the committee will come to order i'm pleased to welcome you today before the subcommittee on crime terrorism and homeland security on the issue of unfairness in the federal sentencing is a time to correct one hundred to one disparity will be discussing and considering legislation pending before the house regarding the issue including h r fourteen ninety five the fairness and cocaine sentencing from the nine h r fourteen sixty six the major drug trafficking prosecution act of two thousand and two sixty five the drug sentencing reform and cocaine kingpin trafficking act of two thousand and nine h r s twenty one seventy eight the crack cocaine equitable sentencing act of two thousand and eighteen the power to crack cocaine penalty equalization act of two thousand and the full committee of the judiciary is scheduled a hearing at noon today so i want to alert the members and witnesses that will have to conclude  time for members to attend the noon hearing on the auto industry bankruptcy attorney 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 cocaine penalties makes no sense it's unfair and not justified and it should be fixed however there is not yet a consensus on how to do it after extensive study on the issue of the last twenty years appears to be no convincing scientific medical a public policy rationale to justify the c or any other disparity in penalties for the two forms of cocaine scientific and medical research is found that crack and powder cocaine have essentially the same pharmacological and physiological effects on a person the indicated method of how as in generally ingested ingested by users through smoking in a pipe no other legal illegal drug has a severe penalty differential based on the differing formations of the drug and certainly not not for a lesser amount of the illegal need the violence nor any other associated history of use between the two forms of the drug seems to justify penalties the sentencing commission reports that ninety seven percent of crack offenders do not use weapons compared to ninety nine percent of powder transactions do not use weapons but a small difference in the use of weapons and crack and powder could be addressed by a sentence is based on the particular case not whether crack or powder was used  crime the original basis for the penalty differential is 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 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 eighty 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 while at some point so while some point to the fact that african american citizens like all citizens demand that illegal drug peddlers be removed from their come from their communities those same african americans are strongly in favor of removing the district disparate sentencing between crack and powder cocaine u s sentencing commission has released four reports in the last fifteen years on the subject each time urging congress to amend the cocaine sentencing laws unfortunately those pleas of fall and on to deaf ears in congress commission as well as a federal judicial conference has urged congress to remove the unfair mandatory minimum sentences each time they were mondas of those mandatory minimums often common sense one example they frequently point to is a five year mandatory minimum sentence for a mere possession of five grams of crack crack is the only illegal substance which there is a mandatory minimum sentence for mere possession mere possession of a ton of more of any other illegal substance does not result in any mandatory minimum sentence only crack cocaine as a mandatory penalty for mere possession any other drug mandatory minimum requires criminal rebuke the mandatory minimum sentences have been studied 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 the general and general sentencing policy where a person deserves a sentence of a particular let 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 involved in the crime and background of the offender a judge has to impose the mandatory sentence anyway but is another really reasons of federal judicial conference as recommended on many occasions that congress eliminated mandatory minimum sentences on 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 penalties fourteen ninety five fourteen fifteen on the fairness and cocaine sentencing act of two thousand and does just that first it eliminates the legal distinction between crack and powder by removing the definition of crack there about leaving cocaine to be penalized in any form at the penalty levels presently they are for powder cocaine second the bill eliminates all mandatory minimum sentences for getting cocaine offenses and then back to sentencing decisions to the sentencing commission judges are best equipped to determine an appropriate sentence based on the amounts and other factors taken to account with respect to other and other factors taken into account with other dangerous illegal drugs are also allowed 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 of the drugs but had some small role in the in the distribution network unfortunately with the present situation that person would be held accountable for the entire weight of all of the drugs in the conspiracy often resulting in decades of jail time for a relatively minor minor criminal activity the commission and our judges know how to do their job so we need to let them do it i'd like to live 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 other members of the co sponsor my bill h r fourteen fifteen and listening to the increase calls to in the decades of illegal discrimination and if you don't want chairman scott i'd like to also welcome the witnesses thank you for joining us today discourse to discuss is important topic anti drug abuse act one thousand nine hundred six established the sentencing levels for federal crack cocaine offenses congress gram of crack or a mandatory five year term for offenses involving five hundred grams of cocaine or five grams of crack this sentencing disparity between powder and crack cocaine raises important public policy issues on the one hand because african americans apparently comprise the majority of crack cocaine offenders the graco game penalties of the resulted in a disproportionate number of african american serving longer sentences than powder cocaine fender's on the other hand many argue despite the intent to apply these penalties to mid level and high level traffickers a large percentage of those subjected to disparate crack penalties are in fact low level straight dealers it is the casing to man's father examination by his committee in congress  the differences in which crack and powder cocaine are trafficked branches my understanding of whether it's sold on the straight is powder or crack most if not all cocaine enters the us in the same form as some point process cocaine is cooked down into crack but it what point does a mid level travelers do this or is this done by the straight dealers were truly serious about focusing federal drug penalties on those who trafficking crack and powder cocaine then we need to fully understand how these drugs are traffic many also claim that our federal prisons are full of first time nonviolent drug offenders as a former prosecutor and judge i find it a little hard to believe the likelihood of a first time offender or even a drug offender being sentenced to federal prison not simply jail or probation is pretty slim to be sure in march two thousand and nine violent offenders housing federal bureau of prisons facilities accounted for fifty three point two percent of the total population of inmates and in sentencing laws congress must balance the desired reform the current sentencing disparity with the need to ensure that our federal drug laws maintain appropriate 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 rangle 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 scarred i've got the congressional record remarks congressman rangle i've got you know the co sponsorship of the bill seem 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 rice slow only one race is law it was born out of the best intention and how to deal with this garbage 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 ninety six congratulating congressman rangle 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 the difficult problem that i saw as a judge was adversely affect acting are 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 gemma's got appreciate you calling this year and we do have a lot to figure out and what is the best way to approach this appreciate my friends being here to testify thank you for your interest thank you  have two panels of witnesses today to help us consider this important issue our first panel consists of four members of congress who are sponsoring or sponsoring our 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 mrs smith thank you mr chairman i won't do a delay in behind you but thank you for the