You also have the conspiracy element, as well. Which was what generated the sentence for the person that I know, the brother of a friend, who's been for 25 years. Allegedly that person was in conspiracy.

So I think it was clearly blatant, if I might say, inequitable treatment, maybe even discrimination, because of how you got it and who you got it from and where you were seen getting it.

REP. WATERS: That basically describes what has happened with the arrests and convictions of these young black men, for the most part as you have just eluded to. I think there were resources directed toward African-American in inner-city communities that identified and picked up and arrested young people because of the, the way that crack cocaine was distributed. There were gangs that got involved with the crack cocaine.

And, again, it was quite obvious that something was going on, on the street. Unemployed youth, this became an under -- a subculture of young people getting involved with tiny amounts, where they would get a few dollars, but they were not involved for any length of time. And it may very, you know, happened to -- be able to access a small amount for this day or this week. And then, of course, the addiction that came along with it.

And so what you find basically, for those of you who have spent time in the criminal justice system, you know and you understand very well that poor people who don't have representation, who depend basically on defendants who don't -- are going to have huge caseloads, don't get the defense. You also know that often times more resources are directed toward arresting in these communities than in richer communities.

And so it's a problem in the criminal justice system, period. Where if you happen to be poor, if you happen to be black or Latino or nine times out of ten, if you're a male, in particular, before you're 21 years old, you're going to have an encounter with the police, because the police are targeted -- this is what they look for. This is what they do.

If you happen to be in Beverly Hills, in my state, you may be involved as a teenager in high schools, where young people are trading drugs and giving it to each other, but you're not going to get busted. It just happens that way.

REP. QUIGLEY: Thank you members. I yield back, Mr. Chairman.

REP. SCOTT: Thank you. And I thank our witnesses for being with us today.

Our second panel will come forward. The panel begins -- the first witness on the second panel will be the Assistant Attorney General for the United States, recently confirmed, Lanny Breuer. He began his career as the Assistant District Attorney in Manhattan, and continued his career in private practice, specializing in white-collar criminal and complex civil litigation and congressional investigation.

From 1997 to 1999, he served as a special -- served as Special Counsel to President Clinton. And received his BA from Columbia University, his J.D. from Columbia Law School.

If people could move quietly, we'd appreciate it.

Our second witness is Judge Ricardo Hinojosa, who has served on the U.S. Sentencing Commission since 2003. He was appointed Chair in 2004. He is the U.S. District Court Judge in the Southern District of Texas. Before joining the Judiciary, he was an adjunct professor at the University of Texas School of Law and a partner of the law firm in Texas. He graduated Pi Beta Kappa with the honors from the University of Texas in Austin, and earned his law degree from Harvard Law School.

Third witness is Scott Patterson, who is State's Attorney for Calvert County Maryland, who is testifying on behalf of Joseph Cassilly, the President of the National District Attorneys Association. He's been State's Attorney for Calvert County Maryland for over 20 years, and serves as the Maryland Director for the National District Attorneys Associations Board of Directors. He graduated from the University of North Carolina, Chapel Hill with a degree in Political Science and Washington Lee University School of Law.

Our fourth witness is Willie Mays Aikens. He's a former Major League baseball player, who played first base for the California Angels, Kansas City Royals and Toronto Blue Jays from 1977 to 1984. In 1980, Mr. Aikens hit two home runs in the same game twice during the same World Series, a record that still stands. In 1994, he was sentenced to over 20 years in prison as a result of a federal crack cocaine, federal crack cocaine charges. He spent 14 years in Federal prison, and was released in June of 2008. He is currently living and working in Kansas City, and has come here today to share his story with us.

Our fifth witness is Bob Bushman, Vice President of the National Narcotics Officers Association Coalition. He is the Statewide, he is the Statewide Gang and Drug Taskforce Coordinator at the Minnesota Department of Public Safety. He began his law enforcement career 30 years ago as a Minnesota State Trooper. He has a Bachelors degree from St. Cloud State University, and is a graduate of the DEA Drug Unit Commanders Academy, as well as the FBI National Academy.

Our next witness is Veronica Coleman-Davis, President and CEO of the National Institute of Law and Equity. And she'll be introduced by the gentlemen from Tennessee.

REP. COHEN: Thank you, Mr. Chairman. We are responsible for Texas, but we're not from there. (Laughter.)

Ms. Veronica Coleman-Davis is a former United States Attorney, having served our Western District of Tennessee from 1993 to 2001. And she and 12 former U.S. attorneys have formed a group called NILE, a river which Memphis, Egypt sits on. We sit on the Mississippi, of course. And the NILE is an acronym for National Institute for Law and Equity, which is based in Memphis, and is looking into long-term solutions to racial disparities that exist in the criminal justice system.

And as such has been the inspiration for the bill that I filed and Senator Cardin on Justice Integrity Act to try to set up a system within the Justice Department to look at 10 jurisdictions and see if there are, and what the racial disparities are in prosecution sentencing and all type of issues in criminal justice, not just sentencing.

She attended the University of Howard College, here at Howard University here in Washington, but beyond that, she attended the Memphis State University School of Law when I attended the Memphis State University School of Law. She's a good friend, and a proud respected member of the community and Shelby County and Memphis.

We're pleased that she's here. A former public defender, a public prosecutor, a juvenile court referee, and of course, U.S. Attorney. Thank you.