record in response to an epidemic of drug abuse associated with the trafficking of crack cocaine in the one nine hundred eighty s a bipartisan majority in congress approved a one hundred to one ratio in penalties between crack and powder cocaine based with pumping powder cocaine prices drug dealers decided to convert the powder to crack smoke of a form of cocaine crack with cheap simple to produce easy to use and highly profitable one dose of crack could be bought on the street for as little as two dollars and  never before had any form of cocaine with such a high purity been available at such low prices produced an instant high and it became addicted in a much shorter time than powder cocaine along with the spread of crack trafficking and crack addiction came crack related violence by the late one nine hundred eighty s over ten thousand gang members were dealing drugs in the nearly fifty cities across america related murders and many large cities were skyrocketing new york city crack use was tied thirty percent of all home asides 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 thirty 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 are sarafian worked because it incapacitates offenders preventing them from committing even more crimes the solution to the sentencing disparity cannot be simply to eliminate the ratio of congress considered 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 penalties asking powder cocaine sentencing commission data show that crack cocaine is associated with violence to a greater degree than most other controlled substances last year twenty eight percent of all federal crack offenders possessed a weapon compared with seventeen percent cocaine offender back offenses are also more likely to involve offenders with a prior criminal history two thousand and eight 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 and a sentencing reform undertaken by congress to address the disparate impact of crack penalties not result in a resurgence of crack dealing and crack abuse similar to what we experienced in the  the american philosopher george santayana cautioned those who cannot remember the past are condemned to repeat the chairman i look forward to the hearing and hearing hearing from our witnesses as well and you back in my time and thank you for the recognition thank you and would also like to recognize the presence of the gentleman from illinois mr quigley's gentleman from california mr long when the gentleman from texas mr poe first witness honorable charles rangle serving his twentieth term is a representative from the fifteenth congressional district of new york is chairman of the committee on ways and means chairman of the board of the democratic congressional campaign committee is a former prosecutor and the sponsor of h r twenty one seventy eight the crack cocaine  act of two thousand and the second witness will be the honorable sheila jackson lee who represents a district of texas she serves on the judiciary committee including the subcommittee the foreign affairs committee and the homeland security committee she is a congress he serves as a ranking member of the air and land forces subcommittee the house armed services committee and on the small business committee is one of three scientists in congress and is a senior member of the science and technology committee last witness will be congress the gentle lady from texas maxine water 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 the subcommittee as well as subcommittee on immigration border security and claims committee will guide 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 now this is especially so when you find a great nation jailing more people than the whole world together have seen fit to jail in their countries and sense 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 they don't produce anything they don't contribute to the nation security and anyway and indeed they're not even available to be drafted if we had a draft or to volunteer if they wanted to volunteer and so the whole system i would hope that this press that and the attorney general would want to address this is especially so if you take a look and see a lot of these people being locked up 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  service communities in terms of medicine where the schools failed you would see that the the poor white minority support whites that have not had access to the tools that keep people away from crime  unrealistic and most said he said i don't know what happens in the rural areas but saying that you have that conviction it doesn't really count say i didn't know what was in the shoe boxes someone told me just to take this to the to the airport and so i think we have a great opportunity not to talk about how we got here but this daunting isn't working it's not working not work for minorities is not working for our country and to take away the discretion of a judge  don't need judges we have to do is put something in a computer and if you find this to be a fact they give you five ten fifteen twenty mandatory years so i'm so glad that this committee has seen fit once again  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 healthy 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 doesn't make any monetary 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 who has this responsibility you have to enforce the law get off the bench these are things that the 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 would be what a message to send to america and to the world that we have used this system it hasn't worked for us and we've got to find a better system where people one 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 the private  public sector that's even thinking about taking drugs if we can deal with that problem that we won't have the other and the worry about as to whether or not it centers 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 in this great country and i know this congress is anxious and willing to make a contribution that if it thank you thank you was reichl sexily thank you very much mr chairman it is a privilege to have the opportunity to share with the subcommittee on crime and i thank you and ranking member judge gomen 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 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 that it first came to my attention judge  y a brother of a extended friend of the family if you will who in a nonviolent way utilized drugs and is now serving a long long sentence of twenty five years plus i know ou 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 just made note of the fact that there's something better to do incarcerating nonviolent 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 the 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 warehouse for nonviolent and often petty crimes in many instances a nonviolent crimes  involve drug use the european union with a population of three hundred seventy million has one six the number of in cars rated persons as we do and that includes violence and and offenders and this is one third the number of prisoners which america a country with seventy million people fewer incarcerate for nonviolent 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 manny brewer and  sponsored by then congressman chris shays ivery induced reintroduced this year and pacifically the legislation the drug sentencing reform and cocaine kingdom trafficking act of two thousand and nine seeks to increase the amount 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 a judge's discretion and directs the u s sentencing commission to review and a man if appropriate sentencing guidelines for trafficking in a controlled substance to reflect the use of a dangerous weapon of violence and such crime and the culpability and role of the defendant in such a crime taking into account certain aggregating and mitigating factors we know that we have to balance helping those who have made a mistake helping those who've been nonviolent and as well recognizing that we are 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 the direct attorney general to make grants to improve drug treatment to offenders in prisons jails and juvenile of the facilities i really believe this is a key element to this legislation if the bad guys bad guys we want to make sure that we addressing that concern but as it relates to the nonviolent 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 establish demonstration programs to reduce the use of alcohol and other drugs by substance abuse is whil incarcerated until the completion of parole or court supervision creases 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 th administration joined us district judge reggie walton in urging congress to any racial disparity by equalizing prison sentences were dealing crack cocaine or crack versus powder cocaine the assistant attorney general lanny breuer his report it as stating that the administration believes congress goal 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 fair an issue because under selling five grams of crack cocaine triggers the same five year mandatory minimum sentence as selling five hundred gram 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 two sixty five 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 the sentencing scheme has had a racially discriminatory impact for example in two thousand and seven eighty two point seven percent of those sentence federally for crack cocaine fences were african americans despite the fact that only eighteen percent of crack cocaine uses in the us 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 i'm sorry the lower income individuals who more often use crack 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 introduced h r eighteen the powder crack cocaine penalty it was a sham act of two thousand and nine to change the applicable amounts for powder cocaine to those currently applicable to crack cocaine i first introduc identical bill in two thousand and two i'm here today to specifically welcome and support the most recent position of the justice department that the sentencing sentencing disparity should be reduced i'd like to eliminate it i welcome this hearing i hope that congress will follow the recommendations of numerous authorities and approve reducing this ratio and december of zero seven 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 us supreme court ruled that that a federal judge hearing a crack cocaine case and i quote may consider the disparity between the guidelines treatment of crack and powder offenses both of these decisions reflect a growing concern that there should not be a one hundred to one ratio on the amounts of powder cocaine and crack cocaine that trigger a mandatory minimum sentences we know of more and better information than we did in the past in order to assess the ratio and make adjustments and the changes to the ratio must be based on empirical data i am a scientist i have a ph d in human physiology with a substantially much more evidence that we have now that one hundred to one an equal treatment is not justified our law 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 of 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 one hundred to one disparity cannot be justified by the current evidence that has accumulated politics in the last catch up to scientific evidence i noted in two thousand and two i first introduced that in two thousand and two 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 miles for powder cocaine to those currently applicable to crack cocaine several of my colleagues have introduced legislation to address the same issue too little effect however we have recently been bestowed an opportunity last month just as a first time called upon congress to pass legislation that would eliminate the significant disparities for those convicted of crack and powder possession for african importation exportation for too many years and just a disparate treatment of crack 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 their pursuit of the perfect to present the potential adoption of a compromise that would reduce the justified current one hundred to one 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 want to ask your leave for the opportunity to appear before you today to discuss mandatory minimum sentences but drug offenses and my proposal to eliminate drug sentencing disparities and to redirect better will prosecutorial resources toward i've also worked with families against mandatory minimums and the open society institute it's represented by mr youth in key who is here today and i've traveled the country sharing the stage with kemba smith who became the poster child for what's wrong with these mandatory minimum sentence 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 the sentencing disparities so that we can began to focus rebuild because federal resources to look for lock up the major drug traffickers the current sentencing requirements failed to accomplish the legislative intent of the hundred eighty six drug anti drug abuse act and inadvertently wastes government resources on low level drug offenders moreover the act has had a desperate mbak on the african american community resulting in  incarceration of a disproportionate number of african americans often for many many years and on march twelfth two thousand and nine i reintroduced a major drug traffickers prosecution act h r fourteen sixty six to end mandatory minimum sentences for drug offenses and reebok a scarce federal resources to prosecute major drug kingpins this bill will eliminate all mandatory minimum sentences but drug offenses curb  prosecutions of low level drug or benders 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 dependent individual and unique circumstances instead of been forced to apply stringent sentence and requirements that don't necessarily fit the crime the major drug traffick prosecution act of two thousand and nine goes to the root of the problem by creating a more just system that will apply penalties actually warranted by the crime and stead of mandating sentences regardless of individual circumstances as required 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 bench and the role and background of the offender babil also addresses other problems relating to the use of mandatory minimum sentences by curbing prosecutions of low level drug a bender's and federal courts and by allowing federal prosecutors to focus on the major drug kingpins and other high level of vendors additionally my bill would strip current statutory language that limits the court's ability to place a person on probation or suspend the 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'm 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 correct in course lessons from the one nine hundred seventy repeal of mandatory minimums in the drug abuse act of one thousand nine hundred six 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 powder cocaine base a mandatory minimum sentence their original intent was to concentrate better resources toward the prosecution of major sources responsible for traffic and drugs into the united states the rationale for this policy decision was to direct 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 their bail have drugs on the streets and we can some of the activities leading to increased drug use and drug related crimes twenty years later the so called war on drugs has not been won and mandatory drug sentences utterly failed to achieve these congressional objectives mandatory minimum sentences are not stopping major drug traffickers ever they are however resulting and then cost a ration of thousands of low level sailors in attics moreover these limp and drug sentences have increased the need for more taxpayer dollars to build more present prisons finally these sentences are disproportionately impacting african americans while african americans comprise only twelve percent of the u s population and fourteen percent of drug users we are twenty percent more likely to be sentenced to prison than why dependants much of this disparity is due to the severe penalties for crack cocaine and two thousand and seven is my time up it is i will go back to my time and try and answer the questions which may help complete the testimony thank you very much mr chairman thank you yours for decades now as a judge one of the things sure appeared clear to me in texas is that we were not flying as we should have with the texas constitution which required that we educate but the purpose was to deal with your addiction and is chairman knows and said you know twenty years ago this is addictive stuff and so i'm told that of all the judges in our area many more people subs abuse facilities than other judges but it was a lot down 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 twelve step program if they had their ged or diploma from high school then they could get college we called some other training they could get back in high school vocational training carpentry try to things that they could be equipped with where they could get a job when they got out it was about fifty percent successful as far as recidivism getting back into cocaine was my experience that thirty d programs didn't work so well a mad a couple come out they had met at the treatment facility and had planned all along on celebrating the not a graduation from the thirty day facility by using cocaine which brought him back to me again when i 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 twelve step programs you learn a trade something you could get a job what it was your opinion about facilities like the judge when i was a federal prosecutor i thought a federal prosecutor after we sent them to jail i just went off to the next case once they get the 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 the education