REP. SCOTT: Thank you. And our last witness will be Mr. Mark Mauer, Executive Director of The Sentencing Project. He's one of the country's leading experts on sentencing policy, race in the criminal justice system. He has directed programs and criminal justice policy for over 30 years, and is the author of some of the most widely cited reports and publications in the field, including Young Black Men in the Criminal Justice System, and Americans Behind Bars Series: Comparing International Rates of Incarceration. Is a graduate of Stony Brook University, and earned his Masters of Social Work at the University of Michigan.

Now, each of our witnesses' written statements will be entered into the record in its entirety. I'd ask each witness to summarize their testimony in five minutes or less. And to help you stay within that time, there's a lighting device that's in front of you, which will turn from green to yellow when you have one minute left, and will turn to red when the five minutes is up.

And I hope you can stay within that time better than the members did. (Laughter.) Or at least try.

We have been called for at least one vote, so let's see if we can get Mr. Breuer's testimony in before we leave for the vote.

Mr. Breuer.

MR. BREUER: (Off mike) -- of the existing disparity in federal cocaine sentencing policy. The Obama administration firmly believes that our criminal and sentencing laws must be tough, predictable, fair and not result in unwarranted racial and ethnic disparities.

Criminal and sentencing laws must provide practical, effective tools for federal, state and local law enforcement, prosecutors and judges, to hold criminals accountable and deter crime.

Ensuring fairness in the criminal justice system is also especially important. Public trust and confidence are essential elements of an effective criminal system. Our laws and their enforcement must not only be fair, but they must also be perceived as fair. The perception of unfairness undermines governmental authority in the criminal justice process.

It aids victims and witnesses of crimes to think twice before cooperating with law enforcement. Attempts jurors to ignore law and facts when judging a criminal case, and draws the public into questioning the motives of government officials. Changing these perceptions will strengthen law enforcement.

And there is no better opportunity to address these perceptions than through a thorough examination of federal cocaine sentencing policy. Cocaine and other illegal drugs post a serious risk to the health and safety of Americans. The administration is committed to rooting out drug trafficking organizations and gangs that manufacture and traffic these drugs.

The 1980s, crack cocaine was the newest form of cocaine to hit American streets. In 1986, in the midst of this exploding epidemic, Congress passed the Anti-Drug Abuse Act, which set the current federal penalty structure for crack and powder cocaine trafficking, punishing the crack form of cocaine far more severely than the powder cocaine.

Since that time in four separate reports dating back to 1995, the Sentencing Commission is documented in great detail all of the science of crack and powder cocaine, as well as the legislative and law enforcement response to cocaine trafficking.

I will not review all of that information here, other than to note the mounting evidence documented by the commission that the current sentencing policy disparity is difficult to justify based on the facts and science. Including evidence that crack is not inherently more addictive substance than powder cocaine. Moreover the Sentencing Commission has shown that the quantity-based cocaine sentencing scheme often punishes low-level crack offenders far more harshly than similar situated powder cocaine offenders.

Additionally, commission data confirmed that in 2008, 80 percent of individuals convicted of federal crack cocaine offenses were African-American, while just 10 percent were white. The impact of these losses fueled the belief across the country that federal cocaine laws are unjust.

Based in significant part on the thorough and commendable work of the commission, a consensus is now developed that federal cocaine sentencing laws should be reassessed. And though it is set forth more fully in my written testimony, many have questioned whether the policy goals that Congress set out to accomplish have been achieved.

In the administration's view, based on all that we now know, as well as the need to ensure fundamental fairness in our sentencing law, a change in policy is needed. We think this change should be addressed in this Congress, and that Congress' objective should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.

The administration, of course, is aware that there are some who will disagree. The supporters of the current cocaine penalty structure believe that the disparity is justified because it accounts for the greater degree of violence in weapons involvement associated with some crack offenses.

The administration shares these concerns about violence and guns used to commit drug offenses and other crimes associated with such offenses. Violence associated with any offense is a serious crime and must be punished. And we think the best way to address drug-related violence is to ensure that the most severe sentences are meted out to those who commit violent offenses.

However, increased penalties for this conduct should generally be imposed on a case-by-case basis, not on a class of offenders. The majority of them do not use any violence or possess a weapon. We support sentencing enhancements for those, for example, who use weapons in drug trafficking crimes. But we cannot ignore the mounting evidence documented by the commission that the current cocaine sentencing disparity is difficult to justify.

At bottom, the administration believes that current federal cocaine sentencing structure fails to appropriately reflect the differences and similarities between crack and powder cocaine. Offenses involved each form of the drug, and the goal of sentencing serious and major traffickers to significant person sentences.

We also believe the structure is especially problematic, because the growing number of our citizens view it as fundamentally unfair. Accordingly, as I mentioned a moment ago, the administration believes Congress' goal should be to completely eliminate the disparity.

Last month the Attorney General asked the Deputy Attorney General to form and chair a working group to examine federal sentencing and corrections policy. This group's comprehensive review will include possible recommendations for the President and Congress for new sentencing legislation affecting the structure of federal sentencing.

In addition to studying issues related to prisoner re-entry, department policies on charging and sentencing, and other sentencing- related topics, the group will focus on formulating a new federal cocaine sentencing policy. One that aims to completely eliminate the sentencing disparity between crack and powder cocaine, but also to fully account for violence, chronic offenders, weapons possession, and other aggravating factors associated in individual cases, with both crack and powder trafficking.

We look forward to working closely with Congress with this committee and the Sentencing Commission on this important policy issue in finding a workable solution. As I stated at the outset, this Administration believes our criminal laws should be tough, smart, fair and perceived as such by the American public. But at the same time, promote public trust and confidence in the fairness of our criminal justice system.

Ultimately, we all share the same goals of ensuring that the public is kept safe, reducing crime and minimizing the wide ranging negative affects of illegal drugs.

Mr. Chairman, I know I went a little long, but thank you for this opportunity to share the administration's views. And I welcome your questions.

REP. SCOTT: Well, thank you very much, and we look forward to that report. We have three votes pending on the floor, and we'll return and it will be probably about 20, but shortly before noon before we can get back.


REP. SCOTT: (Sounds gavel.) We just got a message from the ranking member asking us to continue. I understand the delay has caused some scheduling problems for several of our witnesses, so we'll begin with Judge Hinojosa and make sure that Mr. Aikens can testify and be out of here before 1:30. Does everyone understand? Mr. Aikens? Okay.

Judge Hinojosa.


And Chairman Scott, I appreciate the opportunity to appear before you on behalf of the United States Sentencing Commission to discuss federal cocaine sentencing policy. As you all are aware, the commission has considered cocaine sentencing issues for many years, and has worked closely with Congress to address the disparity that exists between the penalties for crack cocaine and powder cocaine offenses. In 2007, the commission promulgated a crack cocaine guideline amendment to address some of this disparity, but was and continues to be of the view that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties, and therefore must be legislated by Congress.

The commission urges Congress to take legislative action on this important issue. In the interest of time, I will briefly cover some of the information submitted in my written statement. From the information sent to the commission in fiscal year 2008, we have found that there were 5,913 crack cocaine defendants sentenced in that fiscal year, about 24 percent of the drug trafficking cases, and 5,769 powder cocaine defendants were sentenced in that fiscal year, about 23 percent of the drug trafficking cases. So combined, the cocaine sentences were about 47 percent of the drug trafficking cases sentenced in fiscal year 2008.

African-Americans continue to comprise the substantial majority of federal crack cocaine offenders, about 80.6 percent in fiscal year 2008, while Hispanics comprise the majority of powder cocaine offenders, approximately 52.5 percent of the defendants. Federal crack cocaine offenders consistently have received longer average sentences than powder cocaine offenders. In fiscal year 2008, the average sentence for crack cocaine offenders was 115 months, compared to 91 months for power cocaine offenders, a difference of 24 months, or 26.4 percent. Most of the difference is due to the statutory mandatory minimum penalties.

In fiscal year 2008, crack cocaine and powder cocaine offenders were sentenced, but were convicted under mandatory minimums at virtually equal rates, about 80 percent of the defendants, even though the median drug weight for powder cocaine offenses was 7,000 grams, compared to 52 grams for crack cocaine offenses. In fiscal year 2008, only 14.3 percent of crack cocaine offenders, compared to 42.4 percent of powder cocaine offenders, received relief from the statutory mandatory minimum penalties, pursuant to statutory and guideline safety valve provisions. This is partly attributable to differences in criminal history and weapon involvement.

In fiscal year 2008, 28.1 percent of crack cocaine offenders compared to 16.9 percent of powder cocaine offenders either received the guideline weapon enhancement or were convicted pursuant to Title 18, U.S. Code Section 924(c). Crack cocaine offenders generally have more extensive criminal history, and 77.8 percent of crack cocaine offenders were ineligible for the safety valve because they were in a criminal history category, higher than criminal history category one, compared to 40 percent of powder cocaine offenders.

Also, with regards to the mitigating role adjustment that is made by the courts, it was approximately 5.1 percent for crack cocaine offenders as opposed to 20 percent for powder cocaine offenders. The sentencing disparity, as has already been noted, has been the subject of recent Supreme Court case law. In Kimbrough vs. United States, the court relied on the commission's conclusion that the disparity between the treatment of crack cocaine and powder cocaine offenses fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Anti-Drug Abuse Act, in holding that a sentencing court may consider the disparity when determining an appropriate sentence in a crack cocaine case.

In the Speers case, the court held that under Kimbrough, a sentencing court may vary from the crack cocaine guidelines based on policy disagreements and may substitute its own drug quantity ratio. With regards to the operation of the commission's retroactive application of the 2007 crack cocaine amendment, in the one year since the amendment went into effect and was made retroactive, the commission has received documentation on approximately 19,239 sentence reduction motions. In those, 13,408, approximately 69.6 percent of them, were granted, and the average reduction was 24 months, from 140 months to 116 months; 5,831, about 30.3 percent, have been denied. Of these, some were denied because the conviction did not involve crack cocaine or the defendant was otherwise not eligible, most often because a statutory mandatory minimum applied or a career offender, or armed committer or offender status, and/or were denied on the merits for other reasons.

In closing, I must say that the commission continues to believe that there is no justification for the current statutory penalty scheme for powder cocaine and crack cocaine offenses, and is of the view that any comprehensive solution requires revision of the current statutory penalties by Congress. The commission remains committed to its 2002 recommendation that statutory drug quantity ratio should be no greater than 20:1 and recommends to Congress that Congress increase the five year and ten year statutory mandatory minimum threshold quantities for crack cocaine offenses, repeal the mandatory minimum penalty for simple possession of crack cocaine and reject addressing the 100:1 drug quantity ratio, by decreasing the five year and ten year mandatory minimum threshold quantities for powder cocaine offenses.