from criminals that that's all they know while they're in jail right now it's seventy nine years old judge trying to think of why not hell they go to jail in the first place what were the conditions and surroundings that allowed them to believe that use and carrying cocaine was the only way that they could survive as young people in that community and so there is no question that if someone has an intensive care the treatment should be sensitive sensi is in intensive care but as we do it medicine i am more concerned with preventive that i has than i am and what happens when they make that big mistake but one hundred percent right without showing some compassion some sensitivity is just a merry go round and it's just a short amount of time with seventy percent of those that are in going to retire and so anything that you try to do in terms of stopping addiction educating and preparing someone to deal with the real world has to be 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 sent kids a broken you a courageous a taking those steps because once you got out you were limited in what you could do and you chose to do what you thought was the best interests of this human being so i remember when i was prosecuting that a sudden in new york to make certain they got long time i would have the cases transferred in texas 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 and some of the things that you all have talked about and i really want your on your opinion one thing about our system state courts as opposed to federal system as you said mr chairman federal judges really don't senate's folks they just stick something in a computer and it comes out and tells them what they're supposed to do no discretion no commonsense congress has set such tight reins on senate saying 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 that whole concept of hard fast senate seen guidelines go to my or discretion across the board or just discretion on this area of crack and powder cocaine that's my question to all three of you well let me answer because of course the boy you don't need judges if they don't have discretion they have a human being in front of them they have the fact is that you just can't get into statutes we don't know the sensitivity as judges do that's why we select them hopefully with the ability to understand each and every case which justice is what prevails and not a mandatory sentence is just that in these cases when you drop twenty twenty five and thirty is just shoots at you but judge if we got a response respected you disagree we should give them the discretion in all cases i agree with you there's there's no substitute for a good judge you  provocative with some agreeing and not agreeing but but the discretion was there and that's important i do think we make steps and i think the president structure of looking at at least equalizing the sentencing and giving discretion as 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 a charge to sixty five of course has the opportunity for grants to be rended to ensure that there's some rehabilitation aspect to it and this is a federal system you well know that we have been successful and however the funding has been short on what we call drug courts in texas and i'd like to cite catherine griffin who came out of the drug courts rehabilitate herself and is organized prostitutes who had drug addicted trying to get them to reform their lives i do think there is a direct relationship to the discretion of a judge to help in the fairness of treatment of that particular fended that is before them to give them a pathway out or to be able to determine that there is 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  d 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 nonviolent so that is that would be at the discretion of the judges 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 waters 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 we basically trying to 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  a regulation operations that would dictate exactly what they are to do and sentencing just does not make that sentence 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 him but who was in college at morgan state come from a great family a mother was a teacher a father community leaders and she does happen to be at the wrong place at the wrong time with the wrong individual there was no reason this young lady should have 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 have 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 am i've been on this issue for so long in so many years and traveled around the country on it because i think it's one of the issues that we as public policy makers really need to straighten out so i thank you very much  chairman conyers the fired people his heroes and mine to jazz musicians in the thirty's were known to smoke marijuana and started a war on marijuana which was not illegal up to that time but it was known as something that was basically smoked by reference 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 we're on in life because they've got the scarlet letter and we spend a lot of time in our federal law enforcement working on marijuana laws rather than crack and cocaine and meth and her yesterday f b i director muller first suggested people have died because of marijuana he later retracted that and said no he didn't nobody died because of smoking marijuana but he didn't believe that we should change our policies because he thought it was a gateway drug to 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 nobody's getting that there's no question that with the limited resources we have and they have a strain that we put a law enforcement that we ought to decriminalize it i would suggest that we should do things to discourage people from 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 music 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 on misdemeanor i missed a minor of sorts on this whole question of marijuana we have larger fish to fry i think there are issues dealing with addiction and that someone who needs treatment period in over use of anything  certainly think we have made mistakes in penalizing people there's no use we saw some cases that were absolutely ludicrous people raising it for those purposes who'd been directed to use it 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 a sense of the use of marijuana let me just say that  i wish that we as 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's state law where medical marijuana appears to be happen so many people with cancer and with black homa in particular and so we need to view marijuana a lot differently i'm glad that f b i 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 be dealt with if your kid on the street smoking marijuana and you happen to be a you so you should be deal dealt with a lot differently than someone is out there selling large amounts of marijuana so i think we have to just you know get in the courage to say that we are not going to view marijuana in the same ways as we do we view crack i mean cocaine and other very very hard drugs and it's the difference between small amounts of possession and use and large amounts of possession for 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 largely people of color disproportionately who have the convictions and they need the scholarships and don't get them and what does that do put them in a spiral of failure that needs to stop  parity that existed with respect to sentences given by federal judges across the way had someone visit me in my office daughter had been sentenced to something on the order of twenty five years  a judge in texas where similarly situated defendants were being sentenced to one two or three years in other federal courts disparity we saw by federal judges across the country as we rise to sentencing tried to establish i had lines within which sentences could be made but did allow and still allows federal judges 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 what i'd like to ask with all respect berman wrangle because remember the penalty i recall it being supported by you and by others i'm not i'm not trying to criticize here what i'm asking is this question i bought that argument that i bought the argument presented by people has there been no benefit to this approach i mean we talked about some of the unintended consequences but was there no benefit given was no relief given to these communities violence i guess that might be wrong at that time or did overwhelm us or did we go too far even though we should have gone some way i think some of us congressm did the best with the facts that we had to work with it occurred to me as a prosecutor that if we had a gradient coming into a community that didn't go it didn't manufacture it and people took risk and bring it into that community that if you said you do this the danger that you will 