The commission believes that the federal sentencing guidelines continue to provide the best mechanism for achieving all of the principles of the sentencing reform act of 1984, and recommends the Congressional concerns about the harms associated with crack cocaine are best captured through the sentencing guidelines system. The bipartisan U.S. Sentencing Commission continues to offer its help, support and services to all the Congress, the executive and judicial branches, and anyone else interested on the subject, anyone who is interested in this important issue, and would request that any Congressional action include emergency amendment authority.

On behalf of the commission, I again thank you, Chairman Scott, and members of the committee for holding this very important hearing on this subject that the commission obviously feels is important, and has felt so for many years. Thank you, sir.

REP. SCOTT: Thank you.

JUDGE HINOJOSA: And I did go over my time, and I guess life tenure doesn't help here, and I'm sorry. (Laughter.)

REP. SCOTT: Mr. Patterson.

MR. PATTERSON: Thank you, sir. Mr. Chairman and members of the committee.

My name is Scott Patterson. I'm here on behalf of Joe Cassilly, who is the president of the National District Attorneys' Association, who regrettably could not be here, but has appeared before. He could not because of a conflict in his schedule.

I'm here in two capacities. One, as an elected prosecutor from my home state of Maryland, but also as a member of the Board of Directors of the National District Attorneys' Association, and filling in and presenting our position in that regard. The National District Attorneys' Association is the oldest and largest organization representing state and local prosecutors.

We, and to Mr. Cassilly's comments, which I'm only going to briefly touch upon in the interest of time, we attached a resolution which was adopted by the National District Attorneys' Association, back last summer, I believe, regarding the issue that is before this committee and the Congress concerning the sentencing disparity between crack and powder cocaine.

The NDAA agrees that some adjustment is warranted, not just that the 100:1 disparity cannot be justified by empirical data. We also believe that the proposed 1:1 realignment of penalties for crack versus powder cocaine also lacks any empirical or clinical evidence. A random adjustment, will also, we believe, have severe negative consequences as to the effects of the nation's prosecutors to remove the destructive effects of crack and violence from our communities.

As has Mr. Cassilly, I've been a prosecutor for over 30 years, almost 33 years now. It has been my practice, both in a small jurisdiction that I'm currently the elected prosecutor in, and large jurisdictions that I have served as an assistant in, that our work has been active and successful, both in task force within Maryland, and then also cooperating with federal agencies and prosecutors from the office of the United States Attorney for the State of Maryland. We believe that this is a problem that affects not only the federal jurisdiction and as the NDAA, we really do not represent federal prosecutors, but as the spill over to local prosecutors, depending on what happens with this legislation. We believe this is an area that must be addressed and we are glad that it is being addressed and looked at to handle the sentencing disparity.

We do cooperate and we do submit cases to federal prosecutors to help with, because of the sentencing guidelines. We understand that, in the State of Maryland at least, my own experience has been that simple possessors of quantities of even five grams of crack cocaine don't get the type of sentences perhaps that they receive in the federal system. A lot of the emphasis in the State of Maryland is now on emphasizing treatment as well as punishment for offenders, that the major issues concerning traffickers and the violence in the communities that occurs as a result of the trafficking in crack cocaine is going to be an ongoing problem, no matter what the penalty aspects are of any legislation that comes out of the United States Congress concerning the disparity and/or federal mandatory sentences.

The statement issued by Mr. Cassilly notes that, on the issue of the racial disparity, if you will, concerning those that are prosecuted and sentenced under the drug laws, also is as a result of the effect on their communities and the crime and violence that are occurring in those neighborhoods of the minorities, and how they have come forth and asked for the help and asked for the strong prosecutions, so that they can have safe neighborhoods. At any rate, I commend the committee and the Congress for dealing with this issue and I direct the details of Mr. Cassilly's position to his paper.

Thank you very much for allowing us to appear here today, sir.

REP. SCOTT: Thank you, Mr. Patterson.

Mr. Aikens.

MR. AIKENS: Thank you Chairman Scott and members of the subcommittee for inviting me to testify before you today. My name is Willie Mays Aikens and I'm here to tell my story about the direct effects of crack cocaine on -- (inaudible). Also testify about -- (inaudible)-- crack cocaine -- (inaudible) -- the rest of my life. (Inaudible) -- I want to tell you today is again what I was -- (inaudible) -- in 1977 --(inaudible).

REP. SCOTT: Mr. Aikens, can you make sure your microphone is on, or bring it a little closer to you?

MR. AIKENS: The story I want to tell you today began when I was drafted by the California Angels after my first year in college. I played three years in the minor league system before I was promoted to the major leagues. I had my first taste of the big show in 1977. I also had my first taste of powder cocaine that same year. This was my first encounter with drugs.

I was traded to the Kansas City Royals in 1979 and played in the World Series in 1980, where I hit two home runs in game one and game four of the series, a record that still stands. But I was also using drugs on a regular basis, as were many other major league baseball players at that time. In 1983, I was convicted of misdemeanor drug charges along with three other Royals players. We were sentenced to three months in prison. We were the first active major leaguers to serve jail time for drugs.

After that, I was traded to the Toronto Blue Jays and my baseball career went downhill. I ended up playing in Mexico for the next six years, where I started back using drugs regularly. I retired from baseball in 1990 and returned to Kansas City, where I became a recluse in my own home, going out mainly to buy cocaine. I had started smoking cocaine in Mexico, so I knew all the ins and outs of preparing the drug.

I went through two bank accounts of over $300,000 and didn't think twice about what I was doing. I was living a destructive lifestyle and was enjoying every bit of it. Finally, in 1994, all of this came to a stop. One day out of nowhere, a woman arrived at my house in a car, looking for someone to get her drugs. It turned out that she was an undercover officer for the Kansas City Police Department, which had started an investigation of me because of anonymous telephone calls.

Over the next several weeks, she accompanied to my supplier's house to purchase powder cocaine, and these times, she asked me to cook it into rock cocaine or crack, which I did. A full purchase of crack cocaine put me in the mandatory minimum ten year guidelines. The Kansas City police turned my case over to the federal authorities for prosecution, to make sure I got the longest sentence possible. I took my case to trial and lost. I received a sentence of 20 years and eight months, the highest sentence that the jurors could give me under the sentencing guidelines.

A similar amount of powder cocaine would have resulted in a sentence of drugs charges of, at most, 27 months. During my 14 years in prison, I rededicated my life to Jesus Christ. I came to realize that being taken off the streets at that time saved my life. It didn't take 14 years to change me, but it did take being incarcerated to leave that lifestyle behind. While I was in prison, I completed three different drug rehabilitation programs, which helped me realize that I have an addiction problem.

I came in contact with so many other people that had the same problem I had. I also came in contact with a lot of people that had life sentences because they were convicted of selling crack cocaine. Many of them were first time offenders, had no criminal record and had no violence in their case. My case was very sad, but theirs were sadder. These people were never going home.

After I spent 14 years of my life in prison, Congress finally allowed the sentencing commission to reduce the crack cocaine guideline. I benefitted from the change in law and the courts gave me almost five years off my sentence. I got out of prison last June. My original release date was 2012. Since my release from prison, I have developed a relationship with my daughters, who were small children when I went to prison. I have found a job working construction in Kansas City, and I'm in the process of getting back into professional baseball.

I have been clean and sober for 15 years, and I have a strong spiritual foundation. I am writing a book. I am doing speaking engagements in and around the Kansas City area about the dangers of drugs and alcohol. God has truly blessed my life.

In closing, I would like to add that I didn't come to Washington, D.C. to testify for myself. I came for all the people I left behind in prison. I made a promise to those people that if God allowed me to leave prison before them, that I would do everything in my power to help them. That is the main reason why I am sitting in this chair today. They have so many sad cases of drug addicts being locked up, and the key has been thrown away.

They have so many families that are suffering right now because a son, or father, or mother, or brother or sister will never come home from prison. Look at me, and look at the progress that I have made in my life because I was given another chance to live my life as a free man. I believe many more people would do the same thing if they are given a chance.

I am praying that this will be the last time the subcommittee will meet regarding these unfair laws. These mandatory minimum laws and the crack versus powder cocaine disparity need to be eliminated.

Cocaine is cocaine, regardless of the form it comes in. Thank you for hearing me.

REP. SCOTT: Thank you very much, Mr. Aikens. And I understand that you'll have to leave shortly, so when you have to leave, we'll understand.


REP. SCOTT: Thank you.

Mr. Bushman.

MR. BUSHMAN: Thank you, Chairman Scott. I'd like to thank you for inviting me to share the views of the National Narcotics Officers' Coalition.

My name is Bob Bushman. I've been a law enforcement officer for 30 years. I'm vice president of the NNOAC, which represents 44 state associations with more than 69,000 law enforcement officers nationwide. I want to thank the subcommittee for working with us on critical public safety issues, including passing both the Byrne- Justice Reauthorization Second Chance Act last year. Technically, what NNOAC members do, is we enforce laws against crime and illegal drugs that legislative bodies like Congress put into place. In human terms, as we speak, there are police officers, sheriff's deputies, state and federal agents working to protect our communities from predators who greatly profit by selling and distributing poisons to our kids.

REP. SCOTT: Mr. Bushman, there's something wrong with your mike. If you could use Mr. Aikens' mike -- (inaudible) -- get it to work.

MR. BUSHMAN: Is that better? Be glad to. Okay, how's that? All right.

These predators purposely harm not only the user, but the user's family and the communities as well, and in most instances, our members are the only ones that stand in their way. The devastation I saw in the 1980s and '90s as a cop working crack cases was unlike anything we'd ever seen. The crack trade was responsible for dramatic increases in violent crime in our communities. Drive-by shootings, gang wars and home invasions because common. Citizens demanded tough measures to bring the situation under control, and the current laws related to sentencing of crack offenders were a direct response to the desperate pleas of the law abiding citizens and their families.

Yes, we continue to have a significant drug problem in this country. We know that. But crack and cocaine use has declined in the past 25 years, due in part, we believe, to tough criminal sanctions that both prevent drug use and compel cooperation of individuals to take down drug rings. Let me be clear. We understand the sensitivities around the issue of the 100:1 crack/powder disparity, but we need you, our members of Congress to understand that we law enforcement officers want you to understand what we as law enforcement officers see and experience every day during our careers, and understand that we are dedicated professionals who work hard to protect our citizens, no matter who they are, where they live or what they believe.

We're caught in the middle on this issue. It's difficult to protect the citizens of the drug infested high crime areas who need us the most, when we cannot rid those neighborhoods of the ones who abuse them the most, the drug dealers and gangs. We're criticized by some for not doing enough and by others for being too aggressive in our prosecution of drug violators. Tough drug sentences are a very effective way of getting predators off the streets, the people who do the most damage to our communities.

Many violent crimes are committed by people who are under the influence of crack. Domestic violence and child abuse are common among the crack riddled neighborhoods. I've spent money out of my own pocket to buy kids meals when we've gone into crack houses because they haven't had enough to eat. I used to keep a bag of diapers in my car because often, we'd end up changing diapers of kid who were being neglected and living in filthy conditions in some of these homes.