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 but crack is 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 that you came a price that good judgment had nothing to do but you need to get this because it just controlled the mind and destroyed judgment another big problem that we had is that when the chairman remarked about this we had young girls locked because their boyfriend a good drug dealer had sent them to the caribbean for vacation but while they're there pick up the suitcase one of my buddies  the number of carriers that just did not know what they were doing and perhaps the judges found out they should have no but they had such a small role to play in this big mass of drug trafficking that we had in the world and so a lot of us still have a problem with women a very serious problem and that is why do the areas with the highest poverty with the when we make mistakes in saying that we're going to jail you if you'd a victim and so deterrents you would hope would work it just didn't work when a minus good judgement is gone and you over penalize the victim and anyone surrounded in that because they are just so many people that are stupid but innocent of a crime they just get caught in that web and most of the i 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 the nearly all blando who brought cocaine into los angeles that was cooked into crack by ricky ross who's getting out of prison just got out of prison now who t delved into why and how all of these tons of cocaine was coming into first los angeles hooked into crack cocaine and spread out across this country is an issue that we really didn't want to deal with because we know of 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 nick was well i talk with the drug dealers and i worked with ricky ross and i understand that yes there was devastation in the african american community yeah 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 archon of the cocaine was never really dealt with very quickly let me just and the longer and to say to you that yes i believe we we were wrong we were good in our intentions but i think the evidence shows were eighty seven percent of those being prosecuted 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 kingpins violent aka straight is of the marketplace versus the casual user the young user the 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 the 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 back in we didn't focus on the rehabilitation whether it's in the state prison system or whether it's when someone gets out and so we just had people recycle because there was nothing took a long time but just last month if anyone else knows them and the other issue is i probably did two hundred trials on the other side as a criminal defense attorney in cook county in the ninety's and my first ventures were room probably twice this size filled with people in preliminary hearings and the first thing that strikes you is when 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 are arrest take place that also magnifies this in the fact that how crack is purchased versus perhaps powder and in the white community that also enhances this disparity in sheer numbers of prosecutions well let me just quickly say you hit the nail on the head first of all coming from chicago very large city houston the fourth largest city nation the whole criminal justice system skews 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 so to the  purchaser if you will there's nothing that is in conspicuous about side corner conversations the passing of of the of the bag a lot of that is done very conspicuously city council make determinations county governments make determination police chiefs make the determination let's go to this area so you target the year with intense you lose asian police officers arrested me it's almost like a revolving door prosecutors load up on friday night and then monday morning there in court where you happen to be and you see that the large well cocaine is usually been the silk stock and drug and in fact you probably are least likely to see  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 or all focused on crack cocaine it was easy to run three people through state courts and certainly was easy to run them through federal court you also had a conspiracy element as well which was what generated the sentence for the person that i know the brother of a friend who's in for twenty five years allegedly that person was in conspiracy so i think it was clearly a blatant if i might say an equitable treatment maybe even discrimination because of how you got it and who you got it from and where you were seen getting it that basically describes what has happened with the arrest and conviction of these young black men for the most part as you have just to alluded to i think there were resources directed toward african american and 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 them with crack cocaine and again it was quite obvious that something was going on on the street unemployed youth this became an under subculture of  young people getting involved with a teeny amount where they would get a few dollars but they were not involved for any length of time and it may have been you know happen to be able to access a small amount of for this day or this week and then of course the addiction that came along with it and so what you find a sickly 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 despise dippin basically on defenders who don't i'm going to have a huge case loads don't problem in the criminal justice system period where if you happen to be poor if you happen to be black or latino and nine times out of ten if you're a male in particular before you twenty one 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 burble hills in my state you may be involved as a teenager and high schools where young people i trading drugs and given it to each other but you're not going to bust it it just happens that way thank you members  thank you and i thank our witnesses for being with us today a second panel will come forward and i will begin first witness of the second panel of the this system turn to general for the united states recently confirmed lanny breuer he began his career as assistant district attorney in manhattan and continued his career in private practice specializing in white collar criminal and complex civil litigation and congressional investigations southern district of texas but before joining the judiciary he was an edge a professor at the university of texas school of law and a partner of the law firm in texas he graduated five beta kappa with honors from the university of texas at and law degree from harvard law school third witness to scott peterson scott patterson the state's attorney for talbot county maryland who is testifying on behalf of joe joe's of castle a the president of the national district attorney association has been state's attorney for kowtow but county maryland for over twenty years and serves as the maryland director for the national district attorneys association board of directors he graduated from the university of north carolina chapel hill federal crack cocaine federal crack cocaine charges he spent fourteen years in federal prison and was released in june of two thousand and eight is currently living and working in kansas city as come here today to share his story with us career thirty years ago as a minnesota state trooper he has a bachelor's degree from st cloud state university and as a graduate of the drug unit commanders academy as well as the national academy annex witnesses wer map is egypt sits on we sit on the mississippi of course and the nile is an acronym for national 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 and prosecutions fencing and all type of issues in the criminal justice not just she attended the university of howard college here howard university here in math and washington but beyond that she attended the memphis state university school of thank you and thank you and i let last witness will be mr markham our executive director of the sentencing project is one of the country's leading experts on policy race in the criminal justice system is directed programs on criminal justice policy for over thirty years and is the author of some of the most widely cited reports in 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 masters of social work at the university of michigan each of our witnesses written statements will be entered in the record of entirety ask each witness to summarize the testimony by minutes   we have been called for at least one vote so let's see if we can get mr brewer's testimony before we leave for the vote  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 in sentencing laws must provide practical effect of 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 justice system our laws and their enforcement not only be fair but they must also be perceived as fair the perception of unfairness undermines governmental authority in the criminal justice process it leads victims in witnesses of crimes to think twice before cooperating with law enforcement temps jurist 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 will cain and other illegal drugs pose 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 in the one nine hundred eighty s crack cocaine was the newest form of cocaine to hit american streets in one thousand nine hundred eighty six 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 stating back to nine hundred ninety five the sentencing commission has documented in great detail all of the science of crack and powder cocaine as well as the legislative and law enforcement response to cocaine trafficking i will not review all of that information here other than to note the mounting evidence documented by the commission that the in 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 is shown that the quantity based cocaine sentencing scheme often punishes low level crack offenders far more harshly than similarly situated  powder cocaine offenders additionally commission data confirm that in two thousand and eight eighty percent of individuals convicted of federal crack cocaine offenses were african american while just ten percent were white the impact of these laws has fueled the belief across the country that federal cocaine laws are unjust based in significant part on the cerro and commendable work of the commission a consensus is now developed that federal cocaine sentencing laws should be reassessed indeed to set forth more fully in my written testimony many of question whether the policy goals that congress set out to accomplish had b 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 is 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 and weapons involvement associated with some crack offenses the administration shares these concerns about violence and guns used to commit drug offenses in other crimes associated with such offenses byelaws 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 increase penalties for this conduct should generally be imposed on a case by case basis not on a class of offenders the majority of whom do not use any violence or possess a weapon we support sentencing enhanced means for those for example who use weapons in drug trafficking trafficking crimes but we cannot ignore the mounting evidence documented by the commission that the currents cocaine sentencing disparity is difficult to justify at bottom the administration believes that current federal proclaimed sentencing structure fails to appropriately reflect the differences and similarities between crack and powder cocaine the offenses involved each form of the drug and the goal of sentencing serious and major traffickers to significant significant prison sentences we also believe the structure is especially problematic because a growing number of our citizens view it is fundamentally unfair accordingly as i mentioned a moment ago the administration believes congress's 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 to the president congress for new sentencing legislation affecting the structure of federal sentencing  studying issues related to prisoner reentry department policies on charging and sentencing and they're sensing related topics the group will focus on formulating a new federal cocaine sentencing policy one  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 and finding a workable solution they stated at the outset this administration believes our criminal law 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 effects 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 and i thank you thank you very much we look forward to that report we have three votes on the floor and will return probably be about twenty much shortly before my my check point two three four my my check one two three four thank you and chairman scott i appreciate the opportunity to appear before you on behalf of the united states sends and 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 should address the disparity that exist between the pounds for crack cocaine and powder cocaine offenses in two thousand and seven the commission promulgated a crack cocaine guideline amendment to address some of this disparity continues to be of the view that any comprehensive solution to the problem of federal cocaine sentencing policy requires a revision of the current statutory penalty and therefore must be legislated by congress the commission urges congress to take later legislative action on this important issue in the interest of time will be fully cover some of the information submitted in my written statement from the information sent to the commission in fiscal year two thousand and eight we have found that there were five thousand  hundred thirteen crack cocaine defendants sentence in that fiscal year about twenty four percent of the drug trafficking cases and five thousand seven hundred sixty nine powder cocaine defendants were sentenced in that fiscal year about twenty three percent of the drug trafficking cases so combine the cocaine sentences are about forty seven percent of the drug trafficking cases sentence in fiscal year two thousand and eight african americans continue to comprise a substantial majority of federal crack cocaine offenders about eighty point six percent in fiscal year two thousand and eight while this panix comprise the majority of powder cocaine offenders approximately fifty two point five percent of the defendants federal crack cocaine offenders consistently have received longer average sentences and powder cocaine offenders fiscal year two thousand and eight the average sentence for crack cocaine offenders was one hundred fifteen fifteen months compared to ninety one months for powder cocaine offenders a difference of twenty four months or twenty six point four percent most of the difference due to the statutory mandatory minimum penalties in fiscal year two thousand and eight crack cocaine and powder cocaine offenders were sentenced were convicted under mandatory minimums at virtually equal rates about eighty percent of the defendants even though the median drug white for powder cocaine offenses was seven thousand grams compared to fifty two grams for crack cocaine offenses in fiscal year two thousand and eight only fourteen point three percent of crack cocaine offenders compared to forty two point four percent of powder cocaine offenders receive relief from the statutory mandatory minimum penalties pursuant to statutory and guideline safety provisions this is partly attributable to differences in criminal history and weapon involvement in fiscal year two thousand and eight twenty eight point one percent of crack cocaine offenders compared to sixteen point nine percent of powder cocaine offenders either receive the guideline weapon enhancement or were convicted pursuant to title eighteen us code section one twenty four seat crack cocaine offenders generally have more extensive criminal history and seventy seven point eight percent of crack cocaine offenders were ineligible for the safety valve because they were in the criminal history category higher than criminal history category one compared to forty percent of powder cocaine offenders also with regard to the mitigating role adjustment that is made by the courts it was approximately five point one percent for crack cocaine offenders as opposed to twenty percent for powder cocaine offenders the sensing disparity as has already been noted has been the subject of recent supreme court case law in kimbrel versus 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 sensing objective set forth by congress  both the sensing reform act and the one thousand nine hundred six anti drug abuse act in holding that a sense in court may consider the disparity when determining an appropriate sentence in a crack cocaine case in the spears case the court held that under kimbr sense in 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 retro afric at retroactive application of the two thousand and seven crack cocaine amendment in the one year since the m a the amendment went into effect and was made retroactive the commission has received documentation on approximately nineteen thousand two hundred thirty nine cents reduction motions in those thirteen thousand four hundred eight approximately sixty nine point six percent of them were granted and the average reduction was twenty four months from one hundred forty months to one hundred sixteen months five thousand eight hundred anyone about thirty point three percent have been denied of these some were denied because a conviction did not involve crack cocaine or the defendant was otherwise not eligible most often because a statutory mandatory minimum applied or a career  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  view that any comprehensive solution requires revision of the current statutory