We've been asked about our views on the legislative proposals to reduce the crack/powder disparity. While we believe that the existing law has been a valuable tool in reducing the impact of crack on communities, we also realize that it has had a negative impact on some people's perception of law enforcement. So, while we agree that it is appropriate for Congress to review the law, we also believe that Congress should consider a solution to narrow the disparity between crack and cocaine powder that includes lowering the threshold quantity for powder cocaine. We do not believe that the best approach is to dramatically increase the threshold amount of crack that triggers the minimum penalty.

Why should we continue to maintain tougher sentences for crack than for coke powder? Smoking crack leads to a sudden, short lived high, causing an intense immediate desire for more of it. Just last month, the director of NIDA, Dr. Volkow, testified before a Senate Judiciary Committee that "research consistently shows that the form of the drug is not the crucial variable, rather it is the route of administration that accounts for the differences in its behavioral effects." As science proves that smoking crack produces different effects than methods of ingesting cocaine powder, the violence associated with the crack trade is more prevalent than that associated with the powder coke trade.

We've seen this happen in community after community. Part of it has to do with the turf wars, the drug dealers and urban gangs fighting for control of an area and the customers it contains. Although much of the violence is dealer on dealer, innocent bystanders and sometimes even entire neighborhoods are often caught in the crossfire. It's difficult to protect our communities if we can't remove those who are responsible for the crime and the violence.

Selling crack is more profitable than selling powder coke. If crack cocaine penalties are made equal to that of powder, there will be more incentive to sell crack and to make bigger profits. While it is true that crack and powder have the same physiological effect on the brain, the negative impact on public safety due to the violence associated with the crack cocaine trade alone justifies the difference in penalties. We realize that we can't arrest our way out of the drug problem. Prevention, education and treatment programs must be supported to help people avoid the criminal justice system in the first place, but those who do become users and addicts need help, and in many cases, the criminal justice system is the gateway to their recovery.

The NNOAC strongly supports drug court programs. We believe they should be strengthened and expanded to mitigate the problems caused by drugs in our communities. But the threat of arrest, prosecution and imprisonment are important components in deterring drug use, reducing crime and protecting our citizens from falling victim to violent and predatory criminals.

I thank you again, Mr. Chairman, for the opportunity to share our views. We all want the same thing. We want to provide safe and stable neighborhoods. We look forward to working with you on this and the other important issues. Thank you.

REP. SCOTT: Thank you.

Ms. Coleman-Davis.

MS. COLEMAN-DAVIS: Thank you, Chairman Scott and distinguished members of the subcommittee. Thank you for giving me the opportunity to appear before you today to share my views.

I recognize that this committee has received substantial data and anecdotal information about the impact of the sentencing disparity between crack and powder cocaine, but not much has been said about how devastating this disparity has been on generations of children in the African-American community, many of whom now view incarceration as the normative rite of passage. I hope that through these hearings, we will begin to understand that we not only need to end the disparate sentences but we also need to ensure some means of prevention, intervention and healing for those children who are also victims of this disparity.

In my career, I have worked with many law enforcement officers who are dedicated to protecting and serving their communities. They want to do their job, and if they are measured by the numbers of arrests they make, they will make a lot of arrests.

I have witnessed drug stings that were solely focused on housing projects where sales were to people driving up in cars from outside of that community, and arresting low level street dealers selling crack is like shooting fish in a barrel. On the other hand, going after major sellers, users of powder cocaine, often meant taking the time to develop leads in order to obtain search warrants for upscale homes and then face long drawn out court battles with high paid attorneys, which meant lower arrest stats.

The outcome of those law enforcement practices clearly meant that more Blacks were going to be arrested than whites. The joint local and federal task forces also have the added advantage and leverage of giving the low level dealer a choice between state and federal prosecution, if he or she was willing to lead them to them kingpin, or if they could give up someone above them in the food chain, then they would likely receive consideration in their sentence. Most could not, and first offenders with five grams of crack were sentenced to five years in prison, instead of a lesser sentence perhaps in the state system.

As U.S. Attorney and chief law enforcement officer for over 22 counties, I work with all of the law enforcement agencies, local, state and federal, to ensure that our limited federal resources were focused on the most pressing problems in our communities. When I recognized that we were spending considerable attorney resources on street drug crimes and not the serious and major drug traffickers that were intended targets under the Federal Antidrug Abuse Act of 1986 and '88, I reviewed the issues with my chief assistant United States Attorney of our drug task force, spoke with some of our judges and our district's DEA special agent in charge, and made the decision that our office would not take five gram crack cases that were prosecutable in state courts, and we increased our minimum prosecution guidelines of crack cases to 50 grams and focused our efforts on major drug dealers including cartels.

We were also very mindful that even 50 grams was insignificant compared to the thousands of grams that were coming across our borders from Mexico. And yes, I was challenged by one reporter of not prosecuting as many cases as my predecessors. I pointed out to him that the number of defendants on a single indictment demonstrated that we were reaching the organizations as opposed to pursuing ten indictments against low level individuals. I firmly believe that it's not the duty of a prosecutor to simply obtain convictions by the numbers, but to do justice.

I was never called soft on crime and I am the first to say the people who commit crimes should be punished for their criminal activity. But bringing criminals to the bar of justice also means treating them fairly and equally. Therefore, I do not believe that the average citizen, given what we know today, would agree that there is equal justice in sending one person to prison for five years for possessing five grams of crack cocaine, and another receiving the same sentence for possessing 500 grams of powder.