penalties by congress the commission remains committed to its two thousand and two recommendation that statutory drug quantity ratio should be no greater than twenty to one and recommends to congress that congress increase the five year and ten year statutory men term minimum threshold called quantities for crack cocaine offenses repeal the mandatory minimum penalty for simple possession of crack cocaine and rejected dressing the one hundred two one drug quantity ratio by decreasing the five year and ten year mandatory minimum threshold quality quantities for powder cocaine offenses the commission believes that the federal sensing guidelines continue to provide the best mechanism mechanism for achieving all of the principles of the sensor reform act of one thousand nine hundred eighty four and recommends that congressional concerns about the harms associated with crack cocaine are best captured through the sensing guidance of some bipartisan u s sensing commission continues to offer its help support and services to all the congress the executive the judicial branches and anyone else interested on the subject anyone who is interested in this important issue and would request that any congressional action including emergency amendment authority on behalf of the commission again thank you chairman scott and members of the committee for holding this very important hearing on the subject that the commission obviously feels is important and has felt so for many years thank you sir and i did go over my time and i guess life tenure doesn't help here and i'm sorry thank you sir mr chairman members of the committee my name is scott patterson i'm here and on behalf of joe castle lee 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 as one as an elected prosecutor from my home state of maryland but also as a member of the board of directors of the district maryland excuse me 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  cassilis 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 with the congress concerning the sentencing disparity between crack and powder cocaine the n d a agrees that some adjustment is warranted that the but not just that the one hundred adjustment would also we believe have severe negative consequences as to the effects of the national the nation's prosecutors to remove the destructive effects of crack and violence from our communities  has mr cassilis i've been a prosecutor for over thirty years almost thirty three years now is been my practice both in a small jurisdiction that i am currently the elected prosecutor in and large jurisdictions that i have served as an assistant  in our work has been active in successful both in task force within maryland and also cooperating with federal agencies and prosecutors from the office of the united states attorney for the state of maryland we we 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 that they receive in the 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 occur as a result of the trafficking of crack cocaine is going to be an ongoing problem in the matter of what the penalty aspects are that any legislation that comes out in our states congress congress concerning the disparity and or federal manner sentences the statement issued by mr castle 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  one and game four of the series a record still stands but i was also using drugs on a regular basis as were many of the major league baseball players at that time in one nine hundred eighty three i was convicted jays and my baseball career went downhill i ended up playing in mexico for the next six years where started back using drugs regularly i retired from baseball in one nine hundred ninety and returned to kansas all of us 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 there she was an undercover officer for the kansas city police department which i started to investigate me because of anonymous telephone calls over the next several weeks she accompanied me to my supplies house to purchase part of cocaine and each time she asked me to cook it i came to realize they've been taken off the streets at that time say my life they didn't take fourteen 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 had an addiction problem i came in contact with so many other people they had the same problem  also came in contact with a lot of people that had lives souness's because they were convicted of selling crack cocaine many of them were first time offenders and no criminal record and of violence in their case my case was very sad but there but there is was satir these were people these people were never going home after i spent fourteen years of my life in i have found a job working and can still work in construction and kansas city and i am in the process of getting back into a professional baseball i have been clean and sober for fifteen years and i have a strong spiritual foundation i am writing the book i am doing speaking engagements in and around you can see the area by the dangers of jokes and alcohol god has truly blessed my life i would like to say 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 th to leave prison before deal then i would do everything in my power to help them that is the main reason why i am sitting in just year today we have so many say cases of drug addicts being locked up and achievement on away we have so many families that are suffering right now because the son of a 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 make live my life as a free man i believe many more people would do the same thing if they are given the chance i'd like to thank you for inviting me to share the views of the national narcotics officers coalition my name's bob bushman i've been a law enforcement officer for thirty years i'm vice president of the n n always c which represents forty four associations with more than sixty nine thousand law enforcement officers nationwide one of think the subcommittee for working with us on critical public safety issues including passing both the berne justice  second chance act last year technically what our analysts and always see members do is we enforce laws against crime and illegal drugs and legislative bodies like congress put in place in human terms as we speak there are police officers sheriff's that better be glad to these predators purposely harm not only the user but the users family and the communities as well and in most instances our members are the only ones that stand in our way the devastation i saw in the one nine hundred eighty s and ninety's as a cop working crack cases was unlike anything we've ever seen the crack trade was responsible for dramatic increases in violent crime in our communities drive by shootings gang wars and home invasions became common citizens demanded tough measures to bring the situation under control and the current laws related sensing of crack offenders were a direct response to the desperate pleas of the law abiding citizens and families yes we continue to have significant drug problem in this country we know that but crack and cocaine has uses declined in the past twenty five years due in part we believe to tough criminal sanction is that both prevent drug use and compel cooperation of individuals to take down drug rings let me be clear we understand the sense of these around the sensitivities around the issue of the one hundred to one crack pot or disparity but we need you our members of congress to understand that we law enforcement officers should 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 were 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 read those neighborhoods of the ones who abuse them the most the drug dealers and gangs were criticised by some for not doing enough and by others for being too aggressive in our prosecution of drug violators tough drug sentences are 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 on 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 the peg of diapers in my car because often we didn't try changing diapers of kids who were being neglected and living in filthy conditions and some of these homes we've been asked about our views on the legislative proposals to reduce the crack pot or disparity while we believe that the listing law has been a valuable tool in reducing the impact of crack on communities we also realize that it has had a negative a pac 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 poller 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 a minimum penalty why should we continue to maintain tougher sentences for crack and for coke powder smoking crack leads to a sudden short rather it is the route of administration that accounts for the differences in its behavioral effects and quote the science pursuit 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 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 in 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 violence selling crack is more profitable