It is now time to correct a well known and understood mistake in our system of justice after more than 20 years, multiple studies and recommendations from the United State Sentencing Commission, and at least two generations of families and children torn by systemic imposition of imprisonment for having one hundredth the amount of cocaine than their white counterparts. It is surely, not only good policy, but it is good politics to correct this injustice. This is what we say, as prosecutors, that truth dictates and justice demands. Thank you for conducting these hearings and allowing me to speak to this important issue.

REP. SCOTT: Thank you.

Mr. Mauer.

MR. MAUER: Sure. Chairman Scott, I'm aware I don't have lifetime tenure. I'll try to stick to the time limits (laughter) and close this out.

Let me just say, you have my written testimony. Obviously we are not here to debate whether drug abuse is a problem, whether it's crack cocaine or powder cocaine, or other hard drugs. We're here to talk about what is fair and what is the effective in public policy, both to have a better impact on the problem of substance abuse and to communicate that to the public.

When we look at the effectiveness of our current policies, I don't think we have much to recommend them at the federal level. Federal drug policies, historically, were supposed to go after high level drug importers, high level cases. When we set the threshold at five grams of possession, that clearly flies in the face of what those objectives are. The data from the sentencing commission have shown us over many years, roughly 60 percent of the crack cocaine cases are in the lower levels of the drug trade. Yes, these are not necessarily all first time cases of five grams of possession, but they're certainly not the importers, the high level drug operators.

If we look at questions of cost effectiveness, conservatively speaking, it costs about $25,000 a year to incarcerate someone in federal prison, so every time a judge is required to impose a mandatory five year sentence, that's $125,000 of taxpayer resources. We already have many people in federal prison with untreated drug problems. If we care about resources, if we care about addressing the problem, dealing with these low level cases in federal prison does not seem to be a very wise strategy.

Secondly, I think we've seen historically the crack penalties have been inappropriately premised on an exaggerated sense of violence associated with crack. Is violence associated with crack? Yes, it is in the crack trade, same as with powder. And if we look back 100 years, any time a new drug comes along, it's not at all unusual that turf battles erupt over that, and we have an epidemic of violence, as it's sometimes called. Most of this, in regard to crack, took place in the late 1980s, when crack first made its appearance in many urban areas.

There was some belief at the time it was due to the drug itself. We now know, of course, these are battles over turf battles and young people, in particular, having easy access to guns, all of that coming together. We also know that the majority of crack cases do not involve violence in terms of offenders who actually use a weapon. As you've noted, only three percent of the crack cases, one percent of the powder cases, involve actually using a weapon. I don't know anyone who would suggest we should not prosecute people when they are engaging in violence along with a drug offense, but we have no shortage of tools available to do that, through the sentencing guidelines or through additional charges brought against them, and in effect, what we've done with the crack cocaine penalties is to treat all crack offenders as if they were engaging in violence, rather than allowing judges to determine which cases required additional penalties because of the violence associated with that.

That doesn't seem like it should be a terribly difficult thing to do. That's what judges do every day. We also see, in terms of the impact of what crack cocaine laws do, in terms of law enforcement and the courts, as we know the law has to be fair, it has to be perceived as fair, and I think it's reasonable to say, in many communities of color, the crack cocaine laws are not perceived to be fair. Most Americans don't appreciate, as most people in this room do, the distinction between federal and state laws and when there's a perception that the laws are unjust, people are not making the distinction, and you have many leaders in law enforcement, and judges and others, who will make the argument that their ability to gain cooperation from the community is harmed.

Their ability to have people convict in appropriate cases when serving on jury may be harmed because of this widespread perception of unfairness that's increasingly prevalent. So I think if we think of public safety outcomes, we need to be concerned about this. Finally, just a word about the equalization issue. I think there's growing sentiment that the ratio of 100:1 is clearly inappropriate and many people are supporting a 1:1 approach. Just in terms of how that should be established, I don't think there's anything on the record that shows that the penalties for powder cocaine are not sufficiently serious right now, that they should be adjusted.

We've seen no documentation of this. The sentencing commission has not produced any evidence of problems with this, so the question is not, should there be penalties associated with these various forms of the drug. The question is how much punishment is sufficient but not overly punitive to accomplish the goals of sentencing and accomplish the goals of public safety.

Let me just close by saying, we're at a time of evolution on all these issues right now. The Supreme Court, in the Booker and Kimbrough cases have clearly opened up new ways of thinking about these issues in the sentencing commission guideline changes. It seems to me that is a very appropriate moment for us to move ahead to allow judges to be judges, to use discretion appropriately.

I have great confidence this is what we can do and I think we'll have better public safety outcomes if we move to change these policies. Thank you.

REP. SCOTT: Thank you. And I want to thank all of our witnesses for their testimony, and then again, a few questions before we have to close the hearing.

First, Judge Hinojosa, a lot has been made about the difference in crack and powder in terms of violence, use of weapons and that kind of thing. Can the sentencing guidelines incorporate, on an individualized basis, whether or not a weapon was used, whether or not there was violence, whether or not you were abusing your children in the process of using drugs? Can all of that be incorporated into the sentencing guidelines for an individual case?