than selling pot or coke if crack cocaine penalties  equal to that apology or there will be more incentive to sell crack in 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 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 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 in an oist he 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 and we look forward to working with you on this and the other important issues thank you thank you i was going to 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 a 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 jobs and if they are measured by the numbers of arrests they make they will make a lot of arrests i have witnessed drug sting that were solely focused on housing projects where sales were up to where to people driving up in cars from outside of that community and arresting low level street dealers selling crack is shooting fish in a barrel on the other hand going after major sellers and uses of powder cocaine often meant taking the time to develop leads in order to obtain search warrants for upscale homes and then face a 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 had the added advantage in leverage of giving the low level dealer a choice between state and federal prosecution if he or she was willing to lead them to the king pin 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 twenty two 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 recognize that we were spending considerable attorney resources on street drug crimes and not the serious and major drug that were intended targets under the federal anti drug abuse act of one thousand nine hundred six and eighty eight are reviewed the issues of my chief assistant united states attorney of our drug task force spoke with some of our judges and our district city a special agent in charge and made the decision that our office would not take five gram crack aces that were prosecutable in state courts and we increased our minimum prosecution guidelines to crack a says to fifty grams and focused our efforts on major drug dealers including cartels we were also very mindful that even fifty 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  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 prosecut disemployed obtain convictions by the numbers but to do justice i was never called soft on crime and i am the first to say that 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 we 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 five hundred grams of powder it is now time to correct the well known and understood mistake in our system of justice after more than twenty years multiple studies and recommendations from the united states sentencing commission and at least two generations of families and children torn by systemic imposition of imprisonment for having one hundred the amount of cocaine and their white counterparts it is surely not only not good policy but it it is surely not only good policy but it is good politics to correct this injustice this is what we would say as prosecutors that truth dictates and justice demands thank you for conducting these hearings and allowing me to speak to this important issue like you most of our chairman's gotten were i don't have lifetime tenure i'll try to stick to the time limits and close this  out let me just say you have my written testimony you know obvious that 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 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  sensing commission have shown us over many years roughly sixty 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 twenty five thousand dollars a year to incarcerate someone in federal prison so every time a judge is required to impose a mandatory five year sentence that's one hundred twenty five thousand dollars of taxpayer resources we already have many people in federal prison with untreated drug problems  you know if we care about resources we care about addressing the problem dealing with these low level cases and federal prison does not seem to be a very wise strategy secondly i think we've seen historically the crack been in appropriately premised on an exaggerated sense of violence associate with crack is violence is to with crack yes it is in the crack trade same as with powder and if we look back a hundred years any time a new drug comes along it's not at all unusual that her battles erupt over that and we have a epidemic of violence as it's sometimes called most of this in regard crack took place in the late one nine hundred eighty s 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 her fattal's 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 sensing guidelines or through dish until 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 penalties because of the violence associated with that that doesn't seem like it should be a terribly difficult thing to do that 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 and has to be perceived as fair and i think it's reasonable to say in many communities of color of 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 is a perception that the laws are unjust people are not making that 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 to have people convicted in the appropriate cases when serving on jury may be harmed because of this widespread perception of unfairness that 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 a growing sentiment that  the ratio of one hundred to one is clearly inappropriate and many people supporting the one to one 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 sensing commission's 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 are how much punishment is sufficient but not overly punitive to accomplish the goals of sensing composted 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 kimber of cases of clearly opened up new ways of thinking about these issues a sense a commission guideline changes it seems to me that is  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 thank 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 a using your children in the process of using drugs and all of that be incorporated into the sentencing guidelines for an individual case 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 that we certainly have the enhancements for the use of a minor that would apply in any criminal violation as well as the role in the office with regards to mit or enhancement role and many of the opportunities are within the guidelines system already and certainly they could be provided with regard to some of the other matters that you have mentioned also sir if in fact punishment 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  than someone where the conspiracy they have very little to do with actually was dealing unless 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 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 the that's the goal and that's what we'd like 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 waste the taxpayers money often violate common sense part of any new construct that frankly mr chairman we're also hearing those who are proponents of it want to have a comprehensive approach really at this point all the different points but as you consider it you're not taking a position on what we would do legislatively to mandatory minimums at this point and we are not you suggested the tougher sentences may have been responsible for lower drug use but i understand you're right do you have any studies that show that drug use was re has been lowered in those areas with more severe penalties 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 the shootings have gone down the numbers of murders in the communities that were running rapid with the crack dealing you have 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 i've seen some but i don't have any here to cite for you if you could provide those for the record mr mauer do you have any studies that show that the longer sentences actually reduce crime i think most of the deterrence literature in criminology suggest 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 in unfortunately most people don't expect to be caught has relatively little effect on adding to deterrence and most common davis you suggested that you 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 i wasn't suggesting that we stop suites or stop arresting low level dealers i was simply pointing out that lawn forth and resources i bet at both the state and federal level need to really focus on where the drug problems are all over it's community not just in the low income communities which are basically very easy pickings people have information pretty much like mr akin's 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 is it true or not that some street level person being picked up and arrested and given the five year mandatory minimums for that person will routinely be replaced on the street absolutely absolutely