JUDGE HINOJOSA: That is definitely true, Chairman Scott, and I will say that presently, the guidelines have some of these adjustments. There is an enhancement for using a weapon during a drug trafficking crime. And we certainly have the enhancements for the use a minor that would apply in any criminal violation, as well as the role in the offense with regards to either mitigatory or an enhancement role. And many of the opportunities are within the guideline system already, and certainly they could be provided with regards to some of the other matters that you have mentioned also, sir.

REP. SCOTT: And if, in fact, violence is more associated with crack, and weapons are more associated with crack, then on average, they will be, if you are individualizing your punishment, to the extent that that's true, they would get more serious punishment.

JUDGE HINOJOSA: That is true and also the criminal history categories are also taken care of within the guidelines, because if you have a higher criminal history category, obviously, that will increase your suggested guideline sentence. I will also indicate that, where that does become a problem is with the safety valve, with regards to any mandatory minimum policy of the Congress, in that anybody who has more than one criminal history point, cannot qualify for safety valve.

REP. SCOTT: Mr. Breuer, the punishment enhancements in the code are based on the weight of the entire conspiracy. So someone with a minor role in a large conspiracy will get a much more serious punishment than someone with a conspiracy that they had very little do with, actually, was dealing in less. What can we do about the so called girlfriend problem, where you have someone with a very minor role, being judged as a serious criminal by virtue of the weight of the entire conspiracy?

MR. BREUER: Well, Mr. Chairman, what we are doing, of course, is we now have a sentencing working group under the direction of the deputy attorney general, where we're looking at all of these issues, and the very issue that you're identifying is the one that we're thinking very hard about, and that is to really individualize as best we can, through enhancements, what the appropriate role is. Our goal is that those who are the most culpable, those who are the most responsible are those that get the longest and hardest punishment. We want to be away from a construct where we are forced to give harder sentences than are necessary for people who have minor roles. That's the goal and that's what we'd like to accomplish.

REP. SCOTT: And one of the problems with that, obviously, is the imposition of mandatory minimums, which have been studied and found to be discriminatory, racially discriminatory, a waste of taxpayers' money, often violate common sense. You aren't insisting that we maintain the mandatory minimums in the law while you study it, are you?

MR. BREUER: What we're doing, Mr. Chairman, is we're considering all the issues. So, we are absolutely not demanding that mandatory minimums will be part of any new construct. Frankly, Mr. Chairman, we're also hearing those who are proponents of it, and we want to have a comprehensive approach. So really, at this point, we're considering all the different points.

REP. SCOTT: But as you consider it, you're not taking a position on what we would do legislatively to mandatory minimums?

MR. BREUER: At this point, we are not.

REP. SCOTT: Thank you.

Mr. Bushman, you had suggested that tougher sentences may have been responsible for lower drug use? Did I understand you right?

MR. BUSHMAN: (Inaudible.)

REP. SCOTT: Do you have any studies that show that drug use has been lowered in those areas with more severe penalties?

MR. BUSHMAN: Well, I can tell you that, based on my personal experience, when we've been able to prosecute and remove organizations and high level dealers from the neighborhoods, the amount of violence has gone down. The numbers of our shootings have gone down. The numbers of murders in the communities that were running rampant with the crack dealing have gone down.

REP. SCOTT: Do you have any studies to show that the longer sentences, not the fact that you caught people and incarcerated them, but the longer sentences, were responsible for the reduction in crime?

MR. BUSHMAN: I've seen some, but I don't have any here to cite for you.

REP. SCOTT: Okay. If you could, provide those for the record.

Mr. Mauer, do you have any studies that show that the longer sentences actually reduce crime?

MR. MAUER: I think most of the deterrence literature in criminology suggests that any deterrent effect the system has, which it does, is more based on the certainty rather than severity of punishment. In other words, if we can increase the prospects that a given person will be apprehended, then at least some people will be deterred from committing crimes. But merely increasing the amount of punishment we impose for people who don't expect to be caught, and unfortunately, most people don't expect to be caught, has relatively little effect on adding to deterrence.

REP. SCOTT: And Ms. Coleman-Davis, you suggested that you'd recommended stopping the sweep of low level criminals. If you arrest people who are just the street dealers, what does that do to the general amount of drugs consumed in the neighborhood?

MS. COLEMAN-DAVIS: I wasn't suggesting that we stop police, or stop arresting low level dealers. I was simply pointing out that law enforcement resources, at both the state and federal levels, need to really focus on where the drug problems are all over its community, not just in the low income communities, which are basically very easy pickings.

People have information, pretty much, like in Mr. Aikens' case. If they want to make the cases, they can. It just takes a little bit longer and they have to go through more hoops to do it. But they can make larger cases in terms of drug quantities and numbers of people using and selling if they took the time to do it. And they do, but they just don't do it in larger numbers.

REP. SCOTT: Is it true or not true that some street level person being picked up and arrested and given the five year mandatory minimums, that that person will routinely be replaced on the street ---

MS. COLEMAN-DAVIS: Absolutely.

REP. SCOTT: Almost instantaneously?

MS. COLEMAN-DAVIS: Absolutely. Yeah --

REP. SCOTT: Well, I want to --

MS. COLEMAN-DAVIS: The answer's yes.

REP. SCOTT: Obviously, we have a vote pending that I have to make, and I want to thank all of our witnesses. Your testimony has been extremely helpful. I think there's obviously a consensus that something has to be done. There's not a consensus exactly what it should be, but we should make as much progress s we can in the near future on this issue. And I want to thank all of our witnesses.

The record will remain open for five legislative days for additional materials, and if nothing more, we stand adjourned. (Sounds